[2024] UGHC 931

## **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT FORTPORTAL**

### **HCT-01-CV-MA-048-2024**

#### **(ARISING FROM HCT-01-CV-CS-031-2023)**

**ATTORNEY GENERAL :::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

**1. MATAYO NGAMBENOHA 2. KABIGUMIRA DOVICO 3. KAMUGISHA CHARLES :::::::::::: RESPONDENTS 4. KYANDUGOMUKANWA ATANAZIO** *(and 5521 Others)*

## **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO**

### **RULING**

## **Introduction**

The applicant filed this application by way of notice of motion under provisions of section 98 of the Civil Procedure Act Cap. 282, Order 6 Rules 28 and 30 and Order 52 Rules 1 & 2 of the Civil Procedure Rules seeking the following orders:

- (i) The plaint in Civil Suit No. 31 of 2023 discloses no cause of action against the 1st defendant. - (ii) The plaintiffs' claim is barred by law of limitation. - (iii) Civil Suit No. 31 of 2023 is *res judicata.* - (iv) The plaintiffs are not entitled to the reliefs sought in the plaint.

(v) Costs of this application be provided for.

# **Background**

The respondents filed Civil Suit No. 31 of 2023 on their own behalf and on behalf of 5,521 others against the applicant seeking, inter alia; a declaration that their eviction on the suit land in Mpokya, Kabarole district, was unlawful and illegal, compensation for properties lost during their eviction, general damages and costs of the suit.

The plaintiffs claim that, at all material times they resided in Mpokya, Kabarole district up to 1992 when they were forcefully evicted from their land by the Government of Uganda. That after the eviction, the Government carried out a verification exercise and made a finding that 35,000 families had been evicted. However, the respondents have never been compensated.

In its written statements of defence, the applicant denied the plaintiffs' claims, asserting that the known evictees of Mpokya were compensated. The applicant also stated that the claim by the respondents was fictitious as the matter was res judicata since similar matters had been heard and adjudicated upon vide HCSS No. 102 of 2009 (Joseph Bamwebeihire & 3942 Others Vs. Attorney General), HCSS No. 468 of 2019 (Alex Nduhura & 1243 Others v. Attorney General and Kabarole District Council), and HCSS No. 246 of 2003 (Byaruhanga John & 2499 Others v. Attorney General).

Counsel for the applicant filed this application raising several preliminary objections, to wit; Civil Suit No. 31 of 2023 does not disclose a cause of action, the suit is barred by law of limitation, and the suit is *res judicata*.

# **Grounds for the application**

Grounds for the application are set out in the affidavit in support of the application deponed by Mr. Isingoma Alex, a Senior State Attorney with the applicant, the gist of which is that:

- (a)The respondents' right of action accrued in 1992 when the alleged eviction took place, and the suit was filed 29 years after the right of action arose. - (b)The applicant was a party in HCCS No. 207 of 1993; Benon Turyamureba & 1230 Others V. Attorney General where the evictees of Mpokya were compensated. - (c) Due to disagreements among the beneficiaries, they filed HCMA No. 555 of 2018 where the court ordered a verification exercise of Mpokya evictees. - (d)Over the years, several suits, to wit; HCSS No. 102 of 2009 Joseph Bamwebeihire & 3942 Others v. Attorney General, HCSS No. 468 of 2019 Alex Nduhura & 1243 Others v. Attorney General and Kabarole District Council, and HCSS No. 246 of 2003 Byaruhanga John & 2499 Others v. Attorney General have been filed against the applicant where the plaintiffs have been compensated.

- (e) The instant suit is *res judicata* as the same matter was heard and determined by the courts of law in which the government agreed to compensate the claimants. - (f) The instant suit is statute-barred as the respondents' right of action occurred in 1992.

