Lusasizi & Others v Male (Miscellaneous Application 235 of 2024) [2025] UGHC 286 (9 May 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA **MISCELLANEOUS APPLICATION NO. 0235 OF 2024** (ARISING OUT OF HC CIVIL SUIT NO. 0103 OF 2024)

#### 1. LUSASIZI JOHN

- 2. VIOLET KAMATENESI **}::::::::::::::::::::::::::::::::::::** 3. NAMATA GETRUDE - 4. HEMBE VIOLET

### **VERSUS**

#### **:::::::::::::::::::::::::::::::::::::** KATO MALE SAMSON (BENEFICIARY IN THE ESTATE OF THE LATE YEREMIYA WAKITESA)

## BEFORE HON. JUSTICE KAREMANI JAMSON. K

## **RULING**

## Introduction.

Lusasizi John, Violet Kamatenesi, Namata Getrude and Hembe Violet (hereinafter referred to as the applicants) filed this application under section 33 of Judicature Act (now section 37) Order 7 rules 11 (a) (d) & (e), 14(1) and 19 of the Civil Procedure Rules (CPR) against Kato Male Samson (hereinafter referred to as the respondent) seeking for the orders that;

- 1. High Court civil suit no. 0103 of 2024 be dismissed against the applicants for failure to attach relevant documents making the same to fail to disclose a cause of action against the applicants and an abuse of court process. - 2. High Court civil suit no. 0103 of 2024 be struck out as against the applicants for being barred by the statute of limitation. - 3. High Court civil suit no. 0103 of 2024 be struck out as against the 1st applicant for suing a non-existent party. - 4. The service of summons upon the applicants be set aside. - 5. The respondent pays the costs of this application.

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The grounds of this application are set out in the application and the affidavit in support sworn by the 1st applicant- Lusasizi John on behalf of other applicants but briefly are: -

- 1. That the applicants are defendants in the respondent's civil suit no. 0103 of 2024 (the main suit) which was filed in this court seeking several orders. - 2. That the applicants filed a written statement of defence and a counterclaim in which they raised several preliminary objections. - 3. That whereas the respondent in the main suit is suing as a beneficiary of the estate of the late Yeremiya Wakitesa (the deceased), he attaches no document or lists any on his list of witnesses to show that he is a son and a beneficiary of the estate of the deceased his claimed grand father Yafesi Busuulwa. - 4. That whereas the respondent claims that the deceased died intestate and left behind among other private mailo land comprised in Singo Block 549 Plot 1 measuring approximately 777.6 Hectares (suit land), the respondent attaches no document on his plaint to show that the deceased owned the stated suit land and whether the stated suit land still exists in his possession in order to possess a cause of action in trespass against the applicants. - 5. That the respondent's cause of action against the applicants for recovery of land and trespass to land was brought well outside the limitation periods of 12 years without the respondent pleading exemptions from the statute of limitation. - 6. That the 1st applicant is not John Lusasi Bahemuka who is a non-existent party to the respondent's suit.

The respondent swore an affidavit in reply stating as hereunder;

- 1. That the application is premature, misadvised, misconceived, brought in bad faith and an abuse of court process. - 2. That the preliminary points of law raised by the applicants were raised before the Deputy Registrar at the pre-trial hearing for summons for directions and the learned Registrar referred the matter to the trial judge for determination and framing as an issue during trial.

$-$ *man*

- 3. That the respondent intends to tender in all the documents deemed relevant to supprt the case at the trial and as such the application is premature and devoid of merit. - 4. That the cause of action as expressly stated by the respondent in the plaint is primarily trespass and yet the application is based on an averment that there is no cause of action pleaded. - 5. That the respondent peremptorily avers that trespass is a tort against possession and not ownership and therefore the grievances of the applicants touching on accuracy of the contents of the certificate of title are misadvised. - 6. That it is trite law that trespass is a continuing cause of action and it occasions every day when a tort feasor is in unlawful entry and continuous possession of the plaintiff's land. - 7. That the applicants in their pleadings do not dispute the ownership of the suit land by the respondent and therefore they are estopped from refuting the fact that it is the respondent who has always been in possession of the suit land until they violated his possessory interests and unlawfully entered thereunto. - 8. That the respondent found out that the $2^{nd}$ , $3^{rd}$ and $4^{th}$ applicants were occupying the suit land in 2014 and he started to prosecute them in several dispute resolution platforms therefore the claim that the suit is time barred is equally misadvised and resultantly misfiled. - 9. That the 1st applicant was identified as John Musasizi and whereas it should have been Lusasizi, this was clearly a typographic error which does not go to the substance of the matter. - 10. That this application and the applicant's objections are premature, not valid and should be dismissed.

#### Background.

The respondent filed civil suit no. 0103 of 2024 jointly and severally against the applicants for trespass on part of the respondent's land at Bugabo village, Kiboga district. The applicants denied the respondent's claim through their written statement of defence and filed a counterclaim. It is from the said suit that the applicants bring the current application seeking the above orders.

