Ssemakula V Serunjogi (Civil Suit No 187 of 2012) 2013 UGHCLD 46 (27 May 2013)

THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)
CIVIL SUIT NO. 187 OF 2012
STEVEN SEMAKULA ::::::::::: PLAINTIFF
VERSUS
SAMUEL SSERUNJOGI ::::::::: DEFENDANT
RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA
1.0 Introduction
1.1 The plaintiff through his joint lawyers M/s Kaweesa & Co.
Advocates and Fitz Patrick Furah & Co. Advocates brought this suit
against defendant. The defendant through Hamidah K. Associated
Advocates filed a written statement of defence.
1.2 On 18th April, 2012 when this case came up for scheduling
conference counsel for the defendant raised the following
preliminary objections:-
1.2:1 That the plaint does not disclose a cause a cause of action against
the defendant.
1.2.2 That the suit is statute barred by Limitation Act.
2. Facts of the case/suit

The plaintiff instituted the suit against the defendant for recovery of land,
cancellation of the defendant’s title as registered proprietor of land
comprised in Kibuga Block 8, plot 234 Mengo, and registration of the
plaintiff as owner thereof, a permanent injunction, general damages and
costs of the suit.
The plaintiff claims that the late Alegizane (Alexander) Mudembuga, K.

Ndugwa was the registered owner of the land comprised in Kibuga Block
8, plot 234 Mengo and by Will dated 1957, he bequeathed the said land to
the late Lawulensio Mukiibi. Letters of Administration to the estate of the
late Alegizane Mudembuga K. Ndugwa were allegedly granted to
Alekizande Katende Ndugwa who died before transferring the said land to
the late Lawulensio Mukiibi. The administrator of the estate of the late
Alekizande Katende Ndugwa allegedly signed transfer forms in favour of
the late Luwulensio Mukiibi who died before registering the said transfer.
The plaintiff as administrator of the estate of the late Lawulensio Mukiibi
attended the registry to effect the transfer into his name and found that the
land was registered in the defendant’s name.
3. Issues framed by parties to this suit.
From the above raised preliminary objections raised by Counsel for the
defendant, the following issues were framed by the parties:-
3.1 Whether the plaint discloses a cause of action against the defendant.
3.2 Whether this suit is time barred.
4. Resolution of the preliminary objections by court.
4.1 Issue no.1: Whether the suit discloses a cause of action.
A cause of action is disclosed when it is shown that the plaintiff had right,
and that right was violated, resulting into damages and the defendant is
liable.
The decision in Tororo Cement Co.Ltd vs Frokina International Ltd;
Civil Appeal No. 21 of 2001 laid down the three essential elements to
support of a cause of action:
(1)The plaintiff enjoyed a right.
(2)The right has been violated.
(3)The defendant is liable.
In the instant case the plaintiff alleges that the land in question belonged to
his late father Lawulensio Mukiibi as per translated Will in paragraph 5 of
the plaint.
Under Section 180 and 192 of the Succession Act Cap. 162, the
administrator or the executor of a deceased person is his legal
representative and is entitled to all rights including suing on behalf of the
deceased. Moreso, under Section 25 of the Succession Cap. 162 an
administrator is a trustee who holds property on behalf of all beneficiaries.
Counsel for the defendant submitted that the plaintiff has no right/locus in
his own capacity to bring a suit to recover what belongs to the estate where
there is an appointed administer and has instead brought present suit in his
own right not as an administrator of the estate of the late Lawulensio
Mukiibi.
Counsel for the defendant concluded by submitting that, therefore the

plaintiff has no right or locus to sue in his own capacity. That it is their
submissions that the plaint is incurably defective and should thus be struck
of the record and the entire suit be dismissed with costs for failure to
disclose of a cause of action.
Counsel for the plaintiff does not agree. He submitted that the plaint
discloses a cause of action against the defendant. He prayed that the 1st
preliminary objection be dismissed.
In Cooke vs Gull LR 8E.P 116 and in Read vs Brown 22 QBD P.31, a

cause of action was defined as every fact which is material to be proved to
enable the plaintiff succeed or every fact which if denied, the plaintiff
must prove in order to obtain judgment. A perusal of the plaint shows that
the plaintiff has pleaded all relevant facts to show that he has a cause of
action against the defendant.
In paragraph 4 of the plaint, the plaintiff pleaded that the suit land
belonged to the late Aligizane Muddembuga K. Ndugwa who by his will
dated 14th December, 1957 bequeathed the same to the late Lawulensio
Mukiibi the father of the plaintiff. This means that Lawulensio Mukiibi
became the equitable owner of the suit land. Before he could be registered
as the proprietor thereof he passed on. The plaintiff then acquired Letters
of administration to his estate on 7th July, 2004. See annexture ‘B’ to the
plaint.
Section 180 of the Succession Act provided that the administrator of a

deceased person is his or her legal representative for all purposes and all
the property of the deceased person rest in his or her as such. In Maureen
Tumusiime vs Macario and another [2006] I HCB 127 Court held that
according to Section 180 of the Succession Act, ownership of the property
of the deceased vests into the one being appointed administrator or
executor through grant of Letters of Administration or probate.
Counsel for the plaintiff submitted that by obtaining letters of

administration the plaintiff acquired the right and capacity to institute the
instant suit against the defendant whom he said, fraudulently acquired the
property of the estate of the late Lawulensio Mukiibi. In Bulugeri vs
Ntambi [2009] I HCB 61 Court held that grant of letters of administration
enable the plaintiff to defend or commence action in respect of disputed
property like in the instant suit.
In Elly B Mugabi vs Nyanza Textile Industries Ltd [1992-93] HCB 227

