[2024] UGHC 590

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL SUIT NO. 0097 OF 2022**

**TAREMWA SEZI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF/COUNTER DEFENDANT**

#### **VERSUS**

10 **RWAMANI COSTA BAINOMUGASHO:::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT/COUNTER CLAIMANT**

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

#### **RULING**

This ruling is premised on a preliminary objection raised by counsel for the plaintiff regarding the locus standi of the counterclaimant, Rwamini Costa Bainomugasho, in instituting the counterclaim.

The background to the above-raised preliminary objection is that the Plaintiff / Counter 20 defendant, one Taremwa Sezi, instituted a suit against the Defendant / Counter claimant for a declaration that the defendant and her agents are trespassing on the Plaintiff's land situated at Kamusenene Village Kiryandongo district described as Ranch 31B (hereinafter referred to as the suit land); an order of vacant possession; a permanent injunction; general damages and costs of the suit.

It is the plaintiff's/counter-defendant's case that he owns the suit land and that the defendant/counter-claimant has been trespassing on the same by using it for rearing her cattle and also hiring it out to several other persons. The defendant/counter-claimant has been requested to desist from her unlawful conduct, but she refused. That the defendant's/counter claimant's conduct has caused the plaintiff/counter defendant a lot of 30 inconvenience and embarrassment and affected his farming activities on the same.

On the other hand, the defendant/counter-claimant denied the claims, stating that the plaintiff/counter-defendant is not entitled to any of the remedies sought because he is not the owner of the suit land measuring 100 acres, having sold the same to the

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defendant's/counter claimant's husband, the late Wilson Rwamini. The transaction was executed in writing as per the sale agreement dated 23rd June 2001, signed by five witnesses, including the LC I chairperson. The defendant/counterclaimant instead lodged a counterclaim against the plaintiff for a declaration that the suit land belongs to the estate of the defendant's husband, the late Wilson Rwamini, general damages for trespass, permanent injunction, and costs of the counterclaim. According to the defendant/counter claimant, upon sale of the suit land to the late Wilson Rwamini, they took possession of the same in 2001 to date.

The defendant/counter-claimant further stated that despite selling the suit land, the 10 plaintiff/counter-defendant is making false and unlawful claims of its ownership. By those false claims, the plaintiff /counter-defendant continuously intimidates and threatens the defendant/counter-claimant, who has denied her quiet possession of the suit land. That the plaintiff/counter-defendant trespassed on the suit land on the 2nd November 2018 by bringing his cows unto the suit land without the permission of the defendant/counterclaimant, for which the matter was reported to the chairman LCI of the village and other authorities as per a letter dated 5 th May 2021 marked Annexture "D." That the defendant/counter claimant has the duty as a widow and beneficiary to the estate of the late Wilson Rwamini to protect the suit land which is part of this estate. It was on such premise that the plaintiff/counter-defendant raised the preliminary objection.

### 20 *Representation*

Counsel David Innocent Nyote of M/s Nyote & Co. Advocates represented the plaintiff/counter-defendant. Counsel Bayo William of M/s Manzi & Co. Advocates represented the defendant/counter-claimant.

### *Plaintiff / Counter-Defendant's Submission*

Counsel submitted that the order that a declaration that the suit land belongs to the estate of the late Wilson Rwamini and the counter-claimant is entitled to its possession, sought for by the defendant/counter-claimant, cannot be granted for purposes that she has no locus to sue the plaintiff/counter defendant. Counsel added that the defendant/counter claimant has no Letters of Administration to the estate of her late husband and has not shown in her counterclaim that she is suing in a capacity as a beneficiary. Counsel prayed that the counterclaim be dismissed on that basis with costs.

### *Defendant's/Counter Claimant's submission in reply*

In his response, counsel submitted that the defendant/counter-claimant filed the counterclaim against the plaintiff /counter-defendant as a widow of her late husband and beneficiary of his estate, as stated in paragraph 6 of the counterclaim. Counsel submitted that as a beneficiary of her late husband's estate, the defendant /counter-claimant is entitled to file a counterclaim against the plaintiff without first obtaining Letters of 10 Administration to protect the estate.

Counsel relied on the case of *Israel Kabwa Vs. Martin Banoba Musiga, SC Civil Appeal No. 052 of 1995,* where the Supreme Court held that a beneficiary of an estate could maintain a suit against a trespasser to protect his or her interest in the estate without Letters of Administration. Counsel added that in that appeal, the Supreme Court was considering a similar issue as the one raised by counsel for the plaintiff/counter-defendant in the preliminary objection. Counsel stated that the above case is on all fours with the case before this court because, just like in the cited case, the defendant/counter-claimant has started the process of getting the Letters of Administration.

