Administrators of the Estate of Sir Edward Mutesa II and others v Dr. Muhammad Buwule Kasasa and Another (Civil Suit No. 2139 of 2016) [2020] UGHC 413 (20 March 2020)

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

LAND DIVISION CIVIL SUIT NO. 2139 OF 2016

1. ADMINISTRATORS OF THE ESTATE OF

SIR EDWARD MUTESA II 2. NALINYA DOROTHY NASOLO 3. NALINYA SARAH KAGERE 4. PRINCE DAVID WASAJJA::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFFS

VERSUS

1. DR. MUHAMMAD BUWULE KASASA 2. ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS

BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

RULING

The 1st defendant, Doctor Muhammed Buwule Kasasa who will hereinafter be referred to as "the 1st defendant" raised a preliminary point of law to the effect that the Plaintiffs desire to recover the suit land and at the same time seek compensation and damages in respect of the same land which amounts to approbation and reprobation. The defendant contended that the two reliefs are not sought in the alternative.

The 1st defendant submitted that on the 14th October 2003, the Administrator General filed a suit vide High Court Civil Suit No. 622 of 2003 on behalf of the plaintiffs seeking recovery of land described as land formerly comprised in MRV 962 Folio 19. That the plaintiffs were added to replace the Administrator General after renouncing Letters of Administration to the estate of the late Sir Edward Muteesa II and upon an application by the plaintiffs herein to substitute the Administrator General as plaintiffs.

The 1st defendant submitted that in 2005 the surviving beneficiaries of the late Sir Edward Muteesa II's estate filed a suit seeking compensation and damages in land described as land formerly comprised in MRV 962 Folio 19 vide High Court Civil Suit No. 227 of 2005. That the Plaintiffs in Civil Suit No. 622 of 2003 appear as the 3rd, 5th 12th and 13th Plaintiffs in Civil Suit No. 227 of 2005.

The 1st defendant submitted that the subject matter of the suit in Civil Suit No. 622 of 2003 is land formerly described as land comprised in MRV 962 Folio 19 which is the same as the land described in High Court Civil Suit No. 227 of 2005. That the Plaintiffs in High Court Civil Suit 622 of 2003 seek to recover the suit land as per prayers in the plaint and in High Court Civil Suit No. 227 of 2005 the same plaintiffs are seeking compensation and damages for the loss of land which they seek to recover in High Court Civil Suit No. 622 of 2003.

The 1st defendant submitted that the plaintiffs desire to recover the suit land and at the same time seek compensation and damages in respect of the same land amounts to approbation and reprobation given the fact that the two reliefs are not sought in the alternative.

The 1st defendant further submitted that under the doctrine of approbation and reprobation which is a law of general application, a plaintiff is not entitled to put forward two inconsistent cases and this is based on the principle that a man cannot approbate and reprobate or to blow hot and cold.

The 1st defendant contended that the plaintiffs having filed an independent subsequent suit seeking compensation and damages elected to be compensated and the earlier High Court Civil Suit No. 622 of 2003 was over taken by the Plaintiffs admission that they lost the suit land as pleaded under paragraph four of the Plaint in High Court Civil Suit No. 227 of 2005 and therefore cannot be seen to go back to the same claim of recovery of land.

The 1st defendant cited the case of *Express Newspapers PLC Versus News (U. K) Limited and Others-(1990) 1 W. L. R 320* where it was held that under the doctrine of approbation and reprobation, which was of general application, the plaintiff was not allowed to put forward two inconsistent cases.

The 1st defendant contended that High Court Civil Suit No. 622 of 2003 should be deemed to have been overtaken by events the plaintiffs having elected to claim compensation and damages for the land they admit to have lost.

