Wakilii

Tumwine v Baleke alias Nsegumire and Another (HCCS 876 of 2020)

High Court · [2023] UGHCLD 55 · 2023 Preliminary Objection Partly Allowed — Suit Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit transferred from Civil Division to Land Division; ruling on two preliminary objections raised by 1st Defendant
Decision
Suit struck out on grounds of time limitation

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the suit was barred by time limitation. The cause of action arose on 29 February 2008 when the purchase agreement was executed. The suit was filed on 2 May 2019, eleven years later and five years outside the six-year limitation period under section 3(1) of the Limitation Act. Although the plaintiff pleaded fraud discovered in 2018, the exemption under section 25 did not apply because the suit land had been transferred to third parties not sued and against whom no fraud was alleged. The plaintiff was guilty of laches, having failed to check the title at the land office or pursue his claim in reasonable time until 2018. Suit struck out with costs to the defendants.

Outcome

Suit struck out on grounds of time limitation

Facts

The plaintiff filed suit on 2 May 2019 seeking specific performance of a purchase agreement dated 29 February 2008 for land comprised in LRV 3953 Folio 1, Plot 9 Bat Valley Crescent, or alternatively refund of UGX 100,000,000 paid as purchase price. The plaintiff alleged that despite paying full consideration, the 1st defendant failed to deliver the certificate of title, transfer forms, and vacant possession as promised within two years ending 2011. The plaintiff claimed that in 2018, when searching the title, he discovered the land had been converted from leasehold to freehold tenure and registered in the names of third parties: Kikonyogo Investments Ltd and subsequently Bwindi Mgahinga Trust. The 1st defendant denied entering into any transaction with the plaintiff. The suit was originally filed in the Civil Division as HCCS No. 182 of 2019 and later transferred to the Land Division and renumbered HCCS No. 876 of 2020. The 1st defendant raised two preliminary objections at the commencement of the hearing.

Issues

  1. Whether the alleged leasehold interest expired and reverted back to Kampala District Land Board, rendering the suit land unrecoverable and unenforceable.
  2. Whether the action is barred by the six-year limitation period under the Limitation Act.
  3. Whether the plaintiff is entitled to the exemption from time limitation under section 25 of the Limitation Act on grounds of fraud.
  4. Whether the plaintiff is guilty of laches precluding equitable relief.

Orders

  • Suit struck out with costs to the Defendants.
  • Order made pursuant to sections 3(1) and (6) and 25(a)-(d) of the Limitation Act and Order 7 Rule 11(d) of the Civil Procedure Rules.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Nature and Scope — Questions of Fact Cannot Be Raised
A preliminary objection must raise only pure questions of law argued on the face of pleadings on the assumption that all facts pleaded are correct. Where alleged facts have yet to be ascertained and proved, a preliminary objection cannot be raised in respect of them.
Civil Procedure — Limitation of Actions — Commencement of Limitation Period — Date Cause of Action Arises
In an action for breach of contract, the cause of action arises on the date the breach occurs, which is the date the obligation under the contract was to be performed. Where a sale agreement provided for immediate delivery of title documents and vacant possession upon execution, the cause of action for failure to deliver arose on the date of execution of the agreement.
Civil Procedure — Limitation of Actions — Fraud Exception — Subsequent Purchasers
The fraud exemption under section 25 of the Limitation Act does not enable any action to be brought to set aside a transaction affecting property that has been purchased by a person who was not a party to the alleged fraud and did not at the time of purchase know or have reason to believe that any fraud had been committed. Where a plaintiff seeks specific performance but the property has been transferred to third parties not sued and against whom no fraud is alleged, the relief of specific performance is out of reach.
Civil Procedure — Equitable Relief — Laches — Delay Defeating Equitable Claims
Where a party is guilty of laches, he will not take advantage of the exemption under section 3(6) of the Limitation Act that exempts equitable claims such as specific performance from the six-year limitation period. A plaintiff who waits ten years before checking the land title and filing suit, and fails to exercise reasonable diligence, is guilty of laches and cannot obtain equitable relief.
Civil Procedure — Limitation of Actions — Court's Jurisdiction — Enlargement of Time
A suit barred by statutory limitation cannot stand nor be rescued. The court has no inherent jurisdiction to enlarge time laid down by statute.

Legislation cited (8)

Cases cited (5)

  • Dr. Adeodanta Kekitinwa & 3 Ors v Edward Maudo Wakida (Civil Appeal No. 3 of 2007)
  • Hammaann Ltd & Anor v Ssali & Anor (HCMA No. 449 of 2013)
  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Francis Nansio Micah v Nuwa Walakira (SCCA No. 11 of 1990)
  • Makula International v His Eminence Cardinal Nsubuga [1982] HCB 24

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Tumwine_v_Baleke_alias_Nsegumire_and_Another_(HCCS_876_of_2020)_[2023]_UGHCLD_55_(9_March_2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.