In conclusion, counsel submitted that the preliminary objection raised by counsel for the 20 plaintiff / counter-defendant lacks merit since the defendant/counter-claimant, as a widow of the late Wilson Rwamini and a beneficiary to his estate, has the locus standi to have filed the counterclaim even without letters of administration to protect the suit land from the plaintiff/counter defendant's trespass. Counsel prayed that the preliminary objection be overruled with costs.

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## *Court determination*

It is trite law under Order 6 Rule 28 of the Civil Procedure Rules that points of law may be raised by the parties to a suit and disposed of by the court either at or after the hearing as hereunder.

## *"28. Points of law may be raised by pleading.*

*Any party shall be entitled to raise any point of law by his or her pleading. Any point so raised shall be disposed of by the court at or after the hearing, except that by consent of the parties or by order of the court on the application of either party, a point of law may be set down for hearing and disposed of at any time before the hearing."*

10 The point of law raised by counsel for the plaintiff / counter-defendant questions the locus standi of the defendant/counter-claimant about lodging a counterclaim without letters of administration. Locus standi is well defined by the Black's Law Dictionary to mean, *"The right to bring an action or to be heard in a given forum."* Whereas the plaintiff's/counterdefendant claims that the defendant/counter-claimant has no right to lodge the counterclaim since she has no letters of administration, neither did she indicate in what capacity she is lodging the counterclaim, the defendant/counterclaimant denies the same, indicating that as a widow and beneficiary to the estate of her late husband Wilson Rwamini, she has a right to lodge the said counterclaim.

In the circumstances, this court is faced with these questions.

- 20 1. Whether the defendant has a right to lodge the counterclaim. - 2. Whether a counter-claimant has to indicate the capacity under which he or she is lodging a counterclaim.

The law relating to counterclaims is laid out under Order 8 Rule 2 of the Civil Procedure Rules, which states thus.

*"2. Setoff and counterclaim.*


*(1) A defendant in an action may set off, or set up by way of counterclaim against the claims of the plaintiff, any right or claim, whether the setoff or counterclaim sounds in damages or not, and the setoff or counterclaim shall have the same effect as a cross-action, to enable the court to pronounce a final judgment in the same action, both on the original and on the cross-claim. But the court may, on the application of the plaintiff before trial, if in the opinion of the court, the setoff or counterclaim cannot be conveniently disposed of in the pending action or ought not to be allowed, refuse permission to the defendant to avail himself or herself of it."*

*(2) Where a defendant includes a counterclaim in the defense, the defendant shall* 10 *accompany it with a summary of evidence to be adduced, a list of witnesses, a list of documents, and a list of authorities to be relied on."*

First and foremost, by the above provision, the defendant/counter-claimant has a right to bring a counterclaim against the plaintiff by being a defendant in the suit. Secondly, perusing the written statement of defense and counterclaim indicates that the suit land was purchased by the late Wilson Rwamini, who was the husband of the current defendant/counterclaimant, as per paragraph 2 of the counterclaim. This indicates that by being a widow to the late Wilson Rwamini, the defendant/counterclaimant is a beneficiary to the estate of the late Wilson Rwamini.

In the case of *Israel Kabwa Vs. Martin Banoba Mugisa, Supreme Court Civil Appeal No.*

20 *052 of 1995*, where one of the grounds of appeal was that the trial judge erred in law and fact when he held that the respondent had sufficient locus standi to bring and maintain the suit against the appellant. In their finding on the ground, it was held that *"Therefore, I think that ground one should fail. I would still fail in my view even if no letters of administration had been obtained because the respondent's right to the land and his developments thereon do not depend on the letter of administration."* This means that being a widow/beneficiary in the current case, whether with or without letters of administration, the defendant/counterclaimant had the right to lodge the counterclaim since she intended to protect the property of the estate of the late Wilson Rwamini.

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In addition to the above, the counterclaim being a pleading on its own, the law on general pleadings under Order 4 Rule 1 of the Civil Procedure Rules should be considered, which states that.

# *"1. Pleading to state material facts.*

*(1) Every pleading shall contain a brief statement of the material facts on which the party pleading relies for a claim or defense, as the case may be.*

*(2) The pleadings shall, when necessary, be divided into paragraphs, numbered consecutively; and dates, sums, and numbers shall be expressed in figures."*

Counsel for the plaintiff/counter-defendant raised another issue: the defendant/counter-10 claimant had not indicated in what capacity she was lodging the counterclaim. Under the above provision and perusal of the counterclaim, I believe that the claim of the plaintiff's/counter-defendant's counsel cannot stand because the said omission does not affect the root cause of this suit.

Secondly, paragraph 6 of the counterclaim states that.

*"The defendant, as a widow and beneficiary of the estate of the late Wilson Rwamini, has the duty and right to protect the suit land, which is part of the estate."*

Given the above findings, the plaintiff/counter-defendant's preliminary objection cannot prevail. The objection is overruled. with no orders as to costs.

**I so rule.**

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

**……………………. Isah Serunkuma**

**JUDGE**