Kisitu v Kigozi (Civil Appeal 62 of 2018) [2024] UGHCLD 242 (21 October 2024)

# 5 **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION CIVIL APPEAL NO. 62 OF 2018 GODFREY KISITU ::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT** 10 **VERSUS GASTER KIGOZI :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS BEFORE: HON. LADY JUSTICE IMMACULATE BUSINGYE BYARUHANGA**

## **JUDGMENT**

- 15 This appeal was filed by Godfrey Kisitu *(hereinafter referred to as "the appellant")* challenging the Ruling on the preliminary objection of Her Worship Mulodo Mastula, Magistrate Grade One of the Chief Magistrate Court of Entebbe which was delivered on 19th April, 2018. The Trial Court decided the preliminary point of law on limitation in favour of the late defendant (Samuel Musaazi) who is now being - 20 represented by his son Gaster Kigozi now (*hereinafter referred to as 'the respondent).*

The Trial Magistrate dismissed the suit on two preliminary points of law on grounds that the suit was caught up by the Limitation Act and that the suit was frivolous and vexatious.

#### 25 *Background*

The appellant/ plaintiff instituted Civil Suit No. 104 of 2016 against the respondent/ defendant through an amended plaint at the Chief Magistrate Court of Entebbe on 20th February 2018 seeking for a declaration that the suit kibanja belongs to the plaintiff, a declaration that the respondent is a trespasser on the appellant's kibanja

- 30 situate at Nkumba Central Katabi Entebbe, an eviction order and/or an order of vacant possession, an order for a permanent injunction against the respondent restraining him or his agents or servants or employees from trespassing on the suit land, general damages for trespass, costs of the suit and any other relief court deems fit. In the facts constituting the cause of action, the appellant contended that the suit - 35 land has been his land after paying a kanzu to the registered owner in the 1960's. The appellant further contended that he had been in lawful occupation of the suit kibanja for over 30 years and that in 1982 when his wife (Nabankema Jane) fell sick, they decided to relocate to Nkumba Central Zone for easier treatment until when she passed on in 2005. According to the amended plaint, the appellant pleaded that the 40 respondent used this chance to demolish the appellant's matrimonial house on the suit kibanja claiming ownership of the same.

The appellant further pleaded that in the year 2005, conflicts emerged between the appellant and the respondent his biological son, where the respondent claimed that the suit kibanja belonged to his late mother and formed part of her estate. The 45 appellant pleaded that he had acquired other plots neigbouring the suit kibanja and he had sold a piece on 31st January, 2012 to a one Sensukusa Patrick. Appellant claimed that the respondent conspired with his two sisters with an intent to deprive the him of his by rushing to the Administrator General in November 2016 to claim the suit property was part of their mother's estate in letter of 24th November 2016. 50 The appellant contended that the contention arose as a result of jealousy caused by

him giving part of the plot to his grandson Derrison Nteza.

In reply, the respondent filed an amended written statement of defence filed in court on 21st February 2018 wherein, he averred that the suit land belongs to the estate of his Late mother Nabankema Jane Kitiibwa who died intestate on the 24th day of

55 February 2005. The respondent also contended that the late Nabankema acquired the


suit land in 1960s whereon she constructed a permanent house which she occupied with her relatives until 1987 when she relocated to Nkumba Central Zone to cohabit with the plaintiff leaving the suit kibanja to the defendant.

The respondent further contended that when he grew up, he developed clashes with 60 his father and in a bid to resolve the issues, the late Nabankema gave the suit kibanja and the house thereon to him as a gift inter vivos. The respondent equally contended that he occupied and enjoyed quiet possession of the same since 1987 till 2016 where he married his wife and was blessed with children all of whom have continued to occupy the same until the late Nabankema died and then the appellant started selling 65 part of the suit kibanja.

The respondent averred that his siblings and him contested their father's/ appellant's actions and they were advised to apply for Letters of Administration (LOA) so that they could protect their interests. The respondents pleaded that they obtained LOA in respect of his mother's estate with his other two siblings. A copy of the grant was 70 attached to the written statement of defence.

During scheduling, counsel for the respondent (the late Musaazi Samuel), raised preliminary points of law to the effect that the plaintiff the appellant's suit was caught up by Limitation since his cause of action arose in the 1980's and that he sat on his right, secondly, counsel argued that the appellant had no no locus standi to 75 bring this suit where property in dispute was under Administration without the consent of the Administrators and thirdly, that the cause of action of trespass is frivolous and vexatious as the appellant purported to call his son a trespasser.

