[2022] UGHCLD 131

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DMSION) CryIL SUIT NO. L2I3OF 2O2L s JAMES KAKOOZA :::::::: : :::::: ::: :: : PLAINTIFF

#### VERSUS

# NALWEYISO GERTRUDE DEFENDANT BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

#### RULING:

- 10 The plaintiff on 20th December, 2021 instituted a suit against the defendant for trespass to land comprised in LRV Plot 329 Block 268 Naziba Lubowa in Wakiso District measuring approximately 0.089 hectares. - ¹⁵ The defendant on 13th January, 2012 filed her written statement of defence in which under paragraph 3 she notified the plaintiff that before the hearing of the case she would raise preliminary objections capable of substantially disposing of the main suit to wit:-

### ²⁰ 1. That the plaintiff's plaint discloses no cause of action against the defendant.

2. That the suit is barred by limitation.

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3. That the summons accompanying the plaint extracted on the 21d December,2O2L was served on Kalema Joshua a minor and hence there was no effective seruice.

### 1. Whether the plaint discloses a cause of action.

30 The defendant submitted that order 6 rule 3o(1) of the cPR provides that:-

> "The court may, upon application order any pleading to be struck outon the gruund that itdiscloses no reasnable ause of action or answer and in any such ase or in the case of the suit or defence being shown by the pleadings to be frivolous or vexatious, may order the suit to be stayed or dismissed or Judgment entetd accordingly as may beiust"

The defendant also cited Order 7 rule 11 of the CPR which provides that "The plaint shall be reiected in the following cases:-

40 (a) Where it does not disclose a cause of adion. The defendant cited the case of Kapeka Coffee Works Ltd Vs NPART - C. A. C. A Ilo. 3 of 2OOO where it was held that in determining whether ^a plaint discloses a cause of action the court must look only at the plaint and its annextures and nowhere else,

The defendant also cited the case of Tororo Cement Co, Ltd vensus Frukina fnternational Limited - S,C,C,A No, 2 of 2OO2 where it was held that in order to prove that there is a cause of action, the plaint must

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show that the plaintiff enjoyed a right; that the right has been violated; and so that the defendant is liable.

The defendant submitted that under Paragraph a(a) of the plaint, the plaintiff alleges to have bought the suit land which is approximately 0.089 hectares put that on the perusal of the sale agreement at[ached, it does not show the size of the land purchased by the plaintiff. That the plaintiff did not attach any copy of the duplicate certificate of title which was a basis for the said purchase. That the certificate of title as indicated on Pages 4 -1 0 of the plaintiff's trial bundle is not in the names of the plaintiff and is still in the names of Birungi Simpson.

The defendant contended that the plaintiff has no interest and claim in the suit land and hence could not institute this suit against the defendant.

65 70 The defendant further contended that the agreement attached on the plaint as executed on 24th April, 2006 which the plaintiff alleges to have used as ^a purchase document but the title that was filed in court is in the names of Birungi Simpson which were entered on 12th July, 2006. That there was no way the plaintiff could have the suit land comprised in LRV Plot 329 Block 268 Naziba, Lubowa on 24th April, 2006 yet the title is a creature of 12th July, 2006. That this proves to this couft that the plaintiff's suit is just an intended ploy to dispossess the defendant of her land on which she has lived for over 25 years.

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That under paragraph 4(b) of the plaint, the plaintiff alleges that he took possession of the suit land shortly after the purchase of the suit land from Birungi simpson and has been ln possession to date but that there is no iota of evidence attached and/or annexed to prove this assertion. That the reading of the whole plaint shows that the plaintiff failed to demonstrate to this court his exclusive possession and control of the suit land.

80 85 The defendant contended that it was trite law that for someone to institute ^asuit for trespass, he or she should be in possession of the land' The defendant cited the case of E. M,N Lutaya versus sterling civil EngineeringCo. Ltd-s.c.c,Allo. TTof2oo2tobuttressher submissions. That the plaintiff's claim that the defendant is a trespasser on the suit land is therefore baseless and without merit because the plaintiff has no locus to bring this action against the defendant'

#### Plaintiff's replv to the above preliminary obiection'

90 95 The plaintiff submitted that his case discloses a cause of action against the defendant. That the plaintiff's cause of action can be got from his plaint and annextures thereto. The plaintiff reproduced paragraphs three to ten of his plaint and contended that it was clear that the plaint meets all the test for disclosure of a cause of action. The plaintiff maintained that his action is for trespass to land. The plaintiff contended that he enjoyed a right to the suit property and that right was violated by the defendant who intedered with the plaintiff's use of the suit land by stopping the plaintiff's contractor from executing construction works on the suit land. That on the 14th December, ²⁰²¹the defendant without the consent/permission of the plaintiff built ^a

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perimeter wall on the plaintiff's suit land and hence the defendant trespassed and/or interfered with the plaintiff's quiet enjoyment of the suit land and developments thereof.

