[1991] UGHC 41

## THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 290 OF 1981

M. NAMPIIMA KULUBYA ........................................ .. PLAINTIFF.

V E R S U S

KEZIRONI NTULUME MUKASA ............................................. . DEFENDANT. BEFORE:- The Honourable Mr\* Justice J. V/. N. Tsekooko

## RULING

On 18th February, 19'9J counsel for the defendant Mr. Ntume-Nyanzi raised ^a preliminary point contending that the plaintiff has no cause of action and that the action is vexatious, frivolous and the pleading was embarrassing and bad in lav/ and asked this court to reject the plaint. He then cited authorities in support of his arguments. I shall refer to these shortly. Mr.'Sendege, Learned Counsel for the plaintiff who had initially unsuccessfully applied for adjournment of the hearing of the suit then requested for adjournment to enable him persue authorities cited by Mr. Ntume-Nyanzi before replying to the submissions in support of the preliminary objection. I adjourned the matter to 26th February, 1991 for that purpose. ^A further adjournment was granted on 26th February, 19^1 to 19th March, 1991 on which date yet another adjournment by consent was granted to 9th April, 199'1\* On 9th April, 199\*1 in the presence of the plaintiff, Counsel for the plaintiff with leave of Court withdrew from the case. Court was informed that this withdrawal had been accepted by plaintiff'.\* Then the matter was adjourned to 2nd May, 19'9\*1 with

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a hope that the plaintiff might chose to engage another advocate. She did not attend Court on 2nd May, 1991 • ^here were no reasons available to Court explaining .her absence.

In the circumstances, learned Counsel for defendant prayed that I make a ruling on his submissions.

I shall-first set out•paragraphs of the plaint which appear to have prompted the objection beginning with para J thereof;

nJ. The plaintiff's calim against the defendant is for ^a declaration that the plaintiff is the beneficial owner of lands comprised in Kyaggwe Block 465 Plot ,5 of which the defendant is now the registered proprietor and reliefs incidental thereto.

4. The plaintiff is the daughter of Samwiri Mugambe Kulubya who until the lands hereinabove referred to were fraudulently transferred to the defendant herein was the registered proprietor thereof.

5» Sometime in 1977 the said Samwiri Mugambe Kulubya donated the whole of the land hereinabove referred to as the plaintiff. He duly executed a transfer of the said land to the plaintiff a photocopy whereof is annexed hereto marked ''Annexture ^A". Application for consent to transfer the said land from the said Samwiri Mugambe Kulubya to the plaintiff was duly made to the Commissioner of Lands and Surveys a copy of.which is annexed marked- ''Annexture ^B".

6. At the time the said land was donated to the plaintiff it was subject to an equitable mortgate in favour of M/S Uganda Commercial Bank. Transfer of the said land to the plaintiff was then heldup until the Bank's interest had been discharged" ................../5

Paragraphs ⁷ refers to the Bank's release of Certificate to plaintiff's mother. Pars 8,9 and ¹⁰ concern alleged deligation by the plaintiff to defendant authority to look for prospective purchaser of land and how she surrendered the retrieved certificate to the defendant then it after ^a long time and how defendant advanced to her Shs. 100,000/= The plaint continues:

"11. ''When the plaintiff next checked at the land Registry at Mukono it transpired that the defendant had fraudulently had himself registered as the proprietor of the said land on J1st March, 1980 by lodging a transfer instrument at the said office indicating that he had paid to the plaintiff and her father Shs. 200,000/= as consideration for the sale to him of the siid lands:"

In his written statement of defence the defendant denied fraud maintained that the plaintiff is aware that defendant's acquision of the land was proper. One of defence averments is that if her father had donated and transferred the land to her she should have registered the transfer within reasonable time.

In the.light of the aforesaid pleadings, learned counsel for the defendant contended that the plaint discloses no cause of action, ^hat the plaintiff does not show that she was registered owner under R. T. A. but is merely claiming under the name of the previous registered owner namely Samwiri Mugambe Kulubya who is now dead.

That since the registered owner.was not dead before suit was instituted, he should have been joined as co-plaintiff or

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co-defendant showing she was beneficial owner otherwise she has to show that there was a proper transfer in order to ask court to declare her a beneficial owner and order for cancellation of special certificate now issued to the defendant. Counsel further submitted in effect that plaintiff is now a stranger and cannot complain against the defendant who is transferree.

