Wakilii

Samuel M. Kizito v Nakasongola District Local Government & Anor (Civil Suit No. 420 of 2008 ) (Civil Suit No. 420 of 2008)

High Court · [2009] UGHC 115 · 2009 Suit Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for trespass and encroachment on land; preliminary objection raised by defendants regarding service of process and statutory notice
Decision
Suit dismissed in its entirety; earlier judgment and decree set aside as irregular

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a suit against the Attorney General commenced without prior service of statutory notice under section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act is a nullity. Where a suit is jointly filed against two defendants and the suit against one is a nullity, the entire suit cannot survive against the remaining defendant. The court further held that the plaintiff's cause of action for trespass was time-barred under section 3(1), which requires actions in tort against government or local authorities to be brought within two years. The suit was dismissed and the earlier judgment and decree set aside.

Outcome

Suit dismissed in its entirety; earlier judgment and decree set aside as irregular

Facts

The plaintiff Samuel M. Kizito sued Nakasongola District Local Government and the Attorney General for trespass and encroachment on his registered land, claiming damages, mesne profits, and a permanent injunction. The defendants did not file a defence. On 9th March 2009, the Deputy Registrar entered judgment against the 1st defendant under Order 9 rule 6 for failure to file defence, and on 20th April 2009 issued a decree awarding the plaintiff vacant possession, permanent injunction, special damages of UGX 10,000,000, mesne profits of UGX 51,000,000, interest at 30% per annum from 2004, and costs. On 16th October 2009, when the matter came up for conferencing, defendants raised a preliminary objection that they had not been served with court process and that no statutory notice had been served on the Attorney General before suit was filed. Counsel for the plaintiff conceded that the statutory notice had not been served on the 2nd defendant. The court noted that the cause of action arose in 2004, more than four years before the suit was filed in 2008.

Issues

  1. Whether the suit against the Attorney General was validly instituted without prior service of a statutory notice as required by section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act.
  2. Whether a suit jointly brought against two defendants can survive against one defendant when the suit against the other defendant is declared a nullity.
  3. Whether the plaintiff's cause of action was time-barred under section 3(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act.

Orders

  • Suit dismissed with costs against the plaintiff.
  • The judgment and decree previously entered against the 1st defendant by the Deputy Registrar on 20th April 2009 are set aside as nullities.

Rules and key headnotes

Civil Procedure — Statutory Notice — Requirement under section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act — Effect of failure to serve notice on Attorney General
A statutory notice under section 2 of the Civil Procedure and Limitation (Miscellaneous Provisions) Act is a legal requirement before instituting a suit against the Attorney General. Where such notice is not served, the suit against the Attorney General is a nullity. Once a nullity, always a nullity.
Civil Procedure — Joint Suits — Effect of nullity against one defendant on suit against co-defendant
Where a suit is jointly brought against two or more parties and the suit against one defendant is declared a nullity, such suit cannot survive as against the remaining party. This is to be distinguished from a cause of action filed jointly against multiple parties, which can survive against remaining parties when struck out or withdrawn as against some of them.
Civil Procedure — Limitation of Actions — Actions in tort against government and local authorities — Two-year limitation period
Under section 3(1) of the Civil Procedure and Limitation (Miscellaneous Provisions) Act, no action founded on tort shall be brought against the government or a local authority after the expiration of two years from the date on which the cause of action arose. An action brought outside this period is time-barred.
Civil Procedure — Judgment in Default — Setting aside judgment irregularly obtained
Where judgment and decree are granted by a Deputy Registrar in a suit that is fundamentally defective and time-barred, such judgment and decree are irregularly granted and are nullities that may be set aside.

Legislation cited (3)

  • Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap.72 s.2
  • Civil Procedure and Limitation (Miscellaneous Provisions) Act Cap.72 s.3(1)
  • Civil Procedure Rules Order 9 rule 6

Full judgment

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Samuel M. Kizito v Nakasongola District Local Government & Anor (Civil Suit No. 420 of 2008 ) (Civil Suit No. 420 of 2008) [2009] UGHC 115 (21 October 2009)
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.