RULING ON PRELIMINARY LEGAL OBJECTION TO PLAINTIFF’S CAPACITY TO INSTITUTE THE ACTION
A. Plaintiff’s Case By a writ of summons issued on 21st October 2015, the plaintiff claimed the following reliefs against the defendants:
1. An order setting aside the judgment in suit no. AL 154/2007 dated 6th November 2009 as having injuriously affected the plaintiff’s interest.
2. Declaration of title to all that piece or parcel of land contained in the judgment plans in Suit No. L326/75 dated 19/5/1980, Suit No. BL272/2006 dated 1/6/2006 and in suit no. AL154/2007 dated 6th November 2009 and described in the schedule.
3. Recovery of possession.
4. Damages for trespass.
5. Perpetual injunction restraining the 1st defendant by himself, his agents, servants, privies, assigns and workmen from interfering in anyway whatsoever with plaintiff’s land.
In the statement of claim attached to the writ of summons, the plaintiff describes himself as the ‘Mantse of Katamanso and owner of land described in two judgments’namely suit no L326/75 dated 19/5/1980 in favour of his father and the other dated 1/6/2006 in suit no. BL 272/2006. It is the plaintiff’s case that his lands are situate at Katamanso and not at Amrahia and the said judgments he referred to refer only to lands at Katamanso.
It is the plaintiff’s case that in suit no. FAL/812/2012 which was between the 1st defendant and the 2nd defendant to which he was not a party, the parties filed a Terms of Settlement which was adopted as consent judgment of the court and armed with the said consent judgment, the 1st defendant applied for a writ of possession and an order for demolition of structures which order the 1st defendant is using to harass the plaintiff and his grantees on the plaintiff’s land covered by the earlier judgments referred to.
The plaintiff asserts that the 1st defendant also applied to the Lands Commission and successfully had his judgment plan plotted and the said judgment plan overlapped with the judgment plan of the plaintiff that had already