On the 19th day of April 2018, the Trial Magistrate Grade One, Her Worship Mulondo Mastula entertained the above stated preliminary points of law and in her 80 Ruling she held that the appellant sat on his rights and as such his claim was caught

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up by the Limitation period. She also held that the suit is frivolous and vexatious and she proceeded to dismiss the same.

Being dissatisfied with the Trial Magistrate's Ruling, the plaintiff/ appellant/ filed Civil Appeal No. 62 of 2018 in this court on the following grounds;

- 85 *1. The learned trial Magistrate erred in law and fact in dismissing the suit on a preliminary objection that the suit was caught up by the Limitation Act without properly considering the time in which the appellant became aggrieved and the time within which he filed Civil Suit No. 104 of 2016.* - *2. The learned Trial Magistrate erred in law and fact in dismissing the suit* 90 *on a preliminary objection that the suit was frivolous and vexatious since the defendant was born and raised on the suit land thus cannot be a trespasser on the suit land.* - *3. The learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record thereby reaching a wrong* 95 *decision that;* - *a) The suit was caught up by the Limitation Act, yet the appellant became aggrieved by the late Musaazi Samuel's actions after the death of his wife in 2005 and he instituted the suit in 2016.* - *b) The appellant became aggrieved in 1982 yet this was the year in* 100 *which the appellant relocated with his wife to Nkumba, thereby wrongly concluding that the suit was time barred.* - *c) The appellant sat on his rights yet he has at all material times expressed his proprietary rights by selling parts of the suit property and the respondent has always been aware and part of the sale* 105 *transactions as a witness.*


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- *d) That the appellant does not have a cause of action in trespass against the respondent, and thus the suit was frivolous and vexatious; failing to consider the appellant's argument that the respondent being born on the suit land does not in any way confer* 110 *him any proprietary interest in the suit land.* - *e) Dismissing Civil Suit No. 104 of 2016 without hearing the merits of the cause.* - *f) Thee Learned Trial Magistrate erred in law and fact in ignoring to adjudicate and pronounce herself on the counterclaim that was* 115 *filled by the late Musaazi Samuel claiming ownership of the suit, thereby reaching a conclusion that the suit land belongs to the late Musaazi Samuel.*

In 2021, the appellant filed an application vide HCMA 835 of 2021 praying that court appoints the respondent's sister Nakimuli Dutchess, and the son of the late 120 Samuel Musaazi to be appointed as the regal representatives of the deceased respondnet for the purpose of pursuing the instant Civil Appeal No. 62 of 2018. On 26th March 2024 at 4:58 pm, this court granted Gaster Kigozi Letters of Administration ad litem only for the purpose of defending the appeal. Later on, this court ordered that Civil Appeal No. 62 of 2018 be heard and determined ex-parte 125 against the administrator of the late Samuel Musazi under Order 9 rules 10 and 11and Order 43 rule 14 (2) of the Civil Procedure Rules.

#### *Representation*

The appellant was represented by Counsel Nalule Mariam while the respondent was unrepresented and the matter proceeded exparte.

#### *Duty of the 1st* 130 *Appellant Court*

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This being a first appeal from a decision of a Magistrate Grade One to the High Court, it is crucial to take into account the role of a first appellate court. This issue was properly articulated in the case of **Selle and Anor versus Associated Motor Boat Limited and ors (1968) EA 123 at page 123,** Justice Clement De Lestang 135 stated that the role of the first appellant Court as follows;

> "An appeal …. is by way of retrial … the Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in respect."

- 140 The duty of this Court as a first Appellate Court is to re-evaluate the evidence adduced at Trial and subject it to fresh scrutiny, while weighing the conflicting evidence and drawing its own conclusions and inferences from it. However, the first appellate has to bear in mind that it has neither seen nor heard the witnesses and should therefore make due allowance in that respect. **See** *Fredrick Zaabwe versus* - 145 *Orient Bank & 5 ors S. C. C. A No. 4 of 2006 and Banco Arabe Espanol versus Bank of Uganda S. C. C. A No. 8 of 1998.*

This Court has the duty to re-evaluate the evidence to avoid a miscarriage of justice as it mindfully arrives at its own conclusion. I will bear these principles in mind as I resolve the grounds of appeal in this case.

