[2025] UGHC 303

#### **THE REPUBLIC OF UGANDA**

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

## **HCT-17-LD-MA-0253-2023**

# **(Arising from HCT-17-LD-CS-0182-2023)**

# **(ARISING FROM LAND DIVISION CIVIL APPEAL NO. 103 OF 2019)**

## **ARISING FROM LUWERO CHIEF MAGISTRATE'S COURT LAND SUIT NO. 050 OF**

#### **2018)**

## **JOHN KINTU KALONDE …………….………………APPLICANT**

## **VERSUS**

- **1. SSEMUJJU JOSEPH** - **2. LUBOWA HENRY** - **3. LUBUWA RONALD** - **4. SEBUUFU DENNIS (Beneficiaries of the estate of the late Lubowa Kalonde Lawulensiyo) …………………………. RESPONDENTS**

## **BEFORE: HON LADY JUSTICE HENRIETTA WOLAYO**

# **RULING**

## Introduction

- 1. By Chamber Summons dated 25.8.2023, the applicant moved court under Section 98 of the Civil Procedure Act Cap 282, Order 6 rule 18, 28 and 29, Order 7 rule 11 of the Civil Procedure Rules for orders that; - a) The plaint in Civil Suit No. HCT-17-LD-0182-2023 be struck out for being time-barred. - b) The plaint in Civil Suit No. HCT-17-LD-CS-0182-2023 be struck out for not disclosing a cause of action against the first, second and third respondents/plaintiffs. - c) The said plaint be struck off for being vexatious, frivolous, devoid of merit and an abuse of court process. - d) The costs of this application be provided for. - 2. The grounds in support of this application are contained in the affidavit in support of John Kintu Kalonde, the applicant and supplementary affidavits in support of

deponents; Nankya Lighton and Muwawu Juma (second defendant) and an affidavit in rejoinder deposed by John Kintu Kalonde, the applicant. The first respondent Ssemujju Joseph, deposed an affidavit in reply on behalf of the second, third and fourth respondents.

3. When the matter came up for hearing on 5.10.2024, I directed both parties to file their written submissions along the following schedule; applicants by 20.6.2024, respondents by 22.7.2024 and a rejoinder by 31.7.2024. Both parties complied and I have carefully their considered submissions.

#### Background information

*LUWERO Chief Magistrate's Court Civil Suit No. 050 of 2018 Semujju Joseph, Lubowa Henry, Lubowa Ronald, Muteesasira Charles, Sebuufu Davis, Mwanje Bruhan Kalonde V John Kintu Kalonde*

- 4. On 4.5.2018, Semujju Joseph and five others sued John Kintu Kalonde for fraudulent acquisition of legal title to land on which their late father Lubowa Kalonde owned a kibanja measuring approximately one acre plus. The land is situate opposite post office in Wobulenzi town. - 5. In his written statement of defence, Kintu denied the claim and averred that he is the registered proprietor on Bulemezi Block 159 Plot 3597 at Wobulenzi with no kibanja interest on it and he has been in possession since 2002 when he purchased it. - 6. At commencement of the hearing by the chief magistrate, counsel for the defendant raised a preliminary objection to the pecuniary jurisdiction of the court and intimated that the subject matter was valued at over Ushs. 50million, which is above its jurisdiction. The trial magistrate HW Munobe overruled the said preliminary objection and ordered that the hearing of the suit proceeds.

## *Land Division Civil Appeal No. HCT-00-LD-CA-0103-2019*

7. The defendant/appellant Kintu Kalonde being dissatisfied with the said orders filed an appeal under HCT-00-LD-CA-0103-2019 for a declaration that the orders of the court below are unlawful and illegal and to have them set aside. My sister Kanyange J, held that the trial magistrate had no jurisdiction to entertain the proceedings in Civil Suit no. 050 of 2018, she declared the said ruling and orders a nullity and accordingly set them aside.

## *Land Civil Suit No. HCT-17-LD-CS-0182-2023*

- 8. Semujju and others then brought a suit in the High Court at Luwero in July 2023 in their capacity as beneficiaries of the estate of the late Lubowa Kalonde Lawulensiyo against John Kintu Kalonde, Muwawu Juma and Namazzi Rebecca trading as Dawson Fuel Filling Station) for trespass, fraudulent, illegal acquisition and registration of a mailo interest on the suit kibanja comprised in Bulemezi Block 159 Plots 3293 and 3597 (formerly, Plot 1151) land at Wobulenzi and for an order for a permanent injunction against the defendants. - 9. Kintu denied the claim and averred that they lawfully obtained legal interest from Nankya the registered proprietor in 2002 when he purchase the legal title from Nankya and got registered as proprietor for Bulemezi Block 159 plot 3597 land measuring 0.378 hectares. - 10. Subsequently in 2014, Kintu curved out Plot 3292 that he transferred to Juma Muwawu who in turn transferred to Namazzi Rebecca, and himself and a minor as joint tenants.

