Court name
High Court of Uganda
Case number
High Court Civil Suit 205 of 2014
Judgment date
22 August 2019

Mujabi v Mukalazi and 2Others (High Court Civil Suit 205 of 2014) [2019] UGHC 274 (22 August 2019);

Cite this case
[2019] UGHC 274
Coram
Murangira, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT MUBENDE

HIGH COURT CIVIL SUIT NO. 205 OF 2014

 

KILIZESTOMU MUJABI=============================PLAINTIFF

 

VERSUS

  1. J.H. MUKALAZI KIWUTTA
  2. SUUNA JOSEPH (ADMINISTRATOR

OF BESWERI MULONDO)                              =================DEFENDANTS

  1. COMMISSIONER LAND REGISTRATION   

 

RULING BY: HON. JUSTICE DR.  JOSEPH MURANGIRA

Introduction.

Representation

The plaintiff Kilizestomu Mujabi, is represented by Mr. Kaggwa David from Kaggwa, Owoyesigire & Co. Advocates, Kampala.

The 1st defendant, J.H. Mukalazi Kiwutta, and 2nd defendant, Suuna Joseph (Administrator of Besweri Mulondo) are represented by Mr. Turyahebwa Gilbert from E MS Anthony Ahimbisibwe & Co Advocates, Kampala.

The 3rd defendant, the Commissioner Land Registration is not represented.

Preliminary objections.

On 22-3-2018 when this suit came up for scheduling, counsel for the 1st and 2nd defendants raised the following preliminary objections:-

  1. The suit is barred for being res judicata.
  2. The plaintiff’s Letters of Administration of the Estate of the late Lewo Kato were not granted in conformity with the law.
  3. The suit is barred by the law of limitation.

Facts of the suit:

The plaintiff contends; that: -

  1. He is the heir and administrator of the estate of the late Lewo Kato vide Administration Cause no. 6 of 1986.

 

  1. The 1st and 2nd defendants fraudulently acquired the suit property and transferred it in their names in 1981 from one Fulezensio Sendaula who purported to be the heir to the late Kato.
  2. The said Fuluzensio Sendaula was not related to the late Lewo Kato but got registered as proprietor of the suit property using forged succession certificate.
  3. Himself and other beneficiaries to the estate of the late Lewo Kato were not aware of the fraud until march 2014 when the 1st and 2nd defendants purported to fence off the suit property.

The 1st defendant contends, that;

  1. He is the registered proprietor of the suit land and has been lawfully in occupation of the same land for more than 30 years uncontested by the plaintiff.
  2. He purchased the suit land from the former registered proprietor Fulujensio Sendaula in 1981.
  3. He was never been aware of any of the alleged forgeries by the former registered proprietor of the suit land.
  4. That he has never participated in any alterations of the alleged succession certificate to the suit land and any alterations made if any should be faulted on the Administrator General who is in charge of issuing those certificates.
  5. He conducted both a physical and a registry search on the suit land during its purchase and the former registered proprietor was both in physical possession and registered as owner of the land.

 

    The 2nd defendant contends; that:-

  1. He is the registered  proprietor of the suit land and has been lawfully in occupation of the same for more than 30 years uncontested by the plaintiff.
  2. He purchased the suit land from the former registered proprietor, Fulizensio Sendaula in 1981.
  3. He has never been aware of any alleged forgeries of the suit land.
  4. He has never participated in any alterations of the alleged succession certificate to the suit land any alterations made if any should be faulted on the Administrator General who is in charge of issuing those certificates.
  5. He conducted both a physical and a registry research on the said suit land during its purchase and the former registered proprietor was both in physical possession and registered as owner of the land.

     Resolution of the three (3) Preliminary Objections.

Both counsel for the parties filed in court their respective written submissions. I have perused and analysed the submissions by each party.

 The 1st Preliminary Objection: Whether the suit is barred by Resjudicata.

It is the submissions by counsel for the 1st and 2nd defendants that the suit land, comprised in Singo Block 123 plot 83 was the subject of proceedings in Land Claim no. 14 of 2005 and designated as Singo Block 123 Plot 46. That the plaintiff herein was the 1st defendant and the late Furujensio Sendaula were all parties to the said suit. The copy of the judgment is attached to the said written submissions, marked “A”.

