Wakilii

Kakooza v Nalweyiso (Civil Suit No. 1213 of 2021)

High Court · [2022] UGHCLD 131 · 2022 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objections raised by defendant in a civil suit for trespass to land
Decision
Preliminary objections dismissed; main suit to proceed to trial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court overruled all four preliminary objections raised by the defendant. The court held that the plaint disclosed a cause of action in trespass to land; that the plaintiff's locus standi was a factual matter requiring evidence at trial; that the suit was not barred by limitation as it concerned continuous trespass, not recovery of land; and that service of summons was effective as it achieved the intended result of making the defendant aware of the suit in time to file a defence.

Outcome

Preliminary objections dismissed; main suit to proceed to trial

Facts

The plaintiff instituted a suit on 20 December 2021 claiming trespass to land comprised in LRV Plot 329 Block 268 Naziba Lubowa, Wakiso District, measuring approximately 0.089 hectares. The plaintiff alleged he purchased the suit land from Simpson Birungi on 24 April 2006, paid the full consideration of UGX 75,000,000 on 6 July 2006, and took possession thereafter. The plaintiff claimed that on 14 December 2021, the defendant constructed a perimeter wall on the suit land without his consent. The defendant filed a written statement of defence on 13 January 2022 and raised four preliminary objections: that the plaint disclosed no cause of action; that the plaintiff lacked locus standi; that the suit was barred by limitation; and that service of summons was ineffective as it was served on a minor.

Issues

  1. Whether the plaint discloses a cause of action against the defendant.
  2. Whether the plaintiff has locus standi to bring the suit.
  3. Whether the suit is barred by limitation of time.
  4. Whether there was effective service of summons on the defendant.

Orders

  • All preliminary objections raised by the defendant are overruled.
  • Costs of the preliminary objections awarded to the plaintiff.

Rules and key headnotes

Civil Procedure — Preliminary Objections — Disclosure of Cause of Action — Material Facts
A preliminary objection that a plaint discloses no cause of action must be determined solely on the basis of the material facts pleaded in the plaint and its annexures. It is not a requirement that all evidence be adduced in the pleadings. Where the objection raises facts that require proof at trial, it does not constitute a pure point of law and cannot be disposed of at the preliminary stage.
Civil Procedure — Preliminary Objections — Nature and Scope
A preliminary objection consists of a point of law which has been pleaded or which arises by clear implication out of the pleadings. It raises a pure point of law and cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Land & Property — Trespass — Limitation — Continuous Trespass Distinguished from Recovery of Land
A claim for trespass to land based on continuous trespass is not barred by section 5 of the Limitation Act. Where a plaintiff claims that the defendant unlawfully entered and occupied the plaintiff's land, and the trespass is ongoing, the action is for trespass and not for recovery of land, and the twelve-year limitation period does not apply.
Civil Procedure — Service of Process — Effective Service — Desired Result Test
Effective service of summons means service that produces the desired or intended result. The desired result is to make the defendant aware of the pending suit so as to give the defendant an opportunity to respond within the prescribed time. Once the desired effect is achieved and the defendant files a defence within the required timeframe, the defendant is estopped from claiming that service was ineffective.

Legislation cited (9)

Cases cited (5)

  • Kapeka Coffee Works Ltd v NPART (Court of Appeal Civil Appeal No. 3 of 2000)
  • Tororo Cement Co Ltd v Frukina International Limited (Supreme Court Civil Appeal No. 2 of 2002)
  • E.M.N Lutaya v Sterling Civil Engineering Co Ltd (Supreme Court Civil Appeal No. 11 of 2002)
  • Mukisa Biscuit Manufacturing Co Limited v West End Distributors Ltd [1969] EA 697
  • Geoffrey Gatete and Another v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)

Full judgment

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

Kakooza_v_Nalweyiso_(Civil_Suit_No._1213_of_2021)_[2022]_UGHCLD_131_(29_July_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.