[2024] UGHC 1120

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **HCT – 01 – CV – LD – CS -NO. 0035 OF 2013 BEATRICE KABATALYA :::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

**(Suing as a beneficiary of the Estate of the late Evasta Kabajojo)**

#### 6 **VERSUS**

#### **1. MUKIIDI DAN**

# **2. AUGUSTINE RUTARO KOMWISWA :::::::::::::::::::: DEFENDANT** 9 **BEFORE: HON. JUSTICE VINCENT WAGONA JUDGMENT**

#### **Introduction:**

The plaintiff sued the defendants claiming ownership of land comprised in Mwenge Block 48, plots 1 to 12 measuring **643 acres**, arising from the estate of 15 the late Kosiya Komwiswa and D. B Bwiruka.

The plaintiff contended that the suit land or part thereof had been illegally 18 registered in the names of the defendants and that any further subdivision that had been carried out in respect of the suit land was null and void and sought the following reliefs: an order directing the Commissioner Land Registration to cancel

21 all certificates of title issued accruing from the illegal sub-division; an order directing the Commissioner Land Registration to register the plaintiff as the proprietor of the suit land; a declaration that the suit land belongs to the plaintiff as

24 the only surviving child of Evasta Kabajojo; an order vacating the caveat lodged by


the 1stand 2nd defendants on land comprised in Block 48, Plots 9, 10, 11 and 12; a permanent injunction, general damages and costs of the suit.

#### **The Case of the Plaintiff:**

- 6 The plaintiff is a daughter of the late Evasta Kabajojo whose mother was Sarah Kibiihire Ikabinga. The suit land originally belonged to the late Nasanairi Mugurura who sold it to the late Sarah Kibiihire Ikabinga in 1934. Sarah Kibiihire - 9 Ikabinga gave 70 cows to Elasto Bajenja to help her buy land for her 3 children, namely, Yositasi Rwakaikara, Evasta Kabajojo and Maria Ndagano. Elasto Bajenja and Luzaro Kiiza Basigara identified the suit land for purchase. Elasto Bajenja - 12 later brought Sarah Kibihire Ikabinga and her said 3 children and showed them the suit land and they settled thereon in 1935. That Elasto Bajenja had purchased the land on behalf of Sarah Kibiihire Ikabinga but refused to hand over the purchase 15 agreement and certificate of title. Sarah Kibiihire Ikabinga died in 1949.

It was the case of the plaintiff that after the death of Yositasi Rwakaikara, Evasta 18 Kabajojo and Maria Ndagano who were the children of Sarah Kibiihire Ikabinga, then Beatrice Bonabana Bwiruka, Augustine Rutaro and the defendants started claiming ownership of the suit land and lodged caveats on the same. That the suit 21 land was then fraudulently subdivided without the knowledge and consent of the children of Sarah Kibiihire Ikabinga who were the beneficial owners. It was contended that the registration of Lazaro Kiiza and Elasto Bajenja as proprietors of the suit land on 4 24 th October 1935 was procured through fraud.


#### **The Case of the Defendants:**

- 3 The defendants pleaded that the plaintiff had no cause of action and that the suit was time barred, and they responded that the suit land did not belong to the plaintiff or her late mother Evasta Kabajojo and that she had never owned or used - 6 the suit land. The defendants contended that they are the beneficial owners on the suit land, having obtained it from their parents, while parts of the suit land belong to other people. It was the case of the defendants that in 1977 after the death of - 9 Kosia Komwiswa, the suit land was left in the hands of Kezia Basemera and the defendants had occupied and utilized the suit land to-date without any lawful claim from the plaintiff.

The defendants contended that the plaintiff later unlawfully obtained letters of administration over the estate of the late Daniel Bwiruka in Administration Cause

- 15 No. 07 of 2017. The beneficiaries then filed Civil Suit No. 25 of 2017 against the plaintiff, for revocation of the said grant of letters of administration. It was averred that the plaintiff was fraudulent when she applied for letters of administration over - 18 the estate of the late Daniel Bwiruka when she was not a beneficiary.