In his written submissions, counsel for the plaintiff does not agree. He prayed that this Preliminary objection be struck out.

I have perused and analysed the submissions by both parties. I agree with counsel for the 1st and 2nd defendants on the position of the law on suits that are barred for being resjudicata. The cited authorities for that proposition on the 1st Preliminary objection are: Section 7 of the Civil Procedure Act, Cap 71, Posiyano Semakula –Vs- Susane Magala & Others [1979] HCB 90; H. Ochaya –Vs- Peter Ogwang [1976] HCB 33.

However considering the circumstances of this instant case, the said authorities are distinguishable. I have perused annexture “A” to the written submissions by counsel for the defendant, the judgment is for claim no. 14 of 2005, Hajji Wasswa Mukalazi –VS- Ssendaula Laurensio, Mujjabi Kilizestom and Mukalazi Kiwutta. The suit land in that judgment is Ssingo Block 123, plot 47 situated at Ttanda ‘ see page 1, paragraph 2, 3 and 4, at page 2 paragraphs 5, and last paragraph, and at page 5 last paragraph, a judgment of Her Worship Agnes Nkonge, Chief Magistrate, delivered on 24th October, 2011. Thus, the suit land that was litigated upon in that judgment is comprised in Singo Block 123 Plot 47 and not plot 46, as is being alleged by counsel for the 1st and 2nd defendants. Moreso, the two stated plots are not connected in any way whatsoever with plots 82 and 83 being the subject matter in the instant suit. Thus, while the law and all the authorities cited are good for suits barred for being res judicata, they do not support the 1st preliminary objection. Therefore, I make a finding that this suit is not barred being resjudicata. The 1st preliminary objection is answered in the negative.                        

 

The 2nd Preliminary Objection:

Whether the plaintiff’s letters of Administration to theEstate of the late Lewo Kato were granted in conformity with the law.

Counsel for the 1st and 2nd defendants submitted and argued that the letters of Administration relied on by the plaintiff were issued by a court without jurisdiction. And that, therefore, the grant to the plaintiff was defective and cannot confer on the plaintiff locus to bring this suit as an Administrator. Counsel for the 1st and 2nd defendants is relying on section 235 of the Succession Act, whereby it is provided that jurisdiction to grant letters of Administration is vested in the High Court, and the Magistrate’s Court in accordance with section 10 (2) of the Administration of Estates (small estates) Special Provisions) Act, which came into force on 6th June, 1972.

He submitted that, the plaintiff cannot be allowed to sue as an administrator of the estate of the late Lewo Kato and that consequently all his claims as such in the plaint ought to fail. He further prayed that the Letters of Administration ought to be revoked by this court and that the defendants be given costs.

In reply to the submissions by counsel for the 1st and 2nd defendants, counsel for the plaintiffs does not agree. He submitted and argued that the 2nd preliminary objection has no substance. He prayed that the same be overruled with costs.

From the submissions by both parties, it is clear to me that the impugned Letters of Administration was never revoked by any court, that is by the High Court for having been made by a court without jurisdiction.

In his written submissions, counsel for the 1st and 2nd defendants introduces the evidence of annexture “B” which is the valuation report in respect of land comprised in Ssingo Block 123 plot 83, whereby the said land’s value was put at Shs. 6,000,000/= as 16th July, 1985. Here, counsel for the 1st and 2nd defendants introduced new facts as evidence for the defendants. Such evidence, it is settled law is subject to cross=examination by the plaintiff. Such facts do not constitute a point of law to support the preliminary objection in issue. Nonetheless, it should be noted that by 2012, when the impugned letters of Administration were granted to the plaintiff, under section 207 (1) of the Magistrates’ Courts Act, Cap. 16 as amended, the pecuniary jurisdiction of Chief Magistrates was at Shs. 50,000,000/=. This new and later legislation affected the old Act. The Administration of Estates (Small Estates) (Special) Provisions Act, which came into force on the 6th of June, 1972. This old Act of Parliament creates an absurdity in the area of the law. And it is my considered opinion that this absurdity can be resolved by applying the Principles of Statutory interpretation and Rules which govern legislative drafting.

