Court name
High Court of Uganda
Case number
Civil Appeal-2016/68
Judgment date
16 June 2020

Nabirye v Bamutaze and 3 Others (Civil Appeal-2016/68) [2020] UGHC 204 (16 June 2020);

Cite this case
[2020] UGHC 204
Coram
Luswata, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA HOLDEN AT JINJA

CIVIL APPEAL NO.068 OF 2016

(ARISING FROM CIVIL SUIT NO. 44/2014 OF KALIRO MAGISTRATE G.1. COURT)

Appeal from the ruling of the Magistrate G.1 of Kaliro Delivered By Her Worship Karamagi Pamela, Magistrate Grade 1 on 24/05/2016

SERISTA NABIRYE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT

 

VERSUS

  1. AUGUSTINE BAMUTAZE
  2. ISABIRYE BERNARD
  3. NABIRYE CATHERINE
  4. SANGARA ALEX:::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

JUDGEMENT ON APPEAL

BEFORE: HONOURABLE EVA K. LUSWATA.

Introduction and background

            This appeal arises from the decision (ruling) of the Her Worship Karamaji Pamela Magistrate Grade 1, Iganga at Kaliro in Civil Suit No.44 of 2014. At the hearing of 17/9/201, counsel for the defendant (now appellant) raised two preliminary objections that,the plaint did not disclose a cause of action and was barred by limitation. The Learned Magistrate giving reasons, overruled both objections, and thus this appeal.

            The appellant who was represented by M/s Kitende Byarugabha & Co., Advocates, raised three grounds of appeal namely:

  1. The learned trial magistrate G.1 erred in law and in fact by holding that the plaint disclosed a cause of action.
  2. The learned trial magistrate G.1 erred in law and in fact by holding that the issue concerning limitation be determined after evidence has been heard from both sides.
  3. The learned trial magistrate G.1 erred in law and in fact that the plaintiffs were claiming as beneficiaries.

 

By agreement, both counsel filed written submissions to argue and oppose this appeal. I note that the submissions for the respondent were filed late and according to applicant’s counsel, never served upon them. That notwithstanding, applicant’s counsel filed a response, and never raised any point of prejudice against his client as a result of non-service. I accordingly exercise my discretion to consider all submissions as properly filed, and will in my ruling refer to them accordingly.

 

            The Magistrate’s decision was a result of preliminary objections and did not necessarily entail the evaluation of evidence. However, this is still a first appeal to the High Court, and I am enjoined to consider the objections and that decision in much the same way as the Magistrate did, and then draw my own conclusions. In doing so, I am empowered to reverse any finding of the trial Court that is demonstrably based on wrong principles of law and fact. See for example D.R Panyda Vrs R 1957 (EA) 336 and Selle & Anor Vrs Associated Motor Boat Company Ltd & Anor (1968) EA 126 and Havinder Vs Asea & Anor Civil Appeal No. 8/2016 (2017) UGHCLD 22 (10th March 2017) (Arua Court).

 

Ground 1.

            In her decision the Learned Magistrate found that the respondents who claimed to be beneficiaries of the estate of the late Bamutaze (hereinafter the deceased) were being deprived of land situate at Kanansuna Village, Budomero Parish, Bumanha Sub County, Kaliro District (hereinafter referred to as the suit land) by the appellant, its care taker. She for that reason found that a cause of action was disclosed in the plaint.

            Counsel for the appellant disagreed. He argued in his submissions that the appellants’ claim of being beneficiaries of the deceased’s estate was never pleaded and it was not disclosed when they received their interest in it by gift. He argued further that, it was stated clearly in the plaint that the respondents were not in possession of the suit land which belonged to the late Nafa Mugonya, the appellant’s father. That the appellant was in 1987 allowed possession of it by clan leaders after Mugonya’s death. He pointed out that the suit land was in Civil Suit N0.20 of 1986 decreed to be the property of the appellant, and the respondents did not appeal or file objector proceedings against that decision. He concluded therefore that they had never enjoyed any right over the suit land as they were living elsewhere, and as such, no rights were violated by the appellant with respect to it.