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## **Issues**

The issues for determination are: -

- 1. Whether civil suit no. 0103 of 2024 discloses a cause of action against the applicants. - 2. Whether civil suit no. 0103 of 2024 is time barred. - 3. Whether civil suit no. 0103 of 2024 should be struck out against the $1$ st applicant for suing a non-existent party. - 4. What remedies are available to the parties?

## Representation

The applicants were represented by Mr. Sserunkuma Bruno of $M/S$ G. W Bwanika and Co. Advocates while the respondent was represented by $M/S$ Asiimwe & Kitaka Advocates.

Only the applicants filed written submissions which have been considered in determination of this application.

## **Resolution of issues.**

1. Whether civil suit no. 0103 of 2024 discloses a cause of action against the applicants.

Counsel for the applicants submitted that order 7 rule 14(1) of the CPR provides that when a plaintiff sues upon a document in his or her possession or power, he or she shall produce the said document in court when the plaint is presented. He relied on the case of **Fakrudin** Vallibhai Kapasi and anor V Kampala District Land Board and Alliance Holdings Ltd HCCS No. 570 of 2015. That upon perusal of the respondent's plaint in the main suit, the same shows that the respondent is seeking for declarations among others that he has a registrable and or non derrogble equitable and legal interest vide private mailo land comprised in Singo Block 549 Plot 1. That whereas the respondent is suing as a beneficiary of the estate of the late Yoremiya Wakitesa, he attached no document or lists any witness in his list of witnesses to show that he is a son and beneficiary of the estate of the deceased. That the respondent attached no document on his filed plaint to show that the deceased owned the stated suit land as registered in his own names and whether the said land still exists.

Manni Manni

### Analysis of court.

A cause of action means every fact which is material to be proved to enable the plaintiff succeed or every fact which if denied the plaintiff must prove in order to obtain judgment. See: Uganda Aluminium Ltd V Restuta Twinomugisha CACA No. 22 of 2000.

Order 7 rule 11 (a) of the CPR provides that a plaint shall be rejected where it does not disclose a cause of action. In determining whether a plaint discloses a cause of action or not, the court must look only at the plaint and its annexures. See: Kapeka Coffee Works Ltd V NPART CACA No. 3 of 2000.

The decision in Tororo Cement Co. Ltd V Frokina International Ltd; Civil Appeal No. 21 of 2001 laid down the three essential elements to support of a cause of action:

- 1. the plaintiff enjoyed a right; - 2. the right has been violated; - 3. the defendant is liable;

Order 7 rule 14 of the CPR provides as follows;

(1) Where a plaintiff sues upon a document in his or her possession or power, he or she shall produce it in court when the plaint is presented, and shall at the same time deliver the document or a copy of it to be filed with the plaint.

(2) Where a plaintiff relies on any other documents (whether in his or her possession or power or not) as evidence in support of his or her claim, he or she shall enter the documents in a list to be added or annexed to the plaint

Order 7 rule 14 (1) is interpreted to refer to a situation where a plaintiff files a suit on the basis of possession of a particular document for example where one files a suit as an administrator of the estate of the deceased, they are expected to attached a copy of letters of administration as was in the case of Fakrudin Vallibhai Kapasi and Anor V Kampala District Land Board and Alliance Holdings Ltd (supra) cited by counsel for the applicants.

James Julium

The rationale for attaching the document upon which one is suing is to establish the cause of action and the locus standi of the plaintiff in instituting the suit.

In HCCS No. 0103 of 2024 filed by the respondent, under paragraph 3 of the plaint it shows that the respondent/plaintiff is suing the applicants for trespass onto his land. The suit is not filed on the basis of a particular document for which the respondent must attach to his plaint.

Furthermore, the counsel for the applicants contended that the respondent attached no document or a witness in his list of witnesses to show that he is a son or beneficiary to the deceased.

This claim would ordinarily fall under Order 7 Rule 14 (2) of the CPR where a plaintiff is mandated to list the documents he or she intends to rely on or as added or annexed to his/her plaint.

Upon perusal of the plaint, the respondent attached a number of documents to support his claim as plaintiff. He further attached the summary of evidence which shows the list of documents he intends to rely on to substantiate his claim and also stated that he shall rely on other documents with leave of court.

The respondent attached a list of witnesses and at this time it is premature to know their evidence so as to conclude that they will not prove that the respondent is grandchild of the deceased owner of the land.

The plaint in paragraphs 3, 4 lay out the facts constituting the cause of action against the applicants. The facts show that the plaintiff/respondent enjoyed a right as an owner of the suit land, the applicants/defendants trespassed onto the said land to the respondent's detriment.

Based on the above reasoning, I find that the plaint in civil suit no. 0103 of 2024 shows that the plaintiff /respondent enjoyed a right that has allegedly been violated by the defendants/ applicants and hence discloses a cause of action.

