THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT FORT PORTAL
CIVIL SUIT NO. DR. MFP 12/88
1. MARGRET KAHINJU ::::::::::::::::::::::::::::::::::::DEFENDANTS
2. CHRISTOPHER BASAIJA
BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA
On the other hand the learned counsel appearing for the plaintiff submitted that the objection should be overruled because the cause of action is shown in the plaint and would be expanded upon the evidence in the course or the proceedings and would further be argued upon when this court receives the annextures which are attached to the plaint. On the face of it the plaintiff enjoyed the right in that he has been in the occupation of the suit pieces of land. He had an offer of that piece of land and instructions to survey had been given to him. He had had the piece of land surveyed and then out of the blue the defendants had that piece of land surveyed into their names and had the certificate of title granted to them. The case for the plaintiff is that his right had been violated. The land having been offered to him earlier and having had it surveyed earlier he was seeking relief from this court to vindicate and declare that the latter claim of offer of survey and ultimately the issue of titles subordinated upon his earlier right. That constituted a cause of action in this matter. The cases quoted by his learned brother are distinguishable from the present case because in the instant case there was a case of action whereas in the others no cause of action existed. He prayed that the objections be rejected with costs.
In reply Mr. Musana submitted that the court must look at the plaint and nothing else. It is not enough just to allege by the plaintiff that he tried to get title of the land earlier and the defendant got title before him. The title is conclusive evidence of ownership under section 56 of the registration of Titles Act and could only be impeached for fraud but unfortunately fraud has not been pleaded in this case.
He renewed his earlier prayer that the plaint was bad in law and should be rejected.
The provision of order 7 rule 11 (a) is that the plaint shall rejected where it does not disclose a cause of Action. There area health of authorities where a plaint could be rejected under Order 7 Rule 11 of the CPR. In Cottar v Attorney General for Kenya 193 AC P. 18 it was said by Sir Joseph Sheridan CJ as he then was
“What is important in considering whether the cause of action is revealed is by the pleadings is the question to what right has been violated. In addition of course the plaintiff must appear as a person aggrieved by the violation of his right and the defendant as a person who is liable, then in my opinion a cause of action has been disclosed and any omission or defect may be put right by amendment. If on the other hand any of those essentials is missing no cause of action has been shown and no amendment is permissible.”
And Spry v P in Auto Garage vs Motokov v (Supra) quoting with approval the decision in Hassman vs. National Bank of India stated;
“The provision that a plaint shall be rejected appears to be mandatory.”
The decision was expressly upheld in Prince v Kelsall  EA 757 and Sullivan v Ali Mohammed 0sman  EA 239. And in Amin Electrical Service v_Ashok ltd Civil Case No. 118 of 1959 MB No. 18/61. Reported Digest of Uganda High Court Cases on Civil Procedure and Evidence P.39 It was held that to enable a court to reject a plaint on the ground that it discloses no cause of action it should look at the plaint and nothing else Chitley 6th Edition vol. 2 P.2354.
A careful study and scrutiny of the plaint reveals that the plaintiff had for many years kept his cattle and cultivated the land at Kiseruka the subject of the present case. He applied for lease for a term of 19 years there being no dispute. He went ahead and paid all the money he was required to pay under the lease offer. Later on, on 20th September 1983 instructions to survey the land was granted Senior staff Surveyor hut on 20th November a surveyor at kyenjojo Survey Camp wrote to the Senior staff Surveyor stating that the land had already been surveyed and the plaintiff learnt later that the defendant had managed to have the surveyed in their names thus blocking his chances of having the land surveyed and hence the institution of this case.
In one of the prayers the plaintiff sought for a declaration that the purported lease offer to the defendants and the subsequent survey of land earlier granted to the defendant were obtained by fraud and therefore null and void.
From that observation it is the considered opinion of this court that the preliminary objection that the plaint in the instant case that is the plaint discloses no cause of action is overruled with costs to the plaintiff.