[2024] UGHC 987

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT ARUA

# CIVIL SUIT NO.030 OF 2013

# 1. SAIDI MBUKI IMBAGA: ...................................

#### **VERSUS**

#### 1. THE SCHOOL MANAGEMENT COMMITTEE OF ARINGA 10

# ISLAMIC COMMUNITY PRIMARY SCHOOL

- 2. YUMBE DISTRICT LOCAL GOVERNMENT - 3. ATTORNEY GENERAL: .................................... - 15

$\mathsf{S}$

# RULING ON PRELIMINARY OBJECTION

## BEFORE HON. JUSTICE COLLINS ACELLAM

# **Brief Introduction**

On the 24^th May, 2023 when this matter came up for hearing, the defendants intimated that they had a P. O to raise, this court then gave directives to the defendants to file written submissions

20 on the Point of Law for consideration.

> The defendants then filed their submissions in respect of the same, a Reply to the P. O was made by the Plaintiff then the defendants made a Rejoinder in respect to the reply.

#### The Preliminary Objection

## **Submission of the Defendants**

The defendants in their submission contend that the plaintiff's suit with regards to the cause of $25$ action of the Alleged conversion by the defendants of the plaintiff's alleged school is time barred and this honourable court and court should be pleased to reject the same with costs to the defendants.

Counsel adds that in paragraph 3 of the plaint, is 'is......for recovery of his land and developments on which the defendants are operating a school'.

Further, counsel quotes paragraph 4(b) of the Plaint, 'without the plaintiff's permission, the employees /agents of the defendants trespassed into his land, unlawfully took over his school, to wit, he built four classrooms blocks, bought over 1000 textbooks still bearing the stamp

$\mathbf{1}$

$-\Lambda\Lambda$

5 of Aringa Muslim Primary School, bought furniture.................................... which were taken over by the defendants and the defendants are utilizing them to the plaintiff's detriment.'

Counsel contends that the plaintiff's allegation points to the tort of conversion which according to online dictionary is an intentional tort consisting of taking with the intent of exercising

control over the chattel an ownership inconsistent with the real owner's right of possession. That 10 the plaintiff's cause of action for the conversion of his alleged school, textbooks etc arose in 2004 when the school was taken over by the defendants as alleged by the plaintiff.

Counsel submits that the plaintiff ought to have filed this suit within six years from the said time at least by 27^th November 2010 which action the plaintiff neglected to do so despite his clear

knowledge that the school had been taken over as he alleges. That as far as the tort of conversion 15 is concerned is time barred and this honourable court should be pleased accordingly to reject the plaint with costs to the defendants.

## Submission in reply to the P. O by the Plaintiff

In reply to the Defendants, Counsel for the plaintiff contends that the plaintiff's cause of action 20 is for recovery of land as clearly stated in his amended plaint and not for conversion as Counsel for the defendants contends as it can be seen in paragraph 3 of the amended plaint in which it is pleaded that the suit us for 'recovery of his land and developments on which the 1^st defendant is operating a school, mesne profits, general damages for trespass and special damages'.

In paragraph 4 (a) of the plaintiffs amended plaint, the plaintiff contends that he is the owner of the suit land where he constructed and privately operated a school known as Aringa Muslim 25 Primary School. That the plaintiff's action is for recovery of land not in tort of conversion as argued by Counsel for defendants as the tort of Conversion relates to chattels which are moveable properties and does not relate to real property /land which is immovable property.

That regarding actions for recovery of land, the limitation period for filling a suit is 12 years as provided in section 5 of the limitation Act and the computation of the limitation period starts 30 from the time the claimant's right of action accrue. That the plaintiff through a letter dated 27^th /11/2004 protested the Trespass to land and takeover of the plaintiff's school as evidenced by Annexture 'D.1' to the amended Plaint. The plaintiff further wrote a follow up letter on 29^th /8/2011 marked 'D.2' all these letters were rudely ignored thus the plaintiff filed a suit on $31/10/2013$ . 35

$\overline{2}$

$\Rightarrow$

Counsel concludes that the plaintiff was within the statutory time of 12 years provided by section $\mathsf{S}$ 5 of the Limitation Act to institute an action for recovery of land.

### Submission in Rejoinder

In rejoinder to the Reply, Counsel for the defendants submit that the cause of action is n conversion of the plaintiff's land, alleged developments thereon, alleged school, furniture etcetera. That at no time did this honourable Court allow the plaintiff to amend his pleadings and any alleged amendments in regards to the cause of action would be inconsequential. That the alleged 'take over' and change of name both constitute conversion as the same was allegedly procured without the plaintiff's consent and the defendants have been operating the school.

#### **Resolution**

#### What is the law on Conversion 15

The tort of conversion is committed by an unlawful interference with the plaintiff's title in the goods. It is committed when the defendant has dealt with the chattel in a manner which is so seriously inconsistent with the plaintiff's right to possession of the chattel that it amounts to a denial of that right. Conversion is a single wrongful act, and the cause of action accrues at the date of conversion. The plaintiff must show a right to immediate possession and that the

defendant's act was a denial. Sections 4 (1) of the Limitation Act provides that where any cause of action in respect of the conversion or wrongful detention of a chattel has accrued to any person and, before he or she

recovers possession of the chattel, a further conversion or wrongful detention takes place, no action shall be brought in respect of the further conversion or detention after the expiration of $25$ six years from the accrual of the cause of action in respect of the original conversion or detention. See Wickham Holdings Ltd v Brooke House Motors Ltd [1967]1 All ER 117

Subsection 2 of the same Act envisages that where any such cause of action has accrued to any person and the period prescribed for bringing an action on it and for bringing any action in

respect of such a further conversion or wrongful detention as aforesaid has expired and he or 30 she has not during that period recovered possession of the chattel, the title of that person to the chattel shall be extinguished.

## What is a chattel.

$\overline{3}$

The Black's law dictionary, 9^th Edition at page 268 defines a Chattel as movable or transferable $\mathsf{S}$ property, personal property especially physical object capable of manual delivery and not the subject matter of real property.

Accordingly, in light of the facts, paragraph 3 of the Plaintiff's amended Plaint clearly states that the plaintiff's claim against the defendants jointly and severally is for recovery of his land and

developments on which the 1^st defendant is operating the school, mesne profits with interest at 10 the rate of 25% from the date of take over until payments in full.......

Paragraph 4 contains facts constituting the cause of Action. 4(b) states the facts as without the plaintiff's permission, the employees and or agents of the defendants trespassed onto his land, unlawfully took over his school and have unlawfully changed its name.......

- In my own understanding, the catch word here is recovery of land and the 'take over' is merely 15 the act that is constitutive of an occurrence or a narrative of events that led to the accrual of the cause of action. We all know that under the rules of construction, words ought not be read in isolation of others, with due respect to Counsel for the defendants, capitalising on the word 'Take over' to constitute a tort of conversion is untenable as under tort of conversion as defined 20 above relates to personal or transferable property. This pursuant to the above reasons cannot - therefore be a tort in Conversion as per the definition of Conversion.

A close scrutiny of Paragraph 3 of the amended plaint clearly states the claim against the defendants for recovery of his land and developments. The nature of rights the Plaintiff seeks to enforce in the suit were of a recovery nature, hence this was for all intents and purposes an action

for recovery of land, of which he contended they had been unlawfully deprived by the 25 Defendants.

Section 5 of the Limitation 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.

- This limitation is applicable to all suits in which the claim is for possession /recovery of land, 30 based on title or ownership i.e., proprietary title, as distinct from possessory rights. The computation of the limitation period starts from the time the claimant's right of action accrued. In the instant case, the plaintiff through a letter dated $27/11/2004$ protested the Trespass to land and takeover of the Plaintiff's school as evidenced by Annexture 'D.1' to the Amended - Plaint. Further, another letter was written to follow up on the 29/8/2011 marked 'D.2' which 35 were all ignored. Aggrieved, the plaintiff decides to file this suit on 31^st/10/2013. This means

$\Delta$ $\Lambda$

- that the cause of action accrued on the 27^th /11/2004 when the Defendants took over the $\mathsf{S}$ management of the school, if computed, from the time the plaintiff filed this suit, this is 9 years from the time of accrual of action, we cannot also say the plaintiff sat on his right as in 2011, he wrote another letter following up the complained earlier on lodged in 2004. This is therefore within the statutory period thus not time barred. - Pursuant to the foregoing, I overrule the Preliminary Objection with Costs being the Cause. $10$

I so Rule. I so Rule.<br>Delivered at Arua this.................................... $\ldots 2024$

**CELLAM** COLLIT 15 JUDGE