The plaintiff went ahead to demonstrate the pafticulars of trespass committed by the defendant on his land. The plaintiff also cited many authorities to buttress his submissions.

## Decision of court on ore!iminarv ob ron No. ¹ whether the plaint discloses a cause of action against the defendant'

It was held in the case of Mukisa Biscuit Manufacturing co. Limitd vetsus west End Distributors Ltd 8969J E,A 697 that a preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings and which if argued as a preliminary point of law may dispose of the suit.

115 ^Apreliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law. It cannot be raised if any fact has to be asceftained or if what is sought is the exercise of the judicial discretion' The gist of the defendant's submission on the said preliminary objection is that the plaintiff has not been able to demonstrate in his pleadings that he has sufficient evidence to prove his cause of action in trespass'

L20 It is not a requirement of the law that all evidence must be adduced in pleadings for one to ascertain whether the plaintiff has a cause of action. order 6 rule 1of the civi! Procedure Rules provides that"(i) Every

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# pleadingshatlcontainabriefstatementofthematerialfactson which the party pteading relies for a claim or defence' as the case

125 may be'|

> The material facts which the plaintiff relies on are contained in paragraphs ⁴to 8 of his plaint where he claims that the defendant has trespassed on his land comprlsed in LRV Plot 329 Block 268 Naziba Lubowa Wakiso District. He lists the pafticulars of trespass which he attributes to the defendant and claims that the defendant constructed a perimeter wall on the suit land. The details of the evidence are yet to be adduced in court' This preliminary point of law does not raise a pure point of law but raises facts that are yet to be proved and hence cannot be disposed of at this stage' The preliminary point of law in that regard is therefore overruled'

#### 2 ri ⁿ hence the suit being an abuse of couft process'

140 The defendant submitted that the plaintiff by his own plaint has failed to prove that he is or has been in possession of the suit land which is a major elementonemustprovebeforeinstitutingaclaimintrespass. The defendant contended that the plaintiff is not the registered proprietor of the suit land as per the certiflcate of title in his trial bundle and that the certificate of title to the suit land is still in the names of Simpson Birungi' The defendant contended that the plaintiff therefore has no right to institute an action ¹⁴⁵ against the defendant.

. L-Z-71\ ,--/\ 6l (' o'Y ## Replv to plaintaff's to pretiminary obiection No. 2 - No locus standi to bring suit

The plaintiff submitted that he bought the suit land from Simpson Birungi on the 24th April, 2006 and upon full payment of the consideration of Seventy Five Million (75,000,000/=) Uganda shillings on the 6th July, 2006. That the said Simpson Birungi handed over to him the relevant documentation for the suit land and possession of the suit land which he has retained to date. 150

#### 155 Decision of court on the above preliminary obiection

From the pleadings, the plaintiff claims he bought the suit land from Simon Birungi and is in the process of transferring the title into his names. He therefore claims that he has a proprietary /equitable interest in the suit land that gives him the locus standi to institute this case. This is a fact that requires him to adduce evidence to that effect and hence cannot be disposed of at this stage.

The preliminary objection in that regard is therefore overruled'

### 3. The suit is barred bY time

165 The defendant submitted that under order 7 rule 11(a) of the civil Procedure Rules, a plaint shall be rejected where the suit is barred by limitation of time.

770 The defendant submitted that the gist of the plaintiff's claim is an action for recovery of land. The defendant contended that basing on the pleadings of the plaintiff and prayers, it was clear that the gist of the suit is for recovery

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of 0.012 hectares of the suit land and which is a claim for title and ownership as opposed to continuous trespass and therefore Section 5 of the Limitation Act aPPlies to it'

775 180 The defendant submitted that this court should find that the suit is barred by limitation as it was instituted outside the statutory limitation provided under Section 5 of the Limitation Act. The defendant further contended that the plaintiff cannot attempt to rely on the principle of constructive possession with a legal title to show that there was an alleged continuous trespass. That the plaintiff has no physical possession of the suit land and he only lays claim on the suit land because he alleges he has a title to it.

The defendant further contended that the plaintiff is an out of possession claimant reassefting his title or ownership and seeking possession of the land through the defendant's premises who has been on the suit land for over ²⁵ years. The defendant cited many cases to buttress her submissions.

