[2022] UGHCLD 129

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### [LAND DIVISION]

#### HCCS. NO. 0647 OF 2020

# [Formerly HCCS NO. 143 OF 2011 IN NAKAWA CIRCUIT]

#### KATEREGGA SOLOMON

**PLAINTIFF**

$\mathsf{V}$

1. MUYINGO MARTIN

2. MUBIRU CHARLES

3. ALICE NALWOGA

**DEFENDANTS**

### BEFORE: HON. LADY JUSTICE P. BASAZA - WASSWA

## RULING

(ON A PRELIMINARY OBJECTION)

Representation:

Mr. Sekidde Hamza for the Plaintiff.

Mr. Buwule Francis for the Defendants.

#### Introduction:

On September 9, 2011 the Plaintiff; Mr. Kateregga brought this suit against the $[1]$ Defendants; Mr. Muyingo, Mr. Mubiru and Ms. Nalwoga, for alleged fraud and trespass.

MasamWamm 12/7.

$\mathbf{1}$

- $[2]$ In his plaint he seeks, *inter alia* for; - $i)$ A declaration that he is the lawful and rightful owner of the land comprised in Kyadondo Block 208 Plot 1743 at Kawempe. (Hereinafter referred to as 'the suit land'). - ii) A declaration that the transfer and registration, on the certificate of title of the suit land, from his names into the names of a one Zipola Namakula, was fraudulent. - An Order for cancellation of the registration of the name of Zipola iii) Namakula and or the Defendants claiming title under her. - A permanent injunction against the Defendants, and orders for vacant iv) possession, demolition of structures, general Damages, interest and costs of the suit against them. - $[3]$ He contends; - $i)$ That he was the registered proprietor of the suit land, and that in March 1998 Zipola Namakula fraudulently and unlawfully, without his knowledge or consent, obtained registration of the suit land into her name. - That Zipola Namakula, from whom the Defendants claim, forged his ii) signature to transfer the suit land into her names.

Macamel umm 12/7.

$\overline{2}$

- iii) That the acts of Zipola Namakula, who has since died, and subsequently the Defendants, her children, using a fraudulent claim and transfer to enter the suit land, amount to trespass. - In answer, the Defendants; Mr. Muyingo, Mr. Mubiru and Ms. Nalwoga jointly $[4]$ contend; - That they are not the registered proprietors of the suit land, and that $i)$ neither are they the Administrators of the Estate of the late Zipola Namakula, nor have they had any dealings with the said certificate of title. - That the transfer of the suit land from Mr. Kateregga's name into Zipola ii) Namakula was lawful and the allegations of fraud are denied. - That the RC III judgment attached to the plaint is irregular and defective iii) for lack of jurisdiction over registered land and making a decision without hearing an appeal. - $iv)$ That they are not trespassers. - That they are entitled to the suit land under intestate Succession. $v)$ - That without any colour of right, Mr. Katerregga lodged a caveat on the vi) suit land and as a result, they have suffered loss and damage.

Macambumm 12/7.

$\overline{3}$

- $[5]$ Mr. Muyingo, Mr. Mubiru and Ms. Nalwoga raised a counterclaim by which they seek for an order that Mr. Kateregga's caveat on the suit land be removed. They also seek for costs of the suit. - $[6]$ Before the commencement of hearing this suit, Counsel for each party filed their respective written submissions on a preliminary objection, and hence this Ruling.

#### Submissions of Counsel:

$[7]$ Mr Buwule argued for the Defendants that the plaint does not disclose a cause of action against his clients and is, as such, defective.

Citing Order 6 Rule 29, Order 7 Rule 11 (a) and Order 31 Rule 1 of the CPR, and sec. 180 of the Succession Act, Counsel argued that Mr. Kateregga is trying to enforce rights that were not and could not in any way have been That the Defendants are only children and violated by the Defendants. beneficiaries to the estate of the late Zipola Namakula, and are not Administrators of her estate. That they therefore cannot be held liable for her acts and omissions allegedly committed against him.

Learned Counsel further argued that this suit falls under the exceptions to sec. 5 of the CPA, to wit; that it falls under suits that are expressly or impliedly barred by law.

For his said propositions, learned Counsel relied; *inter alia,* on; $[8]$

MasamWummiz/7.

$\overline{4}$

#### $1.$ Tororo Cement Co. Ltd v. Frokina International Ltd¹

#### $2.$ Auto Garage v. Motokov²

- [9] In his submissions in answer, Mr. Ssekidde argued for the Plaintiff that the preliminary point of law raised, together with the authorities cited, are misplaced. That the same lack merit and should be overruled with costs to the Plaintiff. - $[10]$ He argued further that Zipola Namakula fraudulently acquired the suit land from his client, and that in April 2011, after Zipola Namakula's death, she left the Defendants and her family on the disputed land and as such a cause of action accrues to the Plaintiff, against the Defendants, in trespass. That trespass being a continuing tort, it continues for as long as the Defendants are still in possession of the suit land, and is not time barred. - For his said propositions, learned Counsel cited; $[11]$ - 1. Justine Lutaaya v Stirling Engineering Co. Ltd³ - $2.$ Hwan Sung Ltd v M & D Timber Merchants & Transporters Ltd⁴ - 3. Gertrude Namakula v Robinah Nasejje⁵ - By way of rejoinder, Mr. Buwule for the Defendants argued that the Plaintiff's $[12]$ grievance in the plaint is against the actions of the late Zipola Namakula, yet he

MaramWann 12/7.

^&lt;sup>1</sup> SCCA No. 2/2001

^&lt;sup>2</sup> (No. 3) [1971] E. A at page 514

^&lt;sup>3</sup> SCCA No. 11 of 2002

^&lt;sup>4</sup> SCCA No. 2 of 2018

^&lt;sup>5</sup> HCCS No. 2142 of 2016

brings them against the Defendants because they are her children and as such there is no cause of action against them.