150 As required by this Court, counsel for the appellant filed written submission and I shall put these submissions into consideration before reaching my decision.

#### *Parties' submissions*

Counsel for the appellant made her submissions on grounds 1 and 3 concurrently on grounds that the arguments on one inevitably spill into another. Counsel for the 155 appellant submitted that at page 132 of the record of appeal, it was the finding of the

trial Magistrate that the appellant was sitting on his rights and as such the suit was caught up by the Limitation, however, the trial Magistrate disregarded the appellant's submission that the matter was not time barred since the plaintiff was aggrieved by the actions of the defendant in 2005 after the death of his wife.

- 160 Counsel further submitted that the appellant first felt aggrieved by the late Musaazi's actions in 2014 when the latter demolished the appellant's matrimonial house and the other surrounding properties. It is counsel's argument that he felt aggrieved after the death of his wife in 2005 less than 12 years and thus the appellant's action was still within the approved time as per Section 5 of the Limitation Act. - 165 On the issue of failure to adjudicate the counterclaim, counsel for the appellant submitted that the trial Magistrate ought to have fixed the counterclaim for hearing despite the ruling issued against the appellant regarding the preliminary objection. Counsel submitted that according to Order 8 rules 2,7 and 8 of the Civil Procedure Rules, a counterclaim is substantially a cross action and not merely a defence to the - 170 plaintiff's action. While relying on the case of **JafferBrothers Limited versus Mohammed Magid Bagalaliwo & 2 ors CA No. 13 of 1997,** counsel argued that the dismissal of main suit does not automatically abate a counterclaim and that the same being a cross action should be heard on its merits. Counsel concluded that the trial Magistrate's failure to adjudicate the counterclaim on its merits was unjudicial 175 and a clear material prejudice that was caused to the appellant since the dismissal left a conclusion that the suit kibanja was owned by the Late Musaazi Samuel.

In regards to ground 2, counsel for the appellant submitted that a plaint may be rejected by court if it does not disclose a cause of action. Counsel argued that in order to prove there is a cause of action, the plaint must show that the plaintiff 180 enjoyed a right which was violated by the defendant. It is counsel for the appellant's

argument that at all material times, the appellant was the lawful owner of the suit kibanja which he lawfully acquired from a one Musebi Mpagi the 1960s.

Counsel further submitted that the late Musaazi bore no genuine interest in the suit land and that the refusal to vacate the same greatly inconvenienced the appellant's 185 use of his kibanja. Counsel argued that although the late Musaazi was raised on the suit land, the same did not confer any proprietary rights to the appellant or even grant the appellant the rights to destroy the appellant's matrimonial house.

Counsel submitted that this action alone was enough for the appellant to have a cause of action. Counsel also argued that the appellant's relocation to Nkumba did not

190 imply that former had lost his interest in the suit land. Counsel submitted that for these reasons, the trial Magistrate erred in law and fact when she ruled that the appellant's suit was frivolous and vexatious.

#### *Decision*

I shall adopt counsel for the appellant's order of resolution of issues.

#### 195

## **Grounds 1 and 3**

*That the learned trial Magistrate erred in law and fact in dismissing the suit on a preliminary objection that the suit was caught up by the Limitation Act without properly considering the time in which the appellant became aggrieved and the time* 200 *within which he filed Civil Suit No. 104 of 2016.*

#### *And*

*That the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record thereby reaching a wrong decision*

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According to paragraphs 2 and 3 of the amended written statement of defence, the 205 late Samuel Musaazi (defendant in the trial court case Civil Suit No. 104 of 2016) raised two preliminary points of law. I shall re-evaluate the evidence basing of the said preliminary objections as this appeal lies from the trial Magistrate's Ruling on the said points of law. My decision on these points of law shall dispose of grounds one and three of this appeal.

210 *Point of law No.1: The late defendant raised a preliminary point of law that the suit is caught up by limitation and shall pray that the same be struck out with costs.*

It is the appellant's contention that his matter is not time barred as the appellant was aggrieved by the late Musaazi Samuel's actions after the death of the former's wife in 2004. On the other hand, it was the defendant's contention in the trial suit that the

215 plaintiff's claim was barred by limitation because the cause of action arose in the 1980s.