Counsel for the 1st defendant cited Section 183 of the Registration of Titles Act which is to the effect that; *"Any person sustaining loss through any omission, mistake or misfeasance of the registrar or any other officer or clerk in the execution of their respective duties under this Act or by any error, omission or misdescription in any certificate of title or any entry or memorial in the Register Book or by the registration of any other person as proprietor, and who is barred by this Act from bringing an action of ejectment or other action for recovery of the land, estate or interest, may, in any case in which the remedy by action for recovery of damages as herein provided is inapplicable, bring an action against the Government for recovery of damages; in estimating those damages, however, the value of all buildings and other improvements erected or made subsequently to the loss or deprivation shall be excluded."*

Counsel for the 1st defendant contended that a suit filed under the said provisions suggests that a suit for recovery of land or ejectment is barred by law and a person cannot under the same provisions file a suit for recovery of land and at the same time sue for damages.

Counsel for the 1st defendant further contended that much as there was a claim that the two suits were consolidated thereby making it a single action, the plaintiffs cannot maintain a claim for recovery of land and at the same time seek to recover compensation and damages in respect of the same land they admit to have lost in the subsequent suit.

Counsel for the defendant invited court to invoke its powers under Section 17(2) of the Judicature Act and dismiss the entire claims or High Court Civil Suit No. 622 of 2003 with costs.

Counsel for the Plaintiff gave a genesis of how the said cases came to be filed and what had transpired since then. Counsel for the plaintiffs submitted that the matters went up to the Court of Appeal vide Civil Appeal No. 102 of 2016 where the 1st defendant reiterated the same arguments that the plaintiff cannot seek to recover the suit land and at the same time claim compensation. That the Appeal was dismissed by upholding the decision of the trial Judge and making further orders that two suits in issue be consolidated and be placed before another Judge for hearing and determination as consolidated suits on merit.

Counsel for the plaintiffs emphasised that the two suits were then placed before this court to be heard on merit as consolidated suits.

Counsel for the plaintiffs submitted that the objection of the 1st defendant as regards the existence of the two suits is devoid of any legal merit and that the 1st defendant ought to have appealed the decision of the Court of Appeal that decided that the two consolidated suits be placed before another Judge and be heard on merit as consolidated suits. That the said decision reversed the decision of Justice Masalu Musene in Miscellaneous Application No. 1055 of 2015 who had directed that Civil Suit No. 139 of 2015 be forwarded back to the Land Division of the High Court of Uganda for delivery of the pending ruling in the consolidated cases in Civil Suit No. 622/2003 and Civil Suit No. 227/2005 of the Land Division of the High Court of Uganda at Kampala.

Counsel for the Plaintiffs further submitted that the Court of Appeal thus saw it not necessary to have the consolidated order reviewed but directed that the two suits be placed before another Judge and determined on merit as consolidated suits.

Counsel for the Plaintiffs contended that the objections of the 1st defendant are an abuse of Court process and invited court to condemn the 1st defendant with costs.

Without prejudice to the above, counsel for the Plaintiffs submitted that the suits consisted of land which can categorized into three namely:

1. Land with Titles still registered in the 1st defendant's names; 2. Land with Titles which have already been transferred from the first defendant names into third parties. 3. Land still registered in the 1st defendant's names but occupied by bonafide occupants.

Counsel for the Plaintiffs submitted that in those circumstances, the remedies in respect of properties whose titles were transferred into the names of bonafide purchasers for value and/or were encumbered by bonafide purchasers dictated that the Attorney General is held to account and that the 1st defendant accounts for the titles which are still in his names.

Counsel for the Plaintiffs contended that this is what necessitated the order for consolidation of both suits so as to enable court guard against a multiplicity of claims and counterclaims in respect of the same subject. That once the suits were consolidated it become one action.

Counsel for the Plaintiffs further submitted that in the circumstances of the case, the question of whether the Plaintiffs are approbating and reprobating cannot be disposed of simply as a point of law. That the suits require adducing evidence which includes the detailed status of the suit land. That handling a complex case issue summarily before giving evidence offends the definition of a preliminary objection as was held in the case of *Mukisa Biscuits versus West End Distributors-[1969] EA 696* where it was held that *"A Preliminary objection ... raises a pure point of law which is argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion."*

Counsel for the Plaintiffs further submitted that the subject matter is land which is about 640 acres located in a prime area in Uganda and has a chequered history. That the courts of law have consistently held that land is a very sensitive and intricate matter where individual proprietary rights are at stake and as such justice requires that the disputes involving land are disposed of on their merits and are not appropriately disposed of on preliminary points of law as was held in the case of *Habib Rhemu's Administrators versus Esther Kiyingi-H. C. C. S. No. 575 of 2002*.