Court held that a cause of action arises when a right of the plaintiff is
affected by the defendant’s act or omissions. By the defendant allegedly
fraudulently causing his registration as the proprietor of the suit land, his
actions adversely affected the plaintiff’s interest in the suit land as
administrator and beneficiary as well.
It is my finding that there are triable issues between the plaintiff and the
defendant in this instant suit.
In Kebirungi vs Road Trainers Ltd & 2 others [2008] HCB 72 Court

held that the question whether a plaint discloses a caution of action must
be determined upon perusal of the plaint alone together with anything
attached so as to form part of it. From the perusal of the plaint on record
together with the annextures, it is clear that the plaint discloses a cause of
action against the defendant. This preliminary objection therefore ought to
be over ruled.
In the premises, the 1st preliminary objection has no merit. it is accordingly

overruled.
4.2 Issue no.2: whether the suit is statutory barred under the
limitation Act, Cap 80.
Under Order 7 rule 11 (d) Civil Procedure Rules, a plaint shall be rejected
where the suit appears from the statement in the plaint to be barred by any
law. Under Section 5 of the Limitation Act 80, it’s provided that no action
shall be brought by any person to recover any land after the expiration of
12 years from the date on which the cause action arose. In the case of
Departed Asian Property Custodian Board vs Dr. J.M Masambis
Court of Appeal, Civil Appeal NO. 04 of 2004:-
Court held that the action against the appellant was time barred under the
Limitation Act Cap.80. Court further emphasized “ that this Court and
the supreme Court have held in many cases that enforcement of
provision of a statute is mandatory…..”. Therefore the suit was
dismissed for being statutory barred under Order 7 rule 11 (d) CPR.
Counsel for the defendant submitted that in regard to the above position of
the law and authorities, the instant suit is statutory barred and that the
plaintiff has no locus and prayed that same be dismissed with costs.
Counsel for the plaintiff submitted that the plaintiff’s cause of action is
partly based on fraud. The particulars of fraud are set forth in paragraph 7
of the plaint. Section 25 of the Limitation Act provides for the
postponement of the limitation period in cases of fraud and categorically
states that the period of limitation shall not begin to run until the plaintiff
has discovered the fraud. The plaintiff in his plaint averred in paragraph 8
that he was not aware that his late father was the beneficiary of the suit
land until 2007 when his late grandfather Bisatu Yokana Mayanja gave
him a copy of the Will of the late Aligizane Ndugwa. That thus the cause
of action arose in 2007 when the plaintiff discovered the fraud. That the
plaintiff did not sit on his rights for 23 years as alleged because that he
obtained letters of administration to the estate of the late father in 2004.
That he is, therefore, within time to file the instant suit. In David Mukasa
Sendaula & anor vs Christine Nakalanzi [1992-930 HCB 179, Court
held that cause of action arose when the plaintiff discovered the alleged
fraud.
In the plaint, fraud has been imputed on the transferee who happens to be
the defendant in this case as per the authority of Kampala Bottlers Ltd vs
Daminico (U) Ltd, Civil Appeal No. 22 of 1982. The rest is a matter of
evidence that can only be resolved during or after a full trial.
Accordingly, therefore, the 2nd preliminary objection, too, has no merit. It

is found in the negative.
5. Conclusion
In the result and for the reasons given hereinabove in this ruling, the two
preliminary objections raised by the defendant’s Counsel are dismissed
with costs to the plaintiff.
Dated at Kampala this 27th day of May, 2013.

sgd
Murangira Joseph
Judge

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THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 187 OF 2012

STEVEN SEMAKULA ::::::::::: PLAINTIFF

RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA

2. Facts of the case/suit

The plaintiff claims that the late Alegizane (Alexander) Mudembuga, K.

3. Issues framed by parties to this suit.

3.2 Whether this suit is time barred.

4. Resolution of the preliminary objections by court.

4.1 Issue no.1: Whether the suit discloses a cause of action.

Counsel for the defendant concluded by submitting that, therefore the

In Cooke vs Gull LR 8E.P 116 and in Read vs Brown 22 QBD P.31, a

Section 180 of the Succession Act provided that the administrator of a

Counsel for the plaintiff submitted that by obtaining letters of

In Elly B Mugabi vs Nyanza Textile Industries Ltd [1992-93] HCB 227

In Kebirungi vs Road Trainers Ltd & 2 others [2008] HCB 72 Court

In the premises, the 1st preliminary objection has no merit. it is accordingly

Accordingly, therefore, the 2nd preliminary objection, too, has no merit. It

Dated at Kampala this 27th day of May, 2013.

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