**Section 5 of the Limitation Act, Cap 290 (Revised Laws of Uganda, 2023)** stipulates as follows;

## 220 *Limitation of actions to recover land*

*'No action shall be brought by any person to recover any land after the expiration of twelve years from the date on which the right of action accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person.'*

225 On close scrutiny of the pleadings, the appellant filed in the trial court Civil Suit No. 104 of 2016 on 15th December 2016 and according to paragraph 4 (c) of the amended plaint, the plaintiff contended that he peacefully lived on the suit land with his late

 wife Nabankema Jane wherein he bore his six children including the late Samuel Musaazi (the late defendant/ respondent).

230 Furthermore, in paragraph 4 (d)-(f) of the amended plaint captured verbatim the plaintiff contended,

*"d. 1n 1982, when the plaintiff 's wife got sick, the plaintiff decided that they relocated to Nkumba Central zone for easier treatment, where after, his wife met her death in 2004 and since then, it is where he has* 235 *been staying to date.*

*"e. Upon the plaintiff's relocation with his wife to Nkumba, the defendant used it as an opportunity and unlawfully entered upon the suit land without the consent of the plaintiff, demolished the plaintiff's matrimonial home and all other properties claiming ownership of the* 240 *same whereas not.*

> *"f. Sometime in the year 2004, conflicts emerged between the plaintiff and the defendant, his biological son, where the defendant claimed that the suit land belonged to his late mother and therefore former part of her estate." (emphasis on the underlined)*

245 From the above extract and the appellant's plaint in Civil Suit No. 104 of 2016, it is clear that the cause of action is trespass on land. It was counsel for the appellant's submission that upon the appellant's relocation from the suit land, the late Musaazi entered upon the suit land which the appellant ignored since the latter was his son. Counsel further submitted that Musaazi started his claims of ownership of the suit 250 land in 2005 and in 2014 demolished the plaintiff's matrimonial house at which point the plaintiff/ appellant suffered damages and instituted the trial suit land.

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Counsel concluded that the appellant felt aggrieved by the late Musaazi's actions after 2005 when the appellant's wife died and from the time the main suit was instituted in 2016 is less than 12 years. I find counsel for the appellant's submissions

255 to be misleading.

It was my observation from the above extracts of the plaint that the late Musazi entered the suit land in the 1980s with the knowledge of the appellant, however, the appellant ignored him as the former was his biological son as was admitted in paragraph 4 (c) of the amended plaint.

260 The plaintiff's cause of action in the main suit was trespass to land. The term '*trespass'* has been defined in a wealth of authorities. In the landmark case of **Justine E M N Lutaaya versus Sterling; Civil Eng. Appeal No.11 of 2002***; it was held that;*

*"Trespass to land occurs when a person makes an unauthorized entry upon* 265 *another's land and thereby interfering with another's person lawful possession of the land".*

According to the facts before court, the alleged trespass was occasioned as soon as the late Musaazi entered and settled on the suit land in the 1980s which the appellant ignored and not after the alleged demolition of the matrimonial house in 2014.

- 270 Therefore, I agree with the trial Magistrate that the appellant sat on his rights. The appellant never presented any sufficient reason that estopped him from exercising his rights to the suit land in the 1980s when his son the late Musaazi first settled on the suit land, but rather he ignored him and only woke up in 2014 after the alleged demolition of the matrimonial house. - 275 The provisions **Section 5 of the Limitation Act (supra)** are very strict and couched in mandatory terms. In the case of **Katakuwange Makooba Fred versus Ikanza**


**Muhammad & Anor HCCA No. 75 of 2021,** Court cited the case of **Departed Asian Property Custodian Board versus Dr. J. M Masambis Court of Appeal Civil Appeal No. 4 of 2004,** wherein the court emphasized that, *'the Court of Appeal*

280 *and the Supreme Court have held in many cases that the enforcement of provisions of a statute is mandatory.*

According to the Trial Magistrate's Ruling, the appellant's trial suit was dismissed for being barred by the Limitation Act and since the plaintiff/ appellant's claim was recovery of the suit kibanja, Section 5 of the Limitation Act is applicable. In the trial 285 suit, the appellant sought vacant possession. As such his claim is for possession of the suit kibanja, hence for all intents and purposes, the trial suit was an action for recovery of a kibanja which the appellant contended had been deprived from him by his son the late Musaazi Samuel (the late defendant).