Counsel for the Plaintiffs prayed that the 1st defendant's preliminary objection should be overruled with costs to the Plaintiffs.

Counsel for the 1st defendant filed submissions in rejoinder whose emphasis was that under Section 183 of the Registration of Titles Act Cap 230, the Plaintiffs could not sustain two inconsistent claims seeking to recover the suit land and seeking compensation in respect of the same land and whether this court can hear and determine a matter involving third party interests when the third parties are not parties to the suit.

The issue to determine now is whether the Plaintiffs can seek for recovery of the suit land and at the same time seek for compensation in respect of the same land as contained in the consolidated cases vide Civil Suit No. 622 of 2003 and Civil Suit No.227 of 2005.

The land in dispute was formerly comprised in MRV 962 Folio 19.

The Plaint vide Civil Suit No. 622 of 2003-Administrator General versus Dr. Kasasa Buwule Muhammed sought for the following remedies:

1. That the suit property be declared part of the estate of the late Sir Edward Mutesa II.

2. A declaration that all transactions on the suit land by the 1st defendant were fraudulent and unlawful.

3. A declaration that the 1st defendant did not acquire lawful title from the estate of Sir Edward Muteesa II or Lake View Properties Limited.

The Plaintiffs vide Civil Suit No. 227 of 2005 –Kabaka Ronald Muwenda Mutebi II and others versus The Attorney General sought for the following remedies:

1. General damages equivalent to the open market value of the suit land.

2. Mesne profits occasioned by the deprivation and/or non-use of the suit property.

3. Costs of the suit.

4. Interest on (a), (b) and (c) at the bank rate of 25% per annum from the date of filing the suit till full payment.

The Plaintiffs submissions are based on the decision that was made In the case of *Dr. Muhamad Buwule Kasasa versus The Administrators of the Estate of the Late Sir Edward Muteesa and others -C. A. C. A No. 102 of 2016* where it was held that the said cases be consolidated and heard on their merit.

*"...registration of any other person as proprietor, who is barred by this Act from bringing an action of ejectment or other action for the recovery of the land, estate or interest, may in any case in which the remedy by action for recovery of damages as herein provided is inapplicable, bring an action against the Government for recovery of damages; in estimating those damages, however, the value of all buildings and other improvements erected or made subsequently to the loss or deprivation shall be excluded."*

The Plaintiffs having pleaded in their subsequent case that they had lost the suit land, could not again claim for its recovery and at the same time claim for compensation especially where the two claims were not pleaded in the alternative.

I also agree with the submission of counsel for the 1st defendant that the Plaintiffs elected to file the subsequent suit to claim for compensation and damages and therefore they cannot go back to claim the same land they admit they lost.

The Plaintiffs were also seeking to claim recovery of the suit land where they claim in the subsequent suit that the suit land had changed many hands as a result of the Commissioner's omissions and the suit land had been encroached squatters and bonafide occupants. These were not made parties in Civil Suit No. 622 of 2003.

Article 44 of the Constitution provides that *"Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms-*

*(a)--- (b)--- (c) the right to a fair hearing;*

*(d)---*

Since the Plaintiffs acknowledge in their subsequent suit that the suit land had changed many hands and had been encroached by squatters and bonafide occupants, there was no way they could be condemned unheard as the remedies sought in the said suit would substantially affect them yet they were not made parties to the said suit. That would be a violation of their Constitutional right to a fair hearing.

I will therefore uphold the preliminary objections raised by counsel for the 1st defendant and dismiss the entire claims vide High Court Civil Suit No. 622 of 2003-Administrator General versus Doctor Kasasa Buwule Muhammed with costs to the 1st defendant.

Hon. Justice John Eudes Keitirima 20/03/2020