Wakilii

Benard Miltary v Waswa Oritibo (Civil Appeal No. 2251 of 2016)

High Court · [2021] UGHCLD 158 · 2021 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court judgment on trespass and eviction
Decision
Appeal dismissed with costs to the respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the appeal, holding that dismissal for want of prosecution did not make the matter res judicata where it was properly set aside under Order 9 rule 23, that trespass to land is a continuing tort not subject to limitation in the strict sense, and that the Land Act provisions on lawful and bonafide occupants did not apply to a dispute between parties both claiming kibanja interests.

Outcome

Appeal dismissed with costs to the respondent

Facts

In 2000, the appellant entered the respondent's kibanja and constructed a house without consent. The respondent protested and referred the matter to elders, but the appellant refused to stop construction. The respondent sued for eviction, damages, mesne profits and costs in the Chief Magistrate's Court. The suit was dismissed for want of prosecution on 5 September 2011, but the dismissal was set aside by another Chief Magistrate on 16 January 2012 under Order 9 rule 23. After hearing the matter inter partes, the trial magistrate found for the respondent. The appellant appealed on three grounds: res judicata and lack of jurisdiction, limitation, and disregard of the Land Act provisions.

Issues

  1. Whether the trial magistrate erred in handling the case when it was allegedly res judicata and lacked jurisdiction
  2. Whether the trial magistrate erred in allowing proceedings when the case was allegedly time barred
  3. Whether the trial magistrate erred in disregarding provisions of the Land Act 1998

Orders

  • Appeal dismissed.
  • Costs of the appeal awarded to the respondent.

Rules and key headnotes

Civil Procedure — Res Judicata — Dismissal for Want of Prosecution — Setting Aside Under Order 9 Rule 23
Where a suit is dismissed for want of prosecution, the dismissal does not constitute a final determination on the merits such that the doctrine of res judicata applies, and the proper remedy is an application to set aside the dismissal under Order 9 rule 23 of the Civil Procedure Rules.
Civil Procedure — Inherent Jurisdiction — Power to Set Aside Dismissal by Different Magistrate of Equal Rank
Where a Chief Magistrate who dismissed a suit has been transferred, another Chief Magistrate has jurisdiction under the inherent powers of the court in section 98 of the Civil Procedure Act to set aside the dismissal, as magistrates of equal rank possess the same jurisdictional powers.
Land & Property — Trespass to Land — Continuing Tort — Limitation
Trespass to land is a continuing tort for which an action lies for each day that passes, and the law of limitation does not apply to it in the strict sense where the unlawful occupation is continuous up to the time of filing suit.

Legislation cited (10)

Cases cited (7)

  • Kifamunte Henry v Uganda (SCCA No. 10 of 1997)
  • Fr Narsensio Begumisa and 3 Others v Eric Kibenaga (SCCA No. 17 of 2002)
  • Posiano Semakula V. Susana Magala and others, 1993 KALR P.213
  • General Industries (U) Ltd v Non-Performing Assets Recovery Trust and 3 Others (Civil Appeal No. 51 of 2007)
  • Rawal vs Mombasa Hardware Ltd [1968] EA 392
  • Justine EMN Lutaaya v Stirling Civil Engineering Company Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Amina Aroga v Haji Muhammad Anule (Civil Appeal No. 01 of 2018)

Full judgment

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

Benard_Miltary_v_Waswa_Oritibo_(Civil_Appeal_No._2251_of_2016)_[2021]_UGHCLD_158_(4_November_2021)
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.