$[13]$ Learned Counsel rejoined further that on the allegations of trespass, the tort of trespass is against possession, yet nowhere in the plaint does the Plaintiff allege that he has possession of the suit land, nor that he has title.

#### Analysis:

- The question that arises for my determination is; whether the Plaint discloses a $[14]$ cause of action against the Defendants? - Before I determine that question, I shall first restate the concept of 'a cause of $[15]$ action';

**'A cause of action'** means a fact or a combination of facts which give rise to a right of action.

#### See Halsbury's Laws of England⁶,

'A cause of action' is also defined in **Black's Law Dictionary**⁷ as;

'A group of operative facts giving rise to one or more bases for suing; a factual situation that entitles one person to obtain remedy in court from another person'.

(Underlining added).

# Order 6 rule 1 (1) and Order 7 rule 1 (e) of the Civil Procedure Rules are to the $[16]$ effect that a plaint shall contain a brief statement of the material facts constituting the cause of action and when it arose.

Macammum 12/7.

$6$ 4^th ed. Vol. 37 at page 24

$7$ 9^th ed. at page 251

- $[17]$ In the celebrated case of **Auto garage vs. Motokov (supra)** it was held that to prove that a plaint discloses a cause of action, the plaint must show three $(3)$ elements; - $i)$ That the Plaintiff had a right - $ii)$ That the Right was violated by the Defendant - iii) That the Defendant is liable. - It is trite that where a plaint does not disclose a cause of action, it shall be $[18]$ rejected and that in determining whether a plaint discloses a cause of action, the court must look only at the Plaint and its annextures, if any, and nowhere else.

#### See (Order 7 rule 11 (a) of the CPR and Kapeka Coffee Works Ltd vs. NPART⁸

- I have looked at the Plaint and its annextures, and I agree with Mr. Buwule that $[19]$ the alleged acts complained about by Mr. Kateregga are not alleged acts of the Defendants, but the alleged acts of the late Zipola Namakula. (Refer to paragraphs 4 - 6 of his plaint which contains the gist of Mr. Kateregga's complaint). - $[20]$ To wit; Mr. Kateregga complains that the late Zipola Namakula allegedly forged his signature in 1998, and that she allegedly obtained a transfer and registration of the suit land title into her names with intent to defeat his interests in the same.

Masa m. Wumm 12/7.

^&lt;sup>8</sup> COA CA No. 3 of 2000

He complains also that using that alleged fraudulent claim, the Defendants trespassed unto the suit land.

$[21]$ In the result, I find that indeed the arguments by Mr Buwule **'that the Defendants** who are children of the late Zipola Namakula cannot be held liable for the alleged acts and or omissions of their deceased mother', are correct arguments.

A proper suit would be one against the legal representative of the deceased under sections 180 and 264 of the Succession Act Cap 162 as Amended⁹ and not against members of the family of the deceased, sheerly by virtue of being so. As such, a cause of action has not been disclosed in the plaint.

- $[22]$ Under Sections 180 & 264 of the Act, an Executor or administrator of a deceased person is his or her legal representative and all the property of the deceased person vests in him or her as such, and after any grant of probate or letters of administration, no person other than the person to whom the same has been granted shall have power to sue or prosecute any suit, or otherwise act as representative of the deceased until such probate or letters of administration have been recalled or revoked. - Be that as it may, it must also be pointed out that; 'even if the plaint disclosed $[23]$ a cause of action, which is not the case, still Mr. Kateregga's suit is not **maintainable in law'.** In his plaint, Mr. Kateregga complains about acts he Machine um 12/7

^&lt;sup>9</sup> The Succession Act as Amended by The Succession Amendment Act, 2022

allegedly learnt about in September 1998 (see paragraph 4 (e) of the plaint), and seeks to have the same remedied by a suit he filed in September 2011. thirteen (13) years after the said allegations were allegedly committed!

$[24]$ It is trite law that no action can be brought by any person to recover any land after the expiration of twelve (12) years from the date on which the right of action accrued to him or her. (See section 5 of the Limitation Act¹⁰).

The Plaintiff's action founded on alleged fraud, brought 13 years after the allegations complained about thus collapses for being barred by time limitation.

- $[25]$ Equally, the Plaintiff's action in alleged trespass collapses. Under **section 3 of the Limitation Act,** actions in tort brought after the expiration of six (6) years are barred by effluxion of time. - [26] A suit barred by statutory limitation cannot stand nor can it be rescued. Court has no inherent jurisdiction to enlarge time laid down by statute. See **Makula** International v His Eminence cardinal Nsubuga¹¹.

Decision of this court:

[27] For the reasons given;

Magunt un $12/7$ .

^&lt;sup>10</sup> Cap. 80 of the Laws of Uganda.

^&lt;sup>11</sup> [1982] HCB 24

- $i)$ The preliminary objection raised by Mr Buwule for the Defendants, is upheld. The Plaint does not disclose a cause of action against the Defendants. - $ii)$ This suit is barred by limitation of time and cannot stand. - $[28]$ In the result; - 1. The Plaint in this suit is rejected under Order 7 Rule 11 (a) & (d) of the CPR. - $2.$ This suit is dismissed with costs to the Defendants. - 3. The Caveat lodged by the Plaintiff on the suit land title; (land described as Kyadondo Block 208 Plot 1743 at Kawempe) is consequently, hereby vacated.

I so order,

Masamhamm 12/7.

P. BASAZA - WASSWA **JUDGE**

July 12, 2022

Judgment delivered to the parties and their Counsel by email and uploaded on the ECCMIS system.