#### **Issues:**

At scheduling, three issues were framed for determination that is:

- **1. Who is the lawful/rightful proprietor of the suit land?** - 24 **2. Whether the defendants are trespassers on the suit land?** - **3. What remedies are available to the parties?**


I identified the following additional issues arising from the defendants' Amended Written Statement of Defence filed in court on 30th October 2020:

## 3 **4. Whether the plaintiff has a cause of action against the defendants.**

**5. Whether the plaintiff's suit is time barred.**

## 6 **Representation and Hearing:**

The plaintiff was first represented by an advocate and later chose to represent 9 herself while Mr. Richard Bwiruka of M/s Kaahwa, Kafuuzi, Bwiruka and Co. Advocates appeared for the defendants. A schedule to file written submissions was issued and only the plaintiff complied.

# **CONSIDERATION BY COURT:**

#### 15 **Issue No. 5: Whether the plaintiff's suit is time barred.**

The principal claim by the plaintiff is for recovery of land as she seeks a 18 declaration that the land belongs to her as the surviving beneficiary of the estate of her late mother, Evasta Kabajojo, although she included an axially claim of trespass.

Sction 5 of the Limitation Act is to the effect that an action for recovery of land should be brought within 12 years from the date the cause of action arose. Section 24 11(1) adds that in the event of a claim for land, the cause of action crystalizes from the time the person is dispossessed of his or her land. *(See Odyek Alex & Anor v*


*Gena Yokonani, Civil 20Appeal No, 09 of 2017 & Kasoya Justine & Anor v William Kaija & 3 others Civil Suit No. 6 of 2015).*

Section 25 of the Limitation Act however provides for exceptions where time may be postponed and provides that:

- 6 **25. Postponement of limitation period in case of fraud or mistake** *Where, in the case of any [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) for which a period of limitation is prescribed by this Act, either—* - 9 *(a) the [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) is based upon the fraud of the defendant or his or her agent or of any person through whom he or she claims or his or her agent;* - *(b) the right of [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) is concealed by the fraud of any such person as is* 12 *mentioned in paragraph (a) of this section; or*

*(c) the [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) is for relief from the consequences of a mistake,*

- *the period of limitation shall not begin to run until the plaintiff has* 15 *discovered the fraud or the mistake, or could with reasonable diligence have discovered it; but nothing in this section shall enable any [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) to be brought to recover, or enforce any charge against, or set aside any* 18 *transaction affecting, any property which—* - *(d) in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the* 21 *purchase know or have reason to believe that any fraud had been committed; or*

*(e) in the case of mistake, has been purchased for valuable consideration,* 24 *subsequently to the transaction in which the mistake was made, by a*


# *person who did not know or have reason to believe that the mistake had been made.*

Therefore under section 25 (a) of the Limitation Act where the suit is based upon the fraud of the defendant or his or her agent or of any person through whom he or 6 she claims or his or her agent, the period of limitation does not begin to run until the plaintiff has discovered the fraud or the mistake, or could with reasonable diligence have discovered it. Determination of when the party pleading this 9 exception could with reasonable diligence have discovered the fraud or the mistake constituting the cause of action depends on the circumstances and evidence of each case. To invoke these exceptions, a litigant must plead and demonstrate the 12 grounds with evidence, upon which he or she could claim exemption, failure of which the suit is time-barred, the court cannot grant the remedy or relief sought and must reject the claim **(see** *Iga v. Makerere University [1972] EA 65).*

Order 7 rule 6 of the Civil Procedure Rules also provides that *w*here a suit is instituted after the expiration of the period prescribed by the law of limitation, the 18 plaint should show the grounds upon which the exemption from that law is claimed. This requirement was considered by the Court of Appeal in *Uganda Railways Corporation v. Ekwaru D. O and 5104 others, C. A. Civil Appeal No.185*

- 21 *of 2007 [2008] HCB 61***,** where it was held that if a suit is brought after the expiration of the period of limitation, and no grounds of exemption are shown in the plaint, the plaint must be rejected *(see also Murome Sayikwo v. KukoYovan* - 24 *and another [1985] HCB 68).* In *Francis Nansio Michael Vs NuwaWalakira*


*(1993) VI KALR 14* the Supreme Court held that clearly if the action is time barred then that was the end of it.