            In response, M/s Musimani & Co., Advocates counsel for the respondent, stated that one of the prayers in the plaint was for a declaration that the suit land belonged to the appellant and respondents jointly. That it was also disclosed that the suit land once belonged to the deceased, the respondents’ grandfather, and that the appellant, who was also the deceased’s granddaughter, by laying claim as sole owner, was depriving them of it. That as a result, which they considered the appellant’s actions a violation of their rights to claim as beneficiaries of the deceased’s estate.

            What constitutes a cause of action has been explained in the land mark case of Auto Garage & Anor versus Motokov (1971) EA 514 (No. 3). In his lead judgment, Spry, V.P. held that:-

"I would summarize the position as I see it by saying that if a plaint shows that the plaintiff enjoyed a right, that the right has been violated and that the defendant is liable, then, in my opinion, a cause of action has been disclosed and any omission or defect may be put right by amendment".

It was further explained in AG Vrs Major General David Tunyenfunza quoted with approval in Narottam Bhatia & Anor Vrs Boutique Shazam Ltd SCCA No. 16/2009 that

“A cause of action ……..is a bundle of facts which, taken with the law applicable to them gives the plaintiff a right to claim relief against the defendants……everything which if not proved, would give the defendant a right to an immediate judgment must be part of the cause of action must be antecedent to the institution of the suit”.

Justice Akiki Kiiza then advised, and I agree that, a court considering whether a cause of action has been disclosed should restrict themselves to the contents of the plaint. That it must be apparent on the face of the plaint that the defendant is liable for violating the rights disclosed in the claim. See Maximovoleg Petrovich Vrs Premehandra Shenoi & Anor (1988) KALR 549. Also see Ssande v Kanyije & 2 Ors (HCCS No. 375/2016) [2018] UGHCLD 42 (31 May 2018).

            Therefore for there to be a cause of action, the plaintiff must prove;

  1. That he/she enjoyed a right.
  2. That the right has been violated.
  3. That the defendant is liable.

 

            It is disclosed in the plaint that the suit land is ancestral family land which serves as a burial ground for the entire family of Bagonya clan. That the deceased fathered three sons, Nafa Mugonya, Dandaire Mugonya and Sangala Mugonya. That the appellant is the daughter of Nafa Mugonya, and the 3rd respondent his granddaughter. That the 1st respondent is the son of Dandaire Mugonya and the 2nd respondent, being the 1st respondent’s son is therefore Dandaire’s grandson. That on the other hand, the 4th respondent was Sangala’s son and therefore, the deceased’s grandson.  It is claimed that they received the suit land jointly with the appellant from the deceased but could not immediately take possession as they were resident elsewhere. That following the deceased’s death, the suit land was verbally entrusted into the care of the appellant by the clan leaders for her joint benefit with the respondents. That she instead assumed ownership of the entire suit land and prevented the respondents from taking possession and use of it.

 

            It is stated in paragraph 4(a) of the plaint that the respondents obtained the suit land jointly with the appellant as a gift intervivos from the deceased. Such a gift is defined to be “Gift(s) between the living, which are perfected and become absolute during life time of donar and donee.” Black’s Law Dictionary, 6th Edition at page 688.The Court in Joy Mukobe Vrs Willy Wambuwa HCCA No. 55/2005 found that for a gift intervivos to take root, the following elements must be present:

  1. The donar must intend to give the gift/property
  2. The donar must deliver the gift/property
  3. The donee must accept the gift/property

It was further held in Re Estate of Late Gideon Manthi Nzioka (Deceased) (2015) KLR, that gifts of land must be by way of registered transfer, and where the land is not registered,  it must be in writing or by a declaration of a trust in writing.

 

            As pointed out by appellant’s counsel, no document was attached to the plaint as evidence of the gift. He argued that this was an indication that no such gift was made or if it was made, the donation was not legally complete. That therefore with such facts, the respondents would not be deemed to have had a right, which was violated by the appellant.