Maur

### 2. Whether Civil Suit no. 0103 of 2024 is time barred.

Counsel for the applicants submitted that Order 7 Rule 6 of the CPR provides that where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the grounds upon which the exemption from the law is claimed.

That the 1st applicant purchased the suit kibanja from the respondent on $15/7/2006$ . That the said purchase agreement was relating back to 1998 when the 1st applicant's relatives were in possession of the suit land. That the $1st$ applicant has been in possession of the suit kibanja since 1998 and in 2006 when he bought from the respondent. That the claim by the respondent against the 1st applicant for recovery of land/ trespass whose occupation he came to know in 2006 and 2014 was brought out outside the limitation period.

#### Analysis by court.

Expiry of a limitation period provides a defendant with a complete defence to an action. In the case of **Donovan V Gwentoys Ltd [1990] 1 WLR 472**, Lord Griffith stated;

"The primary purpose of the limitation period is to protect a defendant from the injustice of having to face a stale claim that is a claim with which he never expected to have to deal with"

The respondent sued the applicants for trespass to land.

**Section 5 of the Limitation Act cap 290** provides that no action shall be brought by any person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or her.

In paragraph 11 of the affidavit in reply, the respondent contends that trespass is a continuing tort and a cause of action can arise any time as long as the tort feasor is in continuous possession of the land.

In paragraph 13 of the affidavit in reply, the respondent stated that he found out that the $2^{nd}$ . $3rd$ and $4th$ applicants were occupying the suit land in 2014.

On the other hand, in paragraph 3 (h) of the plaint, the respondent averred that in December, 2014 while taking a walk around the suit land, he found new structures that had been

$-$ *Mam*'

constructed by the 1st applicant/plaintiff in excess of the 4 acres that he knew belonged to the $1st$ applicant. In paragraph 3(j), the respondent also contends that the $2nd$ applicant had also encroached on the land kibanja without his consent. That since then he has been using different authorities to solve the issues to no avail.

In paragraph $3(k)$ of the plaint, the respondent avers that in August 2021, he found that the $3rd$ and $4th$ applicants had also trespassed onto the suit land.

The suit was filed on 29th January 2024 which implies that the suit was brought 9 years and 1 month after the respondent first became aware of the cause of action that was against the 1st and $1^{st}$ and $2^{nd}$ applicants. This falls within the time limit of 12 years within which an action for trespass to land ought to be brought from the time one becomes aware of the trespass.

In the circumstances, I find that civil suit no. 103 of 2024 is not time barred.

## 3. Whether civil suit no. 0103 of 2024 should be struck out against the 1st applicant for suing a non-existent party.

Counsel for the applicants submitted that the respondent referred to the 1st applicant as John Lusasi Bahemuka in the main suit yet the 1st applicant has never been known by such a name and therefore John Lusasi Bahemuka is a non-existent party to the respondent's suit.

#### Analysis by court.

The respondent in paragraph 14 of his affidavit in reply contended that the mistake is the naming of the 1st applicant was a typographic error which does not go to the substance of the case. That he knew the 1st applicant to be a holder of telephone no. 0777343799 registered in the name of John Lusasi which led him to believe that that is his name.

Civil suit no. 0103 of 2024 was filed reflecting the name John Musasizi alias John Lusasi Bahemuka as the 1st defendant. In the affidavit in support of this application, the said 1st defendant states that he is called Lusasizi John.

man.

I find that these names although different, they are almost similar which makes me believe that it was a mistake/misnorma made in good faith in the naming of the 1st applicant as stated by the respondent.

In the case of Trust Ventures Ltd V Power Foam (U) Ltd Civil Suit No. 669 Of 2017; the court observed that;

"a misnomer refers to a mistake in naming a person, place or thing in a legal instrument which can be corrected by an amendment to the pleadings. It is also a well-established principle that a misnomer can under certain circumstances be rectified by amendment replacing the name appearing on the Plaint or Written Statement of Defence with what the parties believe to be the right litigant.

See also Attorney General V Sanyu Television (1998) CS No. 614 of 1998, Kyaninga Royal Cottages Limited V Kyaninga Lodge Limited HCMA 551 OF 2018."

Order 1 Rule 10 (2) of the CPR provides that the court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.

Under Article 126 (2) (e) of the Constitution of Uganda 1995 cases shall be handled without due regard to technicalities.

I find that the difference in the two names is a technicality which does not go to the root of the matter. It can be corrected without causing any miscarriage of justice to the applicants.

Based on the above findings, I order that the name of the 1st defendant in civil suit no. 0103 of 2024 be corrected and replaced to read Lusasizi John.

Mann wann

## 4. What remedies are available to the parties?

Having overruled all objections raised, I dismiss this application with costs to the respondents.

$\mathcal{L}^{\mathcal{L}}$

I so order.

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wani

KAREMANI JAMSON. K **JUDGE** $09/05/2025$

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