# *HCT-17-LD-MA-0253-2023 ARISING FROM HCT-LD-SC-0199-2023 SEMUJJU AND THREE OTHERS V JOHN KINTU KALONDE AND TWO THERS.*

11. In the chamber summons filed in August 2023, Kintu sought to strike out the plaint on the following grounds: Limitation; failure to disclose a cause of action; abuse of the court process.

- 12. Kintu and others had raised a preliminary objection in their written statements of defense based on the same grounds, namely, - i. The plaint does not disclose a cause of action against them since the suit land does not form part of the estate of the late Lubowa Kalonde Lawulensiyo; - ii. The suit is time barred as it ought to have been filed in 2002 when the first defendant took possession of the suit land/kibanja. - 13. The chamber summons is supported by the affidavits of Kintu and Lighton Nankya while Semujju and others relied upon the affidavit in reply of Semujju Joseph. Both parties filed written submissions which I have carefully considered.

#### Issues framed for determination

- a. Whether Civil Suit No. HCT-17-LD-CS-0182-2023 is time-barred. - b. Whether the plaint in HCT-17-LD-CS-0182-2023 discloses a cause of action against the first, second and third defendants. - c. Whether the suit is an abuse of the court process.

#### Issue No. 1: Whether Civil Suit No. HCT-17-LD-CS-0182-2023 is time-barred

- 13. **Section 5 of the Limitation Act Cap 290** limits time within which to bring an action for recovery of land to within shall twelve years from the date the right of action accrued to him or her. - 14. The import of the above provision is that time starts running from the date the plaintiff becomes aware of the defendant's adverse possession of the land. Therefore, failure to bring an action within the twelve-year period would extinguish the plaintiff's interest and claim against the defendant/adverse possessor.

Applicant's case

- 15. The applicants' case is that the suit is bad in law for having been filed out of time and that twenty-one years have lapsed since he purchased the suit land in 2002 from a one Nankya Lighton and took possession of the same without any encumbrance or conflicting claims as to ownership from the respondents/plaintiffs. - 16. I have examined a sale agreement between Kintu and Nankya and it is evident that the sale agreement was made on 25.2.2002 and witnessed by Mwanje Buruhan Kalonde and Haji Dirisi Kintu. Buruhane Kalonde was one of the defendants in the suit before the chief magistrate's court C/S No. 050 of 2018. - 17. It is not disputed that Kintu then sold the land in 2014 to the co-defendants Muwawu Juman and Namazzi Rebecca. It is also not disputed that in 2014, Kintu sold the legal interest of part of the land on which the kibanja sits to the second and third defendants who constructed a petrol/fuel station DAWSON.

#### Respondents' case

- 18. The case for Semujju and others is that the suit land was owned by their late father, Lubowa Kalonde Lawulensiyo who utilized it for cultivation for the sustenance of the family and that his last Will which is attached to the chamber summons as well as the Plaint. - 19. According to the Will which has never been proved in probate, the testator was clear that he did not bequeath the said suit kibanja to anyone but rather left it to his wife for purposes of cultivation of food for sustenance. - 20. Semujju and others affirm that since childhood, together with other beneficiaries, they have cultivated crops and planted eucalyptus trees on the suit kibanja save for the portion encroached upon by the second and third defendants as shown in photographs attached to their affidavit in reply.

- 21. Kintu did not rebut this claim that Semujju and others are in possession of part of the suit land which means it is safe to conclude that while Muwawu and Namazzi are on 0.101 hectares comprised in Plot 3292, Semujju and others are in possession of the rest of the land that was formerly Block 159 Plot 1151. - 22. Counsel for the respondent submitted that respondent's cause of action arose in 2016 when the second and third defendants encroached on the suit kibanja and as such, the suit is not barred by limitation.