In this case, it was averred in the amended plaint that Evalisto Bajenja after purchasing the land on behalf of Sarah Kibiihire in 1934, did not show her the sale 6 agreement or the certificate of title. That Sarah Kibiihire lived on the suit land from 1935 to 1949 when she fell sick and died. That Sarah Kibiihire's son Yositasi Rwakaikara lived on the suit land until 1945 when he died. That Sarah Kibiihire's 9 daughter Evasta Kabajojo the mother of the plaintiff lived on the suit land up to 1938 when she got married and later fell sick and died in 2006. That Sarah Kibiihire's other daughter Mary Ndagano left the suit land in 1950 to go and nurse 12 her sick sister Evasta Kabajojo. That after the death of the 3 daughters of Sarah Kibiihire, the defendants started claiming ownership of the suit land and in a meeting of 9/10/2009, they produced dubious documents to support their 15 ownership and also lodged caveats against the suit land.

The particulars of the alleged fraud were stated in paragraph 5 of the amended plaint filed in court on 27 18 th November 2029 as follows:

## **5. PARTICULARS OF FRAUD ON PART OF THE DEFENDANTS**

- 21 *i. Falsely representing that the suit land belonged and/or formed part of the estate of the late KOSIYA KOMWISWA and D. B. BWIRUKA.* - *ii. ELASTO BAJENJA purchasing the suit land on behalf of the children* 24 *of SARAH KIBIIHIRE and started colluding, conniving and scheming to deprive their interest by failing/refusing to forward the sale*


*agreement and certificate of title of the suit land to the children of SARAH KIBIIHIRE.*

- 3 *iii. Fraudulent / or unlawful registration of LAZARO KIIZA and ELASTO BAJENJA as proprietors on the certificate of title of the suit land on 4th October, 1935 when at the time, SARAH KIBIIHIRE and her children* 6 *were staying on the suit land.* - *iv. The fraudulent / or unlawful subdivision of Block 48 Plot 1 into Block 48 Plots 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 to defeat the interest of the* 9 *children of the late SARAH KIBIIHIRE IKABINGA. Plot 2 was initially registered in the names of LAZARO KIIZA under Instrument No. F. P. 5475 on 31-10-81 and later on in the names of DR. ULRICH* 12 *KAJWIGA RWAKIHEMBO under Instrument No. F. P.5473 dated 28- 08-81.* - *v. Fraudulent sale of land twenty (20) acres by the 2nd defendant to* 15 *Bushenyi Sugar Factory located in Katara to grow sugar canes, Charles Munyagabi, Mande and Kyaligonza Kahwa, Kusemererwa and his son, while the case is still in Court with the intention of rendering* 18 *the head suit nugatory.*

Although the plaintiff did not expressly state that that she would be invoking the 21 exception under 25 (a) of the Limitation Act, she pleaded the factual grounds upon which she can claim the exemption as required by Order 7 rule 6 of The Civil Procedure Rules. That she never included in her amended plaint the statement of 24 such reliance is not fatal to the claim. Under the substantive justice doctrine, courts are prohibited from striking out a plaint or dismissing a suit, based on a

 technicality, unless it is clear that there is no set of facts that the plaintiff could prove to establish the claim.

The claim however seeks to challenge a title that was issued in 1935 by a suit originally filed in 2013 and later an amended plaint was filed in 2019. It has been 6 observed that the acts complained of in paragraph 5 (i) – (iv) of the amended plaint are stated to have occurred between 1935 and 1981. It was not pleaded and there was no evidence presented, of when the plaintiff discovered the fraud or the 9 mistakes, or that she could not with reasonable diligence have discovered it. On the other hand, the plaintiff's witness statement dated 8th April 2021 where she stated that she was aged 80 years at the time, in stating that its contents were true and 12 correct to the best of her knowledge, tends to suggest that the plaintiff had knowledge of the acts complained of, but took no action until 2013 when she first filed this suit. There was no evidence that any steps were taken against Evalisto 15 Bajenja after purchasing the land on behalf of Sarah Kibiihire in 1934, and did not show her the sale agreement or the certificate of title. From the evidence of the plaintiff, the defendants had displaced them 80 years back. Maria Ndagano the last 18 daughter of Sarah Kibihire Ikabinga to live on the suit land left the suit land in 1950. In the amended plaint filed in 2019, the plaintiff did not plead to when she discovered the alleged fraud. I thus find that the plaintiff's claim was brought after 21 the expiry of 12 years provided for under section 5 of the Limitation Act and the suit is not saved by the exceptions provided for under section 25 of the Limitation Act. The plaintiff failed to plead and also failed to demonstrate the grounds with 24 evidence, upon which she could claim exemption, failure of which her suit is timebarred, and the court cannot grant the remedy or relief sought and must reject the


claim. The court thus finds that the plaintiff's suit was barred by limitation. This finding alone would dispose of the matter. However, for completeness' sake I will 3 examine the matter further.