The respondents filed an affidavit in reply, deponed by Matayo Ngambenoha, the 1st respondent, opposing this application on the following grounds:

- (a)The applicant has continuously since the eviction of 1992 been engaging the respondents promising to settle the claims of Mpokya evictees as seen in the minutes of the meeting between the Attorney General and representatives of Mpokya evictees held on the 24th of January 2002, and the subsequent judgement in HCCS No. 207 of 1993, and HCMA No. 192 of 2000. - (b)The suit is not res judicata because the respondents have never lodged a claim/suit of a similar nature against the applicant or based on similar facts and such a suit was determined by a court of competent jurisdiction. - (c) The respondents have a strong cause of action against the applicant. - (d)There are precedents that the respondents shall rely on to prove their case.

- (e) Equity and fairness demand that the respondents be adequately compensated for the properties destroyed during the brutal eviction of the respondents by Government agents. - (f) The cabinet committee report of December 1992 made several conclusions and recommendations that provided for the resettlement and compensation of Mpokya evictees including the respondents.

## **Representation and Hearing**

At the hearing, the applicant was represented by Ms. Racheal Atumanyise and Mr. Kawalya Ronald. Mr. Tibamanya Urban represented the respondents. The hearing proceeded by way of written submissions. Counsel for the applicant filed submissions which I have considered in this ruling.

### **Issues for determination**

The issues for determination are:

- (i) Whether the suit is barred by law of limitation. - (ii) Where the plaint discloses a cause of action. - (iii) Whether the matter is res judicata.

### **Consideration by Court**

### **Issue 1: Whether the suit is barred by law of limitation**

## **Submissions by Counsel for the Applicant**

Counsel for the applicant argued that the suit is barred by the law of limitation having been brought after 12 years from the date on which the right of action arose. Counsel for the applicant cited section 5 of the Limitation Act Cap 290.

Counsel or the applicant argued that an action for trespass deals with possessory rights to land and thus falls squarely within the scope of the actions to recover land.

Counsel for the applicant argued that the respondents' right of action accrued in 1992 when the alleged eviction took place, and the respondents filed Civil Suit No. 31 of 2023 on the 29th of November 2021 after 29 years when the cause of action arose.

Counsel for the applicant referred this court to the case of *Odyek Alex & Another v. Gena Yokonani & Others HCCA NO. 09 of 2017* where the court held that the period of limitation begins to run against the respondent from the time the cause of action accrued until when the suit is filed.

Counsel for the applicant also referred this court to section 16 of the Limitations Act and argued that the respondents had allowed their claim to be extinguished by their inaction and therefore they were not entitled to any compensation.

# **Court's Analysis of Issue 1**

Under Order 6 Rule 28 of the Civil Procedure Rules, any party is entitled to raise by his or her pleading any point of law, and any point so raised shall be disposed of by the court at or after the hearing; except that by consent of the parties, or by order of the court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing.

In the case of *Soroti Municipal Council v. Akello Juliet & Another HCMA No. 15 of 2020*, Hon. Justice Dr. Henery Peter Adonyo while quoting *the Oxford Law Dictionary on page 193* defined a preliminary point of law as a question of law ordered to be tried before the facts of the case are determined.

In *Yaya Farajalla v. Obur Ronald & 3 Others CACA No. 81 of 2018*, the court noted that a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of pleadings and which if argued as a preliminary point may dispose of the suit.

In the instant case, the point of law raised is to the effect that the suit is barred by the law of limitation under the provisions of section 5 of the Limitations Act Cap 290.

Section 5 of the Limitations Act provides that:

*"No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person."*

As rightly argued by counsel for the applicant, an action of trespass is within the scope of actions to recover land *(see: Kiwanuka Fredrick Kakumutwe v. Kibirige Edward (supra)).*

It is the argument of counsel for the applicant that this is an action of trespass and that since the cause of action arose in 1992 and the matter was filed in 2021; 29 years later after the date on which the right of action accrued, then the matter is barred by the law of limitation.

The respondents do not contest the fact that their right of action accrued in 1992 but argue that the applicant has since 1992 variously engaged the respondents with the view of settling their claims, but the settlement has not materialized to date. The respondents attached minutes of a meeting held on 24th January 2002 between the Attorney General and representatives of the Mpokya evictees. The respondents also referred this court to several court cases where the applicant has compensated Mpokya evictees.