### Reply to the oretiminaru obiection bv the plaintiff'

190 The plaintiff submitted that the suit is not barred by time/limitation as claimed by the defendant for the following reasons:-

- (i) That the defendant attempts to re-characterize the plaintiff's claim in the suit as an action for "recovety of land'and yet the plaintiff's pleadings are clear that his action is for " trespass to land'' - 195 (ii) That the plaintiff's claim in the suit is trespass to land (i.e. entry unto the suit land) followed by occupation or exploitation (i.e. construction

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of a wall fence) on the suit land. That this is a continuous tott which is not barred by time/limitation.

(iii) That the said trespass happened on 14th December, 2021 and the instant suit was filed on 20th December,202l and therefore cannot be barred by time/ limitation which is set at twelve years. 200

The plaintiff fufther submitted that according to the contract of sale of land, the full purchase price for the suit land was paid on 6th July, 2006 and that it was on that date that the plaintiff pleads to have taken possession of the suit land and remained thereon to date' 205

The plaintiff contended that he was not seeking recovery of the suit land zto from the defendant. The plaintiff states that he was challenging the defendant's unlawful entry onto the plaintiff's land and/or interference with the plaintiff's quiet enjoyment of his land.

## n o !mrna to b 2ts tim /lim ion

According to the plaint, the plaintiffs claim against the defendant is for ^a declaration that the defendant is in trespass (See Para 3 of the plaint). The plaintiff claims that on the 14th December, 2021, the defendant began to rebuild the perimeter wall on the suit land without the consent/permission of the plaintiff (See Para. 4. g of the plaint).

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It is therefore clear that the plaintiff's cause of action is in trespass to land and not an action for recovery of land. Basing on the pleadings therefore, the suit is not barred by section 5 of the Limitation Act cap. 80 as the defendant submitted. The preliminary objection in that regard is also overruled.

# 4. That the summons accompanYing the plaint extracted on the 21.t dav of Decem r,2O2L was se on Kel ma losh ^a minor and that there was no effective seruice.

Counsel for the defendant submitted that Order 5 rule 1O of the Civil Procedure Rules provides that"wherever it is practicable, seruice shalt be made on the defendant in petsonl unless he or she has an agent empowercd to accept service in which seruice on the agent shall be sufficient'.

counsel for the defendant also cited order 5 rule 13 0f the civi! Procedure Rutes which is to the effect that service of summons must be personal but where it is not possible to serve the defendant service can be done on his agent or adult member of his family.

The defendant submitted that in the instant case the summons were served on the minor and this is considered as ineffective seruice as there was no personal service of summons. That this service is bad and cannot even be cured by Afticle L26(2) (e) of the constitution and hence the plaintiff case should be dismissed.

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## Replv bv plaintiff to the above preliminary obiection - No effective service.

2so The plaintiff submitted that the said preliminary objection was neither pleaded nor did it arise by implication out of the pleadings. The plaintiff contended that there was nothing on the court record to show that service of the summons was effected on the minor. That the submission to that effect was from the bar and was not proved. The plaintiff contended that 2ss he served the defendant by leaving the summons at the house in which the defendant ordinarily resides and which was in accordance with Order 5 rule 15 of the Civi! procedure rules. The plaintiff submitted that the desired result of serving summons is to make a defendant in the suit aware of ^a pending suit against him/her so as to give him/her an opportunity to respond 260 to the suit. That therefore the summons will be effective where the defendant will be aware of the suit in time to file a defence within the time prescribed for filing a defence. counsel for the plaintiff cited many authorities to buttress his submissions.

#### Decision of couft on oreliminary obiection 265

There was no evidence adduced to show that the plaint was served on ^a minor as alleged by the defendant, therefore the allegation to that effect was a submission from the bar'

270 It is also my considered view that the desired result of serving summons is to make a defendant in the suit aware of a pending suit against him or her

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so as to give him or her an opportunity to respond to the suit within the required time. once the desired effect is achieved, the defendant is estopped from claiming that the service was not effective'

It was held in the case of Geoffrey Gatete and another versus William Kyobe - S. C. C. A No. 7 of 2OO5 that effective service of summons means service of summons that produces the desired or intended result.

The service in this case produced the desired effect or intended result by enabling the defendant to be aware of the suit that had been instituted against her and which enabled her to reply in the required timeframe. I therefore find this preliminary objection to that effect superfluous and will be overruled. 280

In the conclusion, all the preliminary objections raised by the defendant are overruled with costs and for the reasons I have already adduced.

HON. JUSTICE JOHN EU JUDGE 291O712022 ES KEITIRIMA