#### *Resolution of the issue on limitation.*

- 23. What is unique about this dispute is that Semujju and others challenge the legal interest yet their father owned the kibanja interest. Moreover, Kintu, Semujju, Lubowa Henry and Sebuufu Dennis are siblings which makes them all beneficiaries in the estate of their late father. - 24. Since Semujju and others are in possession of part of the suit land, the question of being time barred with respect to the kibanja interest of the portion they occupy is a question of fact to be proved at the trial. Therefore, for the time being, I decline to pronounce myself on whether the suit is time barred with respect to the portion of kibanja the plaintiffs occupy. - 25. As for the portion now described as Plot 3292, the answer is tied up with the second issue.

Issue No. 2: Whether the plaint in HCT-17-LD-CS-0182-2023 discloses a cause of action against the first, second and third defendants.

26. **Order 7 Rule 11(a) of the Civil Procedure Rules** states that a plaint shall be rejected where it does not disclose a cause of action. Citing **Halsbury's Laws of England Fourth Edition**, Counsel for Kintu rightly submitted that a cause of action means a factual situation the existence of which entitles one person to obtain from the other a remedy against another person. The party complaining must show that he had a right; that right had been violated and the defendant is responsible.

- 27. Evidently as persons in possession of part of the disputed kibanja as depicted by the banana stems and eucalyptus trees in the pictures attached to the affidavit in reply of Semujju, per se the siblings have a right and that right was violated when Kintu bought the mailo interest without their participation and had the entire land on which the kibanja sits, titled in his names. - 28. By the time Semujju and others sued, title for 0.101 hectares of the suit land had been curved out of the kibanja and a third party (Muwawu) had obtained legal title for plot 3292. - 29. Muwawu and Namazzi have had legal title to Plot 3292 since 2014 and it is in 2023 that they were joined to the suit after a petrol station was up and running. As held in **Erina Lam Omgon V Opoka and another (Civil Appeal No. 0091 of 2019) 2020 UGHC 185(28 September 2020)**, a Court of equity will not allow an owner of land, who permitted a third party to expend money on the land based on the supposition that the land was his or her own, afterwards to assert his or her title to the land. For this reason, a cause of action is not disclosed against the second and third defendants who have already developed their plot. - 30. As for the first defendant Kintu, he is a beneficiary in the estate of their late father and has an equitable interest in the kibanja therefore he is deemed to have disposed of his share in the unregistered kibanja interest located on Plot 3292. - 31. Regarding the rest of formerly Plot 1151, Semujju and others have a cause of action against Kintu having acquired a legal title over it without their participation as equal beneficiaries in the kibanja of their late father.

#### Whether the suit is an abuse of the court process

32. Having discussed the two substantive issues of limitation and failure to disclose a cause of action, the suit is not an abuse of the court process.

#### Summary of findings

- 33. On the issue of whether the suit is time barred, I have found that since Semuju and others were in possession of part of the suit land, the issue is a question of fact to be proved at the trial. - 34. On the second issue, I have found that the plaint does not disclose a cause of action against Muwawu and Namazzi because Kintu has an equitable interest in the kibanja in issue and is deemed to have acquired legal title to his equitable interest in the kibanja. It is this title he lawfully sold to the two defendants Muwawu and Namazzi. Therefore, the plaint does not disclose a cause of action against the two defendants. - 35. As for the rest of the suit kibanja which sits on Plot 1151 acquired by Kintu, the plaint discloses a cause of action against Kintu in respect of the kibanja and the legal title principally because all siblings have an interest in the kibanja interest which was subsumed in the legal title when title changed from Nankya to Kintu one of the siblings without the input of the rest of the siblings. - 36. In other words, just as a mailo owner cannot sell land to a third party without giving an option to the tenant in occupation, Nankya could not sell the kibanja previously owned by a deceased person without disclosing this intent to family which includes the plaintiffs and their brother Kintu. Disclosure to only one member of the family did not meet the requirements of **Section 36 of the Land Act Cap.236** especially when the original owner was deceased and there was no legal representative. Lastly, the suit is not an abuse of the court process.

- 37. The preliminary objection succeeds only in as far as the plaint does not disclose a cause of action against Muwawu and Namazzi, the second and third defendants. Accordingly, the suit is struck out as against them. - 38. In the meantime, parties are encouraged to go for mediation before court annexed mediator Harriet Nakandi and report back to court in thirty days. Costs in the cause.

# **DATED AT LUWERO THIS 6TH DAY OF MARCH 2025**

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**LADY JUSTICE HENRIETTA WOLAYO** Legal Representation M/s DeMott Law Advocates for the Applicant Katumba & Co Advocates for the Respondents