 

It is settled law that where an earlier statute is in conflict with a later one, the later statute prevails. This is a conclusion based on the assumption that the Legislature keeps a breast with the needs of the time and is wiser as time passes. See Uganda Revenue Authority Vs Uganda Electricity Board HCT-CA-001-2006.

 

In the case of Re Williams (1887) 36 Ch. D 537 at 578, it was held, that:-

“ And it appears to be a Constitutional necessity as well as an established rule of construction that the last utterances of the Legislature should prevail over earlier statutes inconsistent with it.’’

 

I must add that the Legislature cannot be assumed to have made a mistake when it enacted an amendment that introduced the Chief Magistrate’s court pecuniary jurisdiction in section 207 (1) of the Magistrates’ Courts Act (Supra), which is a later statute, when the abovestated old statute was still in force. In support of this reasoning, I refer to the case of Income Tax –Vs- Pemal (1891) AC 531 at 549 followed in Supreme Court Civil appeal no. 1 of 1998, Attorney General –Vs- Silver Springs Hotel and 9 others. Lord Hulsbury said:

 

“ But I do not think it competent for any court to proceed upon the assumption that legislature has made a mistake whatever the real fact maybe, I think, a court of law is bound to proceed on assumption that the legislature is an ideal person that does not make a mistake.”

 

Therefore, although there is no express repeal of the Administration of Estates (Small Estates) (Special Provisions) Act (Supra), there is an implicit or implied repeal thereof, rendering the above stated old statute stale which cannot be enforced to affect the instant suit.

Consequent to the above, in Legislature Drafting and Forms 4th Edition at P51, Sir Alison Russell K.C. points out that:-

“ The general presumption is against such a repeal on the ground that the intention to repeal if any had existed, would be declared in express terms, but it is not necessary that any express reference be made to the statute which is to be repealed. The prior Act would be repealed by implication:-

  1. If its provisions were wholly incompatible with the Subsequent Act, or
  2. If the two Acts together would lead to wholly absurd consequences, or
  3. If the entire subject matter were taken away by the subsequent Act.”

In the result, I hold that the impugned letters of Administration are valid, unless and until they are revoked by the High Court. In sum total, I answer the 2nd Preliminary Objection in the negative.

   Whether the suit is time barred.

Counsel for the 1st and 2nd defendants in his written submissions argued that the plaintiffs’ suit is barred by the law of limitation. He referred to sections 5, 6 (2) 19 (1),  20, and 25 of the Limitation Act, Cap. 80 Laws of Uganda. He submitted that the 1st and 2nd defendants have been in possession of the suit land for over 35 (thirty five) years. He prayed that the plaintiffs suit be dismissed on this Preliminary Objection with costs.

In reply, counsel for the plaintiff, in his written submissions does not agree with the position taken by counsel for the 1st and 2nd defendants. He premises his arguments on section 25 of the Limitation Act, Cap. 80 which lays down the exceptions to ceiling provisions created under section 5 of the same Act.

In his pleadings, in the plaint, the plaintiff in paragraph 9 (h) states’ that:-        

“ The plaintiff and other beneficiaries to the estate of the late Lewo Kato were not aware of the fraud until March, 2014, when the 1st defendant and the late Basweri Mulondo purported to fence off the suit property after forcefully evicting them.”

This pleading is protected under Section 21 (1) (c ) of the  Limitation Act (Supra), which provides; that:-

“ …………no action to recover land or money charged on land shall be brought by virtue of this section by any person after the expiry of thirty years from the date on which the right of action accrued to that person or some person through he or she claims.”

 

In the instant case, the plaintiff pleads that he came aware of the alleged fraud in 2014. Thus, section 25 of the Limitation Act (Supra) which provides to the effect that the time starts to run when the fraud is discovered or could have been discovered with reasonable diligence, the plaintiff in the instant case should be allowed to present his case by adducing evidence. 

In the premises, I answer the 3rd Preliminary Objection in the negative.

  Conclusion.

In closing and in total considerations of the parties’ submissions, the law cited and relied on hereinabove in this ruling, my own analysis and resolution of all the three Preliminary Objections in the negative, I hold that the Preliminary Objections lacked merit. Accordingly, therefore, Preliminary Objections are struck out and dismissed with costs to the plaintiff.

 

Dated at Mubende this 22nd day of August, 2019.

 

 

………………………………

DR. JOSEPH MURANGIRA

JUDGE