[2024] UGHC 582

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL SUIT NO. 0035 OF 2019**

**JUNJU MUHAMMAD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

### **VERSUS**

**MASINDI MUNICIPAL COUNCIL :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

### **BEFORE: Hon. Justice Isah Serunkuma.**

#### **RULING**

This ruling arises from a preliminary objection raised by counsel for the defendant that the suit is incurably defective for being caught by limitation and discloses no cause of action against the defendant whatsoever considering the consent judgement signed by the plaintiff wherein this court decreed the suit land to belong to Uganda railways corporations and the plaintiff.

A brief background in this case indicates that the plaintiff initially lodged this suit against the defendant and Uganda Railways Corporation (*The 2 nd* 20 *Defendant then)*.

- Recovery of Ugx. 871.455.000/= (Eight hundred seventy-one million four hundred fifty-five thousand only), - A declaration that the plaintiff is the rightful landowner situated at plot no. 23 along Butiaba road Masindi district, - A declaration that the defendants are unlawfully evicting the plaintiff - A declaration that the plaintiff is the legal owner of the suit plot of land, - General & punitive damages and costs of the suit.

The plaintiff's case is that around 1988, the then Masindi town council under M. T. C/G. P. C Min No. 5/88 of the meeting held on the 18th of February 1988, allocated a 30 plot of land No. 23, hereinafter referred to as the suit land situated at Butiaba Road Masindi district. That the plaintiff was given a lease offer dated 22nd 1988 under LWB/3652 upon payment of the premium plus ground rent of Ugx. 8.330/= (Eight

thousand three hundred thirty shillings only) as per the copy of the lease agreement and payment receipts marked "A" & "B." the plaintiff immediately took possession of the same by constructing a there a permanent house having been allowed by the then Masindi municipal council upon approving his proposed plan on the 24th day of September 1990 under plan No. 61/90 *(Annexture "E")* and recommended by the town health inspector.

The plaintiff claims that he occupied and developed the suit plot from 1988 till 30th November 1994, when the 2nd defendant started eviction threats by writing several notices, the recent one being received on the 11th day of May 2011. He added that a conflict arose between the two. Still, they were later invited by the 1st 10 defendant for a meeting to get an amicable settlement, and thus, on the 13th day of January 1998, the 1st defendant agreed to offer the 2nd defendant an alternative plot in exchange for plots 19-

23 and 25-35 Butiaba road by a letter *Ref: M. T. C 11/13* marked *Annexture "G."*

After a successful negotiation, the town clerk of Masindi municipal council gave the plaintiff the go-ahead to build the structure/house. However, in 2004, after a long wait for the alternative plot, the chief engineer of Uganda Railways Corporation wrote to the plaintiff, stopping further construction (*Annexture "H."*). As a result of the defendant's actions, the plaintiff has suffered.

In their defense, the 1st defendant denied all the allegations and instead stated its intention to raise the above-named preliminary objections. The 1st 20 defendant also stated that the plaintiff was engaged several times by the 1st defendant with a view of offering him an alternative allocation or compensation as per the government Valuer's standard, and the same was frustrated when the plaintiff filed Civil Suit No. 873 of 1997. About the 2 nd defendant, a consent judgement was executed between the plaintiff and the 2nd defendant (Uganda Railways Corporation) on the 12th day of March 2020 on the following

terms.

- **1.** Uganda Railways Corporation is the registered proprietor and rightful owner of the suit land situated at plot 19-23 Butiaba Road Masindi. - **2.** The case against Uganda Railways Corporation (2nd defendant then) is withdrawn with no costs, and Uganda Railways Corporation takes vacant possession of the suit land. - **3.** The case between Junju Muhammad and Masindi Municipal Council proceeds for trial.

# *Representation & hearing*

Counsel Fahd Matovu of M/s Nakachwa, Matovu & Co. Advocates represent the plaintiff.

10 Counsel Ian Musinguzi of M/s Musinguzi & Co. Advocates represented the defendant. Both parties filed their written submissions, which have been considered herein.

# *Defendant's submission*

In his submissions, counsel relied on these issues, which he discussed jointly, namely.

- 1. *Whether Civil Suit No. 0035 of 2019 is barred by limitation for general damages of Ugx 5 billion, which allegedly arose in 1994.* - 2. *Whether the plaintiff owns the suit land, having entered a consent judgment in Masindi High Court Civil Suit No. 0035 of 2019 on the 12th day of March 2020 before His Worship Kintu Simon Zirintuusa declaring Uganda Railways Corporation as registered proprietor and owner of the same suit land.* - 20 3. *Whether the suit is frivolous and vexatious.* - 4. *Whether the plaintiff, who has already entered a consent judgement giving the suit land to Uganda Railways Corporation, can be declared the legal owner of the same.* - 5. *Whether the plaintiff has a cause of action for this court to entertain and pass a second judgement.*

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Counsel submitted that Order 7 rule 11(d) of the civil procedure rules which provides that a plaint shall be rejected where the suit appears from the statement in the plaint to be barred by law. Counsel also relied on Section 3(1) (a) of the Limitation Act Cap 80, which stipulates that no action founded on a contract shall be brought after six years from the date the cause of action arose, and Section 5 of the Act which provides that any person shall bring no action to recover any land after the expiration of twelve years from the date on which the right of action accrued. Counsel submitted that the instant High Court Civil Suit No. 0035 of 2019 is barred by limitation because the action for general damages of Ugx 5 billion, which allegedly arose in 1994, should have been brought in 6 10 years, or the suit should have been filed in 2001 or thereabout.