## **Issue No. 4: Whether the plaintiff had a cause of action against the** 6 **defendants.**

Cause of action connotes a set of predefined factual [elements](https://www.law.cornell.edu/wex/element#:~:text=An%20element%20is%20an%20essential,defendant%20owed%20to%20the%20plaintiff.) that allow 9 for a [legal](https://www.law.cornell.edu/wex/legal) [remedy.](https://www.law.cornell.edu/wex/remedy#:~:text=remedies%3A%20an%20overview,from%20a%20successful%20civil%20lawsuit.) These are factual elements needed for a specific cause of action either derived form a stature, common law or tort. In *Attorney General Vs Major General David Tinyefuza, Supreme Court Constitutional Petition No. 01 of 2016* 12 the Court cited with approval the following statement from *Mulla's Code of Civil Procedure*: *"A cause of action means every fact which if traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of* 15 *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*

18 *such an act, no cause of action can possibly 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 the institution* 21 *of the suit.*

*defendants. It must include some act done by the defendant since the absence of*

In *Tororo Cement Co. Ltd v Frokina International Ltd, SCCA No. 2 of 2001,* 24 Oder JSC cited with approval the dicta of Spry VP in **Auto Garage & Another Vs. Motokov (No.3) (1971) EA. 514,** thus *"I would summarise the position as I*


*see it by saying that if a plaint shows that the plaintiff enjoyed a right, that the right has been violated and that the defendant is liable, then, in my opinion, a*

- 3 *cause of action has been disclosed and any omission or defect may be put right by amendment".* In ascertaining existence of a cause of action, court must restrict itself to the plaint and the annexure thereof believing that the averments therein are - 6 taken to be true.

The plaintiff did not point at any plausible facts or evidence linking her to the suit

- 9 land or its acquisition. There was no documentary or oral evidence from those who may have been involved in the alleged purchase transaction involving the suit land, in favour of the mother of the plaintiff. The last of the plaintiff's relatives to stay - 12 on the suit land, namely, Maria Ndagano the sister of the plaintiff's mother, left the suit land in 1950, with no facts or evidence of any arrangements that were made to sustain her interest or the family's interest in the suit land, if at all. There were no 15 facts or credible evidence of how the land moved from the plaintiff's grandmother - to her mother or any of her grandmother's children, and to herself, if at all. - 18 Additionally, the plaintiff failed to demonstrate sufficiency of her interest in the suit land to sustain her standing or rights in this matter. The plaintiff brought this claim only on the basis that she was the only surviving child of the late Evasta - 21 Kabajojo. These limited factual [elements](https://www.law.cornell.edu/wex/element#:~:text=An%20element%20is%20an%20essential,defendant%20owed%20to%20the%20plaintiff.) alone could not allow for a [legal](https://www.law.cornell.edu/wex/legal) [remedy](https://www.law.cornell.edu/wex/remedy#:~:text=remedies%3A%20an%20overview,from%20a%20successful%20civil%20lawsuit.) in favour of the plaintiff in a contentious land matter without more. I find that the plaintiff failed to establish a cause of action and her locus standi in this matter.


Again, for completeness' sake I will go ahead, and on the basis of an assumption that the plaintiff's case was not time barred and that she had locus and a cause of 3 action, resolve the remaining issues, to avoid a multiplicity of actions.

**Issues No. 1 and No. 2: Who is the lawful/rightful proprietor of the suit land?;** 6 **and Whether the defendants are trespassers on the suit land.**

The plaintiff has come to lay a claim of ownership over registered land measuring

- 9 643 acres, challenge a title that was issued in 1935. Land ownership claims being highly contentious, require cogent evidence. There must be verifiable authenticity to ensure that such claims are genuine, reducing conflicts. Courts must establish - 12 clear ownership and avoid overlapping claims. The courts have to safeguard individual rights and ensure legitimate owners' interests. - 15 The plaintiff bears the burden to prove the claim on the balance of probabilities. Section 101 of the Evidence Act is to the effect that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts - 18 which he or she asserts must prove that those facts exist. (See: *Kamo Enterprises Ltd Vs. Krytalline Salt Limited, SCCA No. 8 of 2018*). - 21 In this case, it was averred in the amended plaint that Evalisto Bajenja after purchasing the land on behalf of Sarah Kibiihire in 1934, did not show her the sale agreement or the certificate of title. That Sarah Kibiihire lived on the suit land from - 24 1935 to 1949 when she fell sick and died. That Sarah Kibiihire's son Yositasi Rwakaikara lived on the suit land until 1945 when he died. That Sarah Kibiihire's