In the case of **Hope Rwaguma versus Jingo Livingstone Mukasa Civil Suit No.**

- 290 **508 of 2012,** court held that, *"At the expiration of the period of twelve years prescribed under section 5 for any person to bring an action to recover land…of that person to the land shall be extinguished".* - I am persuaded by Hon. Justice Dr. Winifred N Nabisibde's holding in **Katakuwange Makooba Fred versus Ikanza Muhammed (supra),** where she 295 cited the above holding in **Hope Rwaguma versus Jingo Livingstone Mukasa (supra)** and concluded that, "… *the above case makes it clear that as rule, limitation not only cuts off the owner's right to bring an action for recovery of the sui land that has been in adverse possession for over twelve years but also the adverse possessor is vested with title thereto".* - 300 In the instant case, I am convinced that the appellant took a willful decision not to exercise his claim of right over the suit land in the 1980s when the late Musaazi first

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settled on the suit land and only arose to make the said claim in 2016, over thirty years later. **Order 7 rule 11 (d) of the Civil Procedure Rules,** provides that the plaint shall be rejected where the suit appears from the statement in the plaint to be 305 barred by any law. Having found above that the Civil Suit No. 104 of 2016 was barred by the statute of limitation, I uphold the trial Magistrate's decision to dismiss the suit. Therefore, these grounds fail.

## **Ground No. 2**

## *That the learned Trial Magistrate erred in law and fact in dismissing the suit on a*

310 *preliminary objection that the suit was frivolous and vexatious since the defendant was born and raised on the suit land thus cannot be a trespasser on the suit land.*

In paragraph 3 of the amended written statement of defence, the defendant also raised another preliminary objection that the suit disclosed no cause of action against the defednat since the defendant was born and settled on the suit land and as such 315 could not be a trespasser.

**Order 7 rule 11 (e) (supra)** also provide that a plaint shall be rejected where it does not disclose a cause of action or where the suit is shown by the plaint to be frivolous or vexatious respectively.

The Black's law Dictionary 8th Edition at page 629 defines the term *frivolous* as 320 lacking legal basis or legal merit, not serious and not reasonably purposeful. The term *vexatious suit* is also defined as a law suit instituted maliciously and without good cause. In the case of **R vs. Ajit Singh s/o Vir Sing [1957] EA 822,** *frivolous* was defined to connote,

"*the absence of seriousness or the lack of validity or legitimacy. A* 325 *frivolous pleading would also be vexatious in that its effect would be counterproductive. Secondly, the case is also vexatious i.e. oppressive*


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*to the opposing party and it obstructs the court from gaining a full understanding of the issues and a party acts with an ulterior motive. The action is vexatious if the party bringing it is not acting bona fide* 330 *and merely wishes to annoy or embarrass the opponent or when it is not calculated to lead to any practical result".*

Similarly, in the matter of **John Garuga Musinguzi & Anor v Dr. Chris Baryomunsi & Anor HCMC No. 817 of 2016,** court defined frivolous and vexatious claims thus:

335 *"A frivolous claim or complaint is one that has no serious purpose or value. Often a "frivolous" claim is one about a matter so trivial or one so meritless on its face that investigations would be disproportionate in terms of time and cost. The implication is that the claim has not been brought in good faith because it is obvious that it has no reasonable* 340 *prospect of success and/or it is not a reasonable thing to spend time complaining about. A "vexatious" claim or complaint is one (or a series of many) that is specifically being pursued to simply harass, annoy or cause financial cost to their recipient".*

Having perused the pleadings, the appellant's cause of action was trespass. 345 Furthermore, at pages 2 and 3 of the trial Magistrate's ruling, it was the finding of Her Worship Mastula that the plaintiff (appellant in this case) had locus standi to prosecute the matter.

The trial Magistrate ruled that the suit was frivolous on grounds that the late Musaazi entered the suit kibanja with the consent of the appellant since the latter was his 350 biological father and upon relocation, the late Musaazi was left occupying the suit

kibanja with the consent of his father (the appellant). None of the parties adduced sufficient evidence to prove this fact.