Counsel relied on paragraph 7 of the plaint in support of the fact that the cause of action arose in 1994 for which reason the suit is barred by time. Counsel also relied on paragraphs 4, 5 (a) & (b) of the plaint and submitted that this action is barred because the cause of action arose in 1994, but the plaintiff brought the case in 2019, yet the action suit should have been brought in 6 years from 1994 in 2001 against the defendant for breach of a contract.

In addition to the above, counsel submitted that the plaintiff is not the owner of the suit land, having entered a consent judgement in Masindi High Court Civil Suit No. 0035 of 2019 on the 12th day of March 2020 before His worship Kintu Simon Zirintuusa declaring 20 Uganda railways corporation as registered proprietor and owner of the same suit land. Counsel concluded that the plaint is thus frivolous and vexatious because the suit land was already decreed as belonging to Uganda Railways Corporation. Thus, the same court cannot again find in favour of the plaintiff by declaring that he is the owner of the suit land. Counsel added that it is an illegality for this court to determine who owns the suit land in light of the said consent judgement signed by the plaintiff and thus requested this court that the preliminary objection be allowed and the suit dismissed with costs.

*Plaintiff's submissions in reply.*


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In his response, Counsel informed this court that Uganda Railways Corporation, which had been sued alongside the defendant, is no longer a party to the instant suit, and the prayers against it were abandoned by the consent judgment, which was executed on the 12th day of March 2020. Counsel added that mindful of the said application, which is yet to be heard and determined by this honorable court, counsel proceeded to make his submissions in relation to the preliminary objections raised by the defendant (Masindi municipal council).

### *Whether the suit is time-barred.*

Counsel submitted that the plaintiff occupied and developed the suit land uninterrupted 10 until 1994, when Uganda Railways Corporation started eviction notices, and a conflict arose, prompting the defendant to invite both parties for a meeting to reach an amicable settlement. Counsel added that it was that premise that on the 13th day of January 1998, the defendant agreed to offer alternative land to Uganda Railways Corporation in exchange for the suit land as far as stated under paragraphs 5 (g) of the plaint. Counsel stated that the plaintiff at that time could not lodge a suit because the parties had seemingly reached an amicable settlement of the matter. On the 26th day of July 1999, the town clerk then of the defendant wrote to the plaintiff authorizing him to go ahead with the construction premised on the understanding that the matter had been settled.

Counsel submitted that from then; the plaintiff enjoyed quiet possession until 2004, 20 when the chief engineer of Uganda Railways Corporation wrote to him stopping further construction, to which the plaintiff engaged back & forth negotiations with the defendant and Uganda Railways Corporation in a bid to reach an amicable settlement. Counsel added that that's why the plaintiff's occupation of the suit land was not interfered with until the 20th day of March 2018 when Uganda Railways Corporation wrote to him a final notice to vacate the land since he had failed to meet the requirements to formally purchase the land under divestiture project by the privatization unit.

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Counsel added that on the 25th day of April 2018, the plaintiff wrote to the defendant requesting a solution within five days, or else he would take the matter to the courts of law since the defendant had failed to resolve the dispute for over 30 years despite several negotiations, thus instituting this suit in 2019.

Counsel relied on the case of *Elly B Mugabi vs Nyanza Textiles Industries Ltd [1992- 1993] HCB 227,* in which the court stated that a cause of action arises when a plaintiff's right is affected by the defendant's actions or omissions. Counsel concluded that the plaintiff's cause of action did not arise until 2018 due to the defendant's failure to comply with the plaintiff's request; hence, the instant suit is not time-barred.

### 10 *Whether the plaintiff has a cause of action against the defendant*

Counsel submitted that the three essential elements to support the existence of a cause of action were laid down in the case of *Tororo Cement Co. Ltd Vs. Frokina International Limited, Civil Appeal No. 0021 of 2001,* to include that the plaintiff enjoyed a right, the right has been violated, and that the defendant is liable. Counsel submitted that the plaintiff had a right over the suit land by the lease offer dated 22nd August 1998, by which he was allocated the suit land by the defendant, thus granting him a lease interest in the same. Counsel added that the plaintiff's right over the suit land was violated by the said defendant, who had knowledge that it had no ownership of it for which it has never made good of the same, because of which the plaintiff has suffered 20 economic loss and inconvenience. Counsel concluded, therefore, that the plaintiff has a cause of action against the defendant.