daughter Evasta Kabajojo the mother of the plaintiff lived on the suit land up to 1938 when she got married and later fell sick and died in 2006. That Sarah 3 Kibiihire's other daughter Mary Ndagano left the suit land in 1950 to go and nurse her sick sister Evasta Kabajojo. That after the death of the 3 daughters of Sarah Kibiihire, the defendants started claiming ownership of the suit land and in a 6 meeting of 9/10/2009, they produced dubious documents to support their ownership and also lodged caveats against the suit land.

9 The plaintiff brought this claim as the only surviving child of the late Evasta Kabajojo. In the plaint, she averred that the suit land originally belonged to her late grandmother, Sarah Kibiihire. That her late grandmother left it to his three 12 daughters, that is, Yositasi Rwakaikara, Evasta Kabojojo (plaintiff's mother) and Maria Ndagano. That all the children of Sarah Kibihire died leaving her as the only surviving child of Evasta Kabajojo and thus she is the sole beneficiary of the land 15 in issue.

The plaintiff failed to demonstrate credible proof that the suit land was bought by 18 her late grandmother through Elasto Bajenja. As already pointed out, there was no documentary or oral evidence from those who may have been involved in the alleged purchase transaction involving the suit land, in favour of the mother of the 21 plaintiff. The last of the plaintiff's relatives to stay on the suit land, namely, Maria Ndagano the sister of the plaintiff's mother, left the suit land in 1950, with no evidence of any arrangements that were made to sustain her interest or the family's 24 interest in the suit land, if at all. There was no credible evidence of how the land moved from her grandmother to her mother or any of her grandmother's children,


and to herself, if at all. The plaintiff did not point at any plausible evidence linking her to the suit land or its acquisition. There was no evidence that any steps were 3 taken against Evalisto Bajenja, or to assert ownership of the suit land, after Evalisto Bajenja allegedly purchasing the land on behalf of Sarah Kibiihire in 1934, and did not show her the sale agreement or the certificate of title.

The plaintiff claimed that her late mother gave 70 cows to Elasto Bajenja to buy her the land. That the land was later bought using 15 cows and the rest remained 9 with Lazaro. There is nothing on record to credibly support the claim that the late Sarah Kibihire had the 70 cows and that she gave the same to Elasto Bajenja or that Elasto Bajenja received any such cows to support the alleged transaction. 12 There is also nothing on record to demonstrably support the claim that the suit land was bought for Saraha Kibihire or to support any claim in favour of Sarah Kibihire from where the plaintiff derives interest. The plaintiff has never possessed, 15 occupied, or used the suit land.

Further, the plaintiff testified that the suit land was bought in 1934 and by the time 18 she recorded her witness statement in 2021, she indicated that she was 80 years. This therefore means that all the events narrated by the plaintiff regarding the acquisition of the suit land happened before she was born. The plaintiff did not 21 place on record evidence of the historical narrations about the suit land. No witness who was present at that time testified or who participated in the purchase of land for her late grandmother. There is no piece of document to prove the said 24 transaction. The only corroborating evidence that the plaintiff presented is that of her son PW2. The testimony of PW2 is clearly hearsay since it is derived from


what he was told and none of those told him appeared in court to confirm such evidence.

The plaintiff failed to lay any legal link between her and the persons who were registered at first as proprietors of the suit land. I find that the plaintiff failed to 6 demonstrate that she had sufficient interest in the suit land. She admitted that for the last 80 years she had never been on the suit land. She also on the merits failed on a balance of probabilities to establish any claim of ownership over the suit land.

- 9 She has no verifiable claim whatsoever on the suit land and thus lacked the locus standi to present the case at hand. The plaintiff's suit was also barred by limitation. - 12 I therefore dismiss the suit. I decline to award costs since the plaintiff is a very old and retired business woman who was even self-represented. I therefore make no award as to costs. It is so ordered.

Vincent Wagona **High Court Judge** 18 **FORTPORTAL**

**DATE: 11/12/2024**