I have perused the minutes of the meeting held on the 24th of January 2002 between the Attorney General and the representatives of Mpokya Evictees. I note that none of the respondents herein was in attendance at the said meeting.

Additionally, the respondents herein are not parties to the cases referred to where the government compensated the Mpokya evictees.

I note that this case is in four corners with that of *Amos Kiiza & 9,300 Others v. Attorney General & Another HCCS No. 35 of* *2020* where the 1st defendant also raised a preliminary objection on the law of limitation. In that case, the 1st plaintiff, Amos Kiiza, pleaded a fresh accrual of the right of action under section 22(1) of the Limitation Act on account that the government had admitted liability through various court cases which the respondents herein have referred to.

In upholding the preliminary objection raised by counsel for the 1st defendant, this court observed thus:

> *"In my view, the import of section 23 of the Limitations Act is that at the very minimum, the plaintiff pleading acknowledgement of title in the land, like in the instant case, must show the court that acknowledgement, so pleaded, was in writing and signed by the person making it or his or her lawful agent and that acknowledgement was made to the person pleading it, personally, or his or her lawful agent…the acknowledgement of liability alleged by the plaintiffs is about court cases where the plaintiffs herein are not parties and none of the parties in those cases is said to be a lawful agent of the plaintiffs herein. There is nowhere it is pleaded in the plaint and its annexures that the acknowledgement of liability, so pleaded by the plaintiffs, was in writing and signed by any of the defendants or their lawful agents."*

This court went on to observe that:

*"It is immaterial that the Attorney General negotiated cases whose nature of claims are based on facts that are more or less similar to the instant suit. Whatever admissions made by the Attorney General in those cases, where the plaintiffs herein are not parties, do not amount to the acknowledgement within the meaning of sections 22 and 23 of the Limitation Act."*

In the instant case, I find that the right of action of the respondents accrued in 1992. The admissions, concessions or acknowledgements of the Attorney General in cases referred to by the respondents, where the respondents were not parties, cannot give a fresh accrual to their cause of action.

The respondents did not plead any disability that prevented them from filing Civil Suit No. 31 of 2023 before the expiration of 12 years and therefore they can't be exempted from the law of limitation.

As it was held in the case of *Dr Arinatwe Raphael & 37 Others v. Attorney General HCCS N0. 21 of 2012*, statutes of limitation are in their nature strict and inflexible enactments. Quoting the case of *Hilton Vs Sulton Steam Laundry [1946] 1 KB 61 at 81*, the court noted that:

> *"But the statute of limitation is not concerned with merits, once the axe falls, it falls, and a defendant who is fortunate enough to have acquired the benefit*

## *of the statute of limitation is entitled, of course, to insist on his strict rights."*

I hasten to add that the statutes of limitations are not concerned with the merits of the case but with protecting a potential defendant from defending stale claims. Statutes of limitations also impose a duty on the plaintiffs to diligently pursue their claims without unreasonable and unexplained delays.

It is therefore my finding this suit is statute-barred barred having been filed in 2022, nearly 30 years after the right of action accrued.

Order 6 Rule 29 of the Civil Procedure Rules is to the effect that if, in the opinion of the court, the decision of the point of law substantially disposes of the whole suit, or of any distinct cause of action, ground of defence, setoff, counterclaim, or reply therein, the court may thereupon dismiss the suit or make such other order in the suit as may be just.

For the reasons given above, the finding on issue one disposes of the entire application. I will, therefore, not waste time in determining the merits of issue 2.

Resultantly, the preliminary objection raised by counsel for the applicant on limitation is upheld and Civil Suit No. 31 of 2023 is hereby dismissed for being barred by the law of limitation.

The applicant is awarded the costs of this application and Civil Suit No. 31 of 2023 against the 1st – 4th respondents.

It is so ordered.

Dated at Fort Portal this 19th day of September 2024.

**Vincent Emmy Mugabo Judge**