Wakilii

Kabakumba Masiko v Jesse Kasaija and 254 ors (Civil Suit No. 62 of 2017)

High Court · [2022] UGHCCD 154 · 2022 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Preliminary objection raised by defendants at commencement of civil suit for trespass
Decision
Preliminary objections dismissed; matter to proceed to trial on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a registered proprietor holding a certificate of title has legal possession and can sue in trespass regardless of when the alleged unlawful entry occurred, because trespass to land is a continuous tort. An action for trespass is maintainable by a person in possession for each day the unlawful occupation continues. The failure to specify the date when trespass commenced is not fatal where trespass is a continuing tort. Both preliminary objections dismissed.

Outcome

Preliminary objections dismissed; matter to proceed to trial on merits

Facts

The plaintiff, a registered owner of land comprised in FRV 12, Folio 17 at Bujenje Estate, Masindi District, sued 255 defendants for trespass, seeking declarations of ownership, vacant possession, and a permanent injunction. The plaintiff alleged the defendants entered the land without permission of the former controlling authority (Departed Asians Property Custodian Board). At the commencement of hearing, defendants' counsel raised two preliminary objections: first, that the plaint disclosed no cause of action in trespass because the plaintiff was not in possession when the defendants allegedly entered (the land being under DAPCB management at that time); second, that the plaint failed to state when the cause of action arose as required by Order 7 rule 11(e) CPR.

Issues

  1. Whether the plaintiff's plaint discloses a cause of action against the defendants in trespass.
  2. Whether the plaintiff's plaint offends Order 7 rule 11(e) of the Civil Procedure Rules by failing to state when the cause of action arose.

Orders

  • The first preliminary objection is overruled.
  • The second preliminary objection is overruled.
  • Both preliminary objections are dismissed with costs to the plaintiff.
  • The suit is to be heard on its merits.

Rules and key headnotes

Land & Property — Trespass — Locus Standi — Registered Proprietor
A person holding a certificate of title has, by virtue of that title, legal possession and can sue in trespass.
Tort Law — Trespass to Land — Continuing Tort
Trespass to land is a continuous tort. Trespass by way of personal entry is a continuing injury lasting as long as the personal presence of the wrongdoer, giving rise to actions de die in diem so long as it lasts. The unlawful possession is treated as a continuing trespass for which an action lies for each day that passes.
Land & Property — Trespass — Cause of Action — Timing of Unlawful Entry
Even if the alleged unlawful entry occurred before the plaintiff acquired registration, an action of trespass is still maintainable by the plaintiff because the trespass continues from the alleged unlawful entry and stay on the land to date.
Civil Procedure — Pleadings — Cause of Action — Test
A plaint discloses a cause of action if it shows that the plaintiff enjoyed a right, the right has been violated, and the defendant is liable. The question of whether a plaint discloses a cause of action must be determined upon perusal of the plaint alone together with anything attached so as to form part of it.
Civil Procedure — Pleadings — Order 7 Rule 11(e) — Date of Cause of Action — Continuing Tort
Where trespass to land is a continuous tort and there are many defendants who may have entered onto the land at various times and periods, the date when the cause of action arose is implied in trespass itself and it is not fatal for the plaintiff's failure to have indicated the date when the trespass commenced as required by Order 7 rule 11 CPR.

Legislation cited (1)

  • Civil Procedure Rules O.7 r.11(e)

Cases cited (8)

  • Odyeki & Anor v Yokonani & 4 Ors (HCCA No. 9 of 2017)
  • Auto Garage v Motokov No.3 [1971] EA 514
  • Kebirungi v Road Trainers Ltd & 2 Ors [2008] HCB 72
  • Justine E.M.N Lutaaya v Stirling Civil Engineering Co. Ltd (SCCA No. 11 of 2002)
  • Moya Drift Farm v Theuri (1973) EA 114
  • Winterbourne Vs Morgan (1809),1.1 East 395 at 405,103 E.R.1056
  • Erisafani v Wilberforce Kuluse (1994) 111 KALR 10
  • Konskier v Goodman Ltd [1928] 1 KB 421

Full judgment

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

Kabakumba Masiko v Jesse Kasaija and 254 ors (Civil Suit No. 62 of 2017) [2022] UGHCCD 154 (26 August 2022)
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.