 

            To the contrary, the bulk of the facts in the plaint appear to point to the fact that the claim was not as a result of a gift before death, but as a result of the respondents being beneficiaries of the deceased’s estate, and therefore a claim in succession. The following are my reasons:

 

            It is stated in paragraph 11 of the plaint that the respondents acquired the land from the deceased as of right, all of them being his direct descendants and that denying them that right would render them landless. Following that claim, a detailed explanation is given in paragraphs 4b) to 4e) of the actual lineal relationship of each party in the suit to the deceased. It is then stated that following the deceased’s death, the land was entrusted to the respondent to act as care taker on her own behalf, and on behalf of the respondents.That when she attempted to claim it all by herself, the clan members intervened by allocating shares to the appellants and the respondent as beneficiaries. It is further stated in paragraph 5, that the suit land is actually ancestral land of the family of the Bagonya clan and that the appellant is only entitled to part of it (her share as a beneficiary).The respondents pleaded further that, by claiming it all and parceling part of it to her own sons (of a different clan), the appellant is acting unfairly and illegally and violating the respondents’ constitutional rights, and that deprivation will result into extinction of the deceased’s family.

 

            It is our succession law that legal beneficiaries of a deceased person are entitled and can claim as of right, a share in a deceased person’s estate. Beneficiaries are determined by confirming their ancestry and being direct descendants of a deceased person, what is deemed in Section 20 (1) of the Succession Act, as lineal consanguinity. Going by the explanations given in the plaint, the claimants are grandsons and a great grandson, while the appellant is a granddaughter of the deceased. Under section 21 of the Succession Act (hereinafter the Act), they would as a result be considered under Section 21 of the Act to be of collateral consanguinity to the deceased.

 

            It is provided in Section 22 of the Act that those related to the deceased by full blood (as is the case here), there will be no distinction. It would follow therefore, that the deceased’s three sons being dead, their offspring being the 1st and 4threspondents, can stake a claim as the persons next in line of consanguinity (as provided in the consanguinity table in the 1st schedule to the Act). However, I note that beyond stating that she was Nafa Mugonya’s granddaughter, it was not explained in the plaint who …………..parents where and whether they were still alive at the time of filing the suit. However, those are details that could be provided during hearing of the suit. On the other hand, Isabirye Bernard being a son of the 1st respondent, and the latter being  alive at the point the suit was filed, the 2nd respondent could not as yet lay a claim to the deceased’s estate.

 

             Under Section 24 of the Act, the estate of an intestate will devolve into a personal representative who by powers of Letters of Administration is empowered to distribute the estate. Such a person would ordinarily have the powers to sue in order to protect or claim on behalf of the estate. In this case, it was not disclosed that Letters of Administration had been obtained. That notwithstanding, it is now settled law in Uganda that recognized legitimate beneficiaries have a right to protect their interest in an intestate’s estate, and may do so even where no letters of administration have yet been taken out with respect of that deceased’s estate. See Israel Kabwe Vs Martin Banoba Musiga Civil Appeal NO. 52 of 1995. It would follow therefore that the 1st, 3rdand 4th respondents as grandchildren of the deceased and therefore beneficiaries of his estate, had a locus standi and thus a cause of action to sue the appellant in order to preserve the estate and protect their respective claims to it.

 

            Would there be any doubt in my mind that a cause of action is present, I would refer to the prayers sought in the plaint, one of which is for a declaration from the court that the parties to the suit are entitled to an equal share in the deceased’s estate.  Declaratory orders can be sought whenever a party seeks to confirm a right. It is a remedy which in our law is provided for under Order 2 rr 9 CPR which provides as follows:

“No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought by the suit, and the court may make binding declarations of right whether any consequential relief is or could be claimed or not”.

