THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO 95 OF 2017
- NAKANWAGI JANE
- BUKENYA EDWARD::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS
BEFORE: HON. MR. JUSTICE HENRY I. KAWESA
The Plaintiffs brought this suit against the Defendant claiming for;
- Recovery of family land comprised in Busiro Block 333 Plot 825 at Kyengera (hereinafter the suit land).
- Recovery of the land title for the suit land.
- Declaratory orders that the Defendant’s actions of claiming ownership of the suit land are mischievous, dishonest and fraudulent.
- Declaratory orders that the suit land does not form part of the estate of the late Alozio Matovu Muwonge.
- General damages, and costs of the suit.
The facts pleaded by the Plaintiff are that their grandfather, the late Muwonge Michael was survived by seven children who inter alia included Matovu Alozio Muwonge. That at the time of his death, the deceased left a kibanja part of which is that suit land. That the whole kibanja was held as family land and was put in the management of the late Matovu Alozio Muwonge the heir of their grandfather the late Muwonge Michael. That the late Matovu Alozio Muwonge then proposed to buy the legal interest from the landlord which proposal was accepted by all the beneficiaries and hence the kibanja land was registered in his name.
Upon his registration, the late Matovu Alozio Muwonge caused the subdivision of the whole land to several beneficiaries. That the suit land was the residue of that land for ancestral burial grounds to be jointly owned by the whole family. That despite the suit land being registered in the names of the late Matovu Alozio Muwonge, as a heir to the late Muwonge Michael, it remained family land and not personal property of the latter. That upon the death of Matovu Alozio Muwonge, the Defendant and another applied and were granted letters of administration of his estate and became registered on the suit land as administrators of the estate of the late Matovu Alozio Muwonge.
Upon their registration, the Defendant started asserting that the suit land belongs to the estate of the late Matovu Alozio Muwonge. That the Plaintiffs then discovered attempts to sale the suit land by the Defendant. Because of this, that the Defendant cannot be entrusted with the management of the family land, suit land, which has ancestral grounds and that it should be returned and registered in the names of persons nominated by the family.
In his written statement of defence, the Defendant raised a preliminary objection that the Plaintiff’s cause of action is statute barred, and frivolous and vexatious. At the first appearance, Counsel for the Defendant raised this objection whereupon Court allowed both parties to file written submission on the point. Accordingly, both parties filed submissions in compliance. These I shall consider accordingly.
I have looked at the copy of the suit land title attached to the written statement of defence. This confirms the Plaintiff’s allegations in the plaint. It also indicates that the late Matovu Alozio Muwonge (hereinafter the deceased) became registered on the suit land in 1996. This fact was not disputed by both parties.
According to the submissions of Counsel for the Defendant, the suit is time barred on ground that the period between 1996 when the deceased became registered on the suit land and 2017 when the suit was filed more than 12 years had passed.
He accordingly submitted that the Plaintiffs could not maintain a suit for recovery of the suit land after the lapse of the limitation period. He supported his argument with Section 5 of the Limitation Act Cap 80, the case of Nabisere Geradine Mirundi versus Harry Fred Mutebi Sseruga HCCS No.565 of 2012, Muhammad Kasasa versus Jaspher Buyonga Sirasi Bwogi CACA No.42 of 2008.
All these authorities are to the effect that suits for recovery of land must be commenced within 12 years.
In response, Counsel for the Plaintiffs submitted that the suit is not statute barred. His reason was that the cause of action arose in 2011 when the Defendant’s father, who was managing the suit land in trust for the beneficiaries, died and the Defendant became registered thereon in 2014. Counsel also raised several other queries relating to the Defendant’s installation as heir and administrator but these I shall not consider because they are not relevant to the point under investigation.
He also argued that Section 5 of the Limitation Act Cap 80 does not apply in the circumstances because the Plaintiffs are not challenging the registration of the late deceased on the title but the Defendant’s registration on trust property.
He then cited Section 19(2) of the Limitation Act which relates to trust property to argue that the Plaintiffs filed their suit within the 6 years limitation period envisaged by the Section. It was his argument that from the 25th of July 2011 when the deceased died up to the 16th day of June, 2017 when the suit was filed, it was roughly 5 years and 11 months well within the 6 years limitation period envisaged under Section 19(2) of the Limitation Act. He accordingly invited me to dismiss the Defendant’s objection with costs.
In rejoinder, Counsel for the Defendant disputed that the Plaintiff’s cause of action arose in 2011 when the deceased died. He maintained that the Plaintiffs’ cause of action arose in 1996 when the deceased, through whom the Defendant claims as administrator, became registered on the suit land. It was therefore his submission that since the Plaintiffs did not challenge the deceased’s registration, they cannot not claim the suit land after his death.
Having had the benefit of appreciating the submissions of both Counsel and the law, I now decide as follows.
A carefully scrutiny of the plaint clearly reveals that the Plaintiffs claim the suit land not in their personal capacity but as beneficiaries. It clearly appears from the plaint that the suit land is claimed as trust property of the family of the late Muwonge Michael. This in fact appears also from paragraphs 8, 9 and 10 of the Defendant’s written statement of defence who admits that part of the suit land, having ancestral grounds is held by him in trust for the family.
Whether or not the suit land is indeed trust property as claimed by the Plaintiffs, cannot be determined at this point except at the trial. Considering this argument, I am of the considered view that Section 5 of the Limitation Act is inapplicable for the reason that it only applies when one claims recovery of immovable property as of right the personal or representative capacity.
In that regard, I agree with Counsel for the Plaintiff that Section 19(2) of the Limitation Act is the applicable law in the circumstances. According to that Section, an action by a beneficiary to recover trust property, not being an action for which a period of limitation is prescribed under the Act, must be brought within six years from the date on which the right of action accrued. The Plaintiffs clearly pleaded that they had no problem with the registration of the deceased on ground and that they entrusted him with the suit land for their benefit.
They further pleaded that their dispute only arose when the Defendant and another, became registered on the suit land and started asserting that it belonged to the estate of the deceased. The Defendant’s registration, according to the certificate of title occurred on the 24th November, 2014.
Taking all the circumstances in account; it is my considered opinion, this was when the Plaintiffs’ cause of action arose because this suit was filed in 2017, it cannot be said that it is time barred. I thus depart from both Counsel’s submissions as regards the time when the Plaintiffs’ cause of action arose.
In the circumstances, I am constrained to dismiss the Defendant’s preliminary objection with costs to the Plaintiffs.
Henry I. Kawesa
Nkanda Christopher for the Respondent.1st Respondent present.
Applicants represented by Ms. Judith Tumusiime.
Ruling delivered to the parties above.
Henry I. Kawesa