This notwithstanding, the cause of action was time barred and as such the claim of trespass and recovery of land cannot be sustained. A cause of action is disclosed 355 when it is shown that the plaintiff had a right and the right was violated resulting into damages and the defendant is liable. In the decision of **Tororo Cement Co. Ltd versus Frokina International Ltd S. C. Civil Appeal No. 2 of 2001,** Justice Oder (JSC) stated that,

"*A cause of action means every fact held that which is material to be proved* 360 *to enable the plaintiff to succeed or every fact which, if denied, the plaintiff must prove in order to obtain judgment. The Hon. Justice went ahead to say that …. "what is important in considering whether a cause of action is revealed by the pleadings are the questions whether a right exists and whether it has been violated. The guidelines were stated by the Court of Appeal for* 365 *East Africa in Auto Garage versus Motokov no.3 1971 EA 514. They are;*

- *a. The plaint must show that the plaintiff enjoyed a right.* - *b. That right has been violated; and* - *c. That the defendant is liable.*

Justice Oder went ahead to suggest that if all three elements are present, then cause 370 of action is disclosed and any defect or omission can be put right by amendment.

Whereas, the appellant may have had locus standi as was ruled by the trial Magistrate, their cause of action was time barred and as such cannot be sustained hence the appellant's claim was meritless. Therefore, I find that the appellant did not have any valid cause of action and as such I am convinced that the Civil Suit No.

375 104 of 2016 is frivolous and vexatious.



*Ground 3 (f): That the Learned Trial Magistrate erred in law and fact in ignoring to adjudicate and pronounce herself on the counterclaim that was filled by the late Musaazi Samuel claiming ownership of the suit, thereby reaching a conclusion that the suit land belongs to the late Musaazi Samuel.*

- 380 According to the record of appeal, the late defendant counterclaimed against the appellant and 16 (sixteen) other counter-defendants. However, when the matter was main suit was dismissed, the counterclaim was equally not heard. **Order 8 rule 2 of the Civil Procedure Rules** states that a counterclaim is a cross action. - **The Black's Law Dictionary 8th edition** defined a counterclaim as a claim for relief 385 asserted against an opposing party after an original claim has been made. Counterclaims arise under **Order 8 of the Civil Procedure Rules**. **Order 8 rule 2(1)** provides that.

*"A Defendant in any action may set off, or set up by way of counterclaim, against the claims of the Plaintiff, any right or claim,* 390 *whether the set-off or counterclaim sounds in damages or not, and the set-off or counterclaim shall have the same effect as a cross action, to enable the court to pronounce a final judgment in the same action, both on the original and the cross-claim".*

Furthermore, the law provides for instances by which a counterclaim is introduced 395 in a suit. **Order 8 rule 7 of the Civil Procedure Rules** provides that where any defendant seeks to rely upon any grounds as supporting a right of counterclaim, he or she shall, in his or her statement or defence, state specifically that he or she does so by way of counterclaim. The overriding factor in counterclaims or setoff is that the Plaintiff must be part of the Defendants in the counterclaim. In the matter of 400 **Suuta Proscovia v. Mugabane David & Anor; Civil Appeal No. 0123 of 2016,**

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the court held that the rules on counterclaim envision that the counterclaim is against a Plaintiff and any other 3rd Party that may be added.

In the said counterclaim, the counterclaimant's cause of action against the counterdefendants was fraud. According to the record of court, the trial suit was dismissed 405 on a preliminary point of law, however, the counterclaim was not heard.

**Order 8 rule 13** states that:

*"If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued, or dismissed, the counterclaim the counter-claim may nevertheless be proceeded with".*

410 This rule gives court discretion to proceed with the defendant's counter-claim if the plaintiff's suit is dismissed. In the matter of **Kampala City Council and Anor versus James Bwogi & Sons Enterprise Ltd Court of Appeal Civil Appeal No. 52 of 2009,** *the Court of Appeal emphasized that it is a principle of law that when a defendant sets up a counterclaim and the plaintiff's suit is discontinued or dismissed,* 415 *the counterclaim is not affected because it is a cross action.*

In the instant case, the trial Magistrate never set down the counterclaim for hearing. According to the record of court, the resolution of the counterclaim would have determined the true ownership of the suit kibanja. However, in her ruling the trial magistrate did not dismiss the counter claim and the same should be set down for 420 hearing by the trial court.

In conclusion, I order as follows;

*1. The Trial Magistrate's Ruling on the preliminary objections in Civil Suit No. 104 of 2016 is hereby upheld.*


- *2. The main suit vide Civil Suit No. 104 of 2016 be returned to the Trial Court* 425 *(Entebbe Chief Magistrates Court) for the trial of the counterclaim.* - *3. Each party bears its own costs.*

## **I SO ORDER**

This Judgment was delivered at High Court Land Division via ECCMIS this 21st day of October 2024.

**Immaculate Busingye Byaruhanga Judge**