 

            In summary I hold that the Learned Magistrate was correct to hold that the 1st, 3rd and 4threspondents’ claim was as beneficiaries to the deceased’s estate and that they have been deprived of their rights by the appellant. The same would not apply to the 2ndrespondent. Even then, nothing should have stopped this suit to proceed. It has been previously held by the High Court that it is best not to apply to have any point of law argued before trial, unless the objection is one which will dispose of the whole action. Thus hearing of the case could have proceeded by all four plaintiffs and having heard the evidence, a decision made on which of them disclosed a cause of action. See Falcon Estates Ltd v Bismillah Trading Ltd (M/A No. 221/2016) [2016] UGHCLD 24 (4/11/2016);

Accordingly, the first and third grounds substantially succeed.

 

Ground 2:

            In her decision, the Trial Magistrate found that the issue of limitation could only be effectively addressed and determined after hearing evidence from both sides. I agree with appellant’s counsel that this was a decision on wrong principle because time limits set by statute, are matters of substantive law that must be strictly complied with. See for example, URA Vrs Uganda Consolidated Properties Ltd (1997-2000) UCLR 149. It is trite that statutes of limitation are in their nature strict and inflexible enactments so that, litigation is automatically stifled after a fixed length of time, irrespective of the merits of a particular case. See for example, Re: Application of Mustapha Ramathan Civil Appeal No.25/1996 and Hilton Vs Steam Laundry [194]KB 61 at page 81.In order to determine whether a claim has been filed in time, the Court should restrict itself to the contents of the plaint and its attachment and nothing else. There is no requirement to consider the evidence of either party. See for example, Madvani International S.A. Vrs AG SCCA No. 48/2004. Therefore, as pointed out by appellant’s counsel, it was wrong for the Magistrate to have found that limitation would bedealt with after hearing of evidence. That said, I do hold the opinion that the suit was not time barred.

 

            Under Section 20 of the Limitation Act, claims to estates of deceased’s persons must be brought before the expiration of 12 years from the date when the right to receive a share or interest accrued.

 

            It was argued for the appellant that she was put into possession of the suit land on 30/04/1987 after being the successful party in Civil Suit No. 20/1986 and M/A No. 59 /86. That thus, a period of 36 years has lapsed since then and the respondents did not in the plaint disclose any disability preventing them to act in time.  The decision in Swaleh Bin NassiriVsSalim Bin Swaleh Bin Hussein [1960] EA 426 was presented in support of that submission.

 

            Contrary to the above arguments, it was clearly disclosed in paragraph 8 of the plaint that the cause of action arose in August 2013 when the appellant forcefully trespassed on the suit land in its entirety and sabotaged the good intentions of the clan members to distribute it amongst all the beneficiaries equitably. As pointed out by respondent’s counsel, the cause of action did not arise in 1986 or 1987 after the court case, but when the appellant begun to make adverse claims to the entire plot of in total disregard of the entitlements of all the other beneficiaries. It is apparent in paragraph 4(f) of the plaint, that the plaintiffs were aware and accepted the fact that following the deceased’s death, the suit land was entrusted into the care of the appellant for her benefit, and for the benefit of the respondents who lived elsewhere at the time.Accordingly, I am prepared to acknowledge that the cause of action arose in 2013. The suit having been filed on 10/12/2014, just one year and five months later, it could not be deemed to have been time barred.

 

            The particulars given in the written statement of defence with regard to Civil Suit No. 20/1986 would not be relevant in deciding the issue of limitation. I note infact that neither of the respondents was a party to that suit and there was no claim in the defence that the suit from which this appeal arose, was res judicata.

 

            In summary I find that the Magistrate should have made a finding whether the suit was time barred at the point an objection was raised by appellant’s counsel. That said, I have re-evaluated the facts and applied the law to confirm that the suit was indeed not time barred. The second ground thereby succeeds only in part.

 

            In conclusion, the appeal has substantially failed and stands dismissed. Since there has been partial success on the second ground, I order that the respondents shall be entitled to one half of the costs of the appeal.

 

            I direct that the record be returned to the Kaliro Magistrate’s Court for hearing to continue.

 

I so order.

…………………………

EVA K. LUSWATA

JUDGE

16/6/2020