## *Whether the plaint is frivolous and vexatious.*

Counsel defined the term frivolous as per the Black's Law Dictionary 8th edition to mean lacking a legal basis or legal merit and the term vexatious to mean a suit instituted maliciously and without good cause. Counsel submitted that the current suit is neither frivolous nor vexatious because the plaintiff has a valid claim against the defendant

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having been allocated the suit land by way of a lease by the defendant's predecessor for which the plaintiff has never been compensated for the loss he incurred as a result of their negligence. In conclusion, counsel prayed that this court overrules the preliminary objection raised by the defendant and be pleased to determine the instant suit on its merits.

## *Court Analysis.*

After considering the parties pleadings, submissions, and the authorities raised, this court is required to consider only two issues:

*1. Whether the civil suit is barred by limitation.*

# 10 *2. whether there is a cause of action against the defendant.*

It would be prudent first to consider whether there is a cause of action against the defendant. According to **Mulla's Code of Civil Procedure**:

*"A cause of action means every fact which, if traversed, would be necessary for the plaintiff to prove to support his right to a judgment of the Court. In other words, it is a bundle of facts which, taken with the law applicable to them gives the plaintiff a right to claim relief against the defendants. It must include some act done by the defendant since, without such an act, no cause of action can accrue…. Everything which, if not proved, would give the defendant a right to an immediate judgment must be part of the cause of action… the cause of action must be antecedent to*

20 *the institution of the suit."*

This was further elaborated in the case of *Auto Garage & Another Vs. Motokov (No.3) (1971) EA. 514* Where at page 519, Spry, V. P, in his lead judgment, concluded that: -

*"I would summarize the position as I see it by saying that if a complaint shows that the plaintiff enjoyed a right, that the right has been violated, and that the defendant is liable, then, in my opinion, a cause of action has been disclosed, and any omission or defect may be put right by amendment."*

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Hence, in the current case, this court must consider the plaint and its annextures to ascertain whether there indeed exists a cause of action against the defendant, as was held in the case of *Narottam Bhatia & Another v Boutique Shazimi Ltd (SCCA No. 006 of 2009) [2010] UGSC 7,* where the Supreme Court noted that "……..*one must also look at the plaint and annexures thereto. One must also assume that the facts as alleged are true".*

The plaint filed by the plaintiff herein on the 29th day of October 2019 indicates the plaintiff's claim against the defendants (i.e., Masindi Municipal Council & Uganda Railways Corporation) for recovery of 871,455,000/= (Uganda shillings eight hundred 10 seventy-one million four hundred fifty-five thousand only) being the value of developments on the property at Masindi on Plot No. 23 Butiaba Road Masindi District. The other claim against the defendants is a declaration that the plaintiff is the rightful landowner situated at Plot No. 23 along Butiaba Road Masindi district, a declaration that the defendants are unlawfully evicting the plaintiff, a declaration that the plaintiff is the legal owner of the suit plot of land, general & punitive damages, and costs of the suit. However, before the trial could commence, a consent judgement was entered between the plaintiff and the 2nd defendant, declaring the latter the suit's owner, and withdrew the case against the same.

Since a consent judgement was entered for the 2nd Defendant, the subject matter 20 described in the plaint was declared to belong to Uganda Railways Corporation. This meant that the subject matter ceased to exist, from which the cause of action arose initially against both Uganda Railways Corporation and Masindi Municipal Council, the current defendant.

Clearly, the above facts revolve around one subject: the suit land. As already noted, the suit land was disposed of vide consent judgement between Uganda Railways Corporation and the plaintiff. It is only proper to conclude that the plaintiff has no cause of action against the current defendant.

With reference to whether the suit is time-barred, it is prudent to note that the law on limitation starts to run at the time when the cause of action arises. In the case of **Jamada**

K Luzinda Vs. Attorney General, Court of Appeal Civil Appeal No. 090 of 2012, it was noted that "It is trite that the principle that underlies the law of limitation is basically one that "once statute barred always statute barred" and the essence of the principle is that once a suit is statute-barred, any subsequent developments cannot revive it."

It is important to note that the complaint relied on by the defendant to raise this preliminary objection also included Uganda Railways Corporation as the second defendant. Hence, the time limitation must be considered as per the cause of action

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jointly raised against the two defendants. Having established that the plaintiff has no cause of action against the current defendant, I do not think there is a need to proceed with the limitation issue.

In the premises, Order 7 rule 11 (a) of the Civil Procedure Rules is to the effect that; "The plaint shall be rejected in the following cases—

(a) where it does not disclose a cause of action;"

Henceforth, the preliminary objection raised by the defendant is hereby upheld against the plaintiff and the suit is struck out with costs to the defendant.

I so order.

Dated and delivered on this 30^th Day of April 2024. $20$

**Isah Serunkuma JUDGE**