$L_{\mu}$

That knowledge of an unregistered interest is no ground for a suit against a registered proprietor who got registered before the unregistered interest. That plaintiff could pnly sue for breach of contract - by which I under a breach by the transferor.

He cited the following cases:

- Cullen Vs. Thompson /18797 5 V. L. R. $1.$ - Clerk Vs. Soundhi /19637 EA. 107. $\mathcal{L}$ . - $3.$ Souza Figuredo Vs. Moorings Hotel /19607 EA. 926 to support his submissions on the first point of no cause of action.

When deciding whether the plaint disabses a cause of action or not, it is the generally accepted practice that the court looks at the plaint as it is. In the decision of the Court of Appeal Garage for East Africa in Auto, Vs. Matoro V. (No. 3) /19717 EA. 541, the Court considered and set out the three essential elements to be considered in relation to the question of whether or not the plaint discloses a cause of action.

These are referred to by spry V. P. at page 519 and summarised at page 523 of the report by Mustafa $J. A.$ , as he then was, as follows:-

1. The plaintiff enjoyed a right.

$2.$ The right has been violated.

. . . . . . . . . /5

3. The defendant is liable,

What then is the position of the plaintiff inr"this'"case'?'^~ Has she a right in the suit land.

The plaintiff is claiming the land as beneficial owner. This is based on firstly the transfer form dated 9th January, ¹⁹⁷⁹ whose photocopy (attached to the plaint) purports to have been signed by a donor and donee; her father is the donor and she is the donee. There is also Annexture ^B to the plaint which is ^a photocopy of conGent form showing that on 9th January, 1979 consent was given to the transfer of the land from her father Sarnwiri Hugambe Kulubya to herself (Margaret NamPiima) in persuance of Section 22 (5) (c) (1) of Public Lands Act, and Section 10 of the Land Reform Decree 1975\*

Those appears to be the only steps taken in the process of transfer of registered proprietorship.

The plaintiff claims that by then the land was a subject of equitable mortgage in favour of Uganda Commercial Bank; so the actual transfer could not be affected. However this claim is contradicted by Annexture "Cⁿ to her plaint which is ^a letter dated ⁷th February, 1977 from UCB Branch Manager, Jinja, to UCB City Manager Kampala stating ''please arrange to cancel our interest in the registered mortgage, as the bc-arer has alrei^y cleared his liability with us".

It appears from Annexture ^HCⁿ that the loan was **cleared \*** nearly two years prior.to the signing of the instrument of transfer and the grant of the necessary consent by the competent

authority. So failure to have the plaintiff registered as owner has not on the face of the plaint been correctly stated. .

There is no such thing as beneficial owner recognised by the R. T. A. dimply because a persons has had transfer ^Or consent form signed without more. For Section ⁵¹ of R. T. A. clearly states'-

"No instrument until registered in the manner herein provided shall be effectual to pass any estate or interest in any land under the operation of this Act or to render such land liable to any mortgage ; but upon such registration the estate or interest comprised in the instrument shall pass, or as the case may be, the land shall become liable in manner and subject to the convenants and conditions set forth and specified in the instrument or by this Act declared to be implied in the instruments of a like nature; and if two or more instruments signed by the same proprietor and purporting to affect the same estate or interest are at the same time presented to the Registrar for registration, he shall register and endorse that instrument which is presented by the person producing the duplicate certificate of title".

Thus mere signing of the two forms and the grant of consent gave no legal right in the land to the plaintiff. The interest in the land could only validly pass to the plaintiff if the transfer form had been registered. Also see Section ⁹¹ (2) and Section 9^ of R. T. A.

The cases cited by learne'^d counsel for the defendant (especially Souza Figueiredo Vs. Moorings Hotel /196o7 EA 926) support the contention of defence counsel. ^he effect of this is that as against the defendant she had had no legal right which the defendant. has violated.

As a matter of fact this holding dispos'co of the matter,

^I don't consider it necessary to examine submissions on fraud. This would have been necessary if the father of plaintiff or his executor or Administrator of his estate had sued or been joined as a party to the suit.

Consequently I agree with the submission that the plaint does not disci ose a cause of action, I uphold the preliminary objection and in consequence order that the plaint be reject and it is hereby struck out.

The defen ant shall have the costs.

j, , J. VLN.'TSEKOOKO JUDGE 24/5/1991.

2^/5/1991 at 9.o'l- a.in.

Plaintiff absent.

^D e fendant present.

Mr, Ntume-Nyansi for defendant present.

Gulernye interpreter.

j.'j. N.''tsekooko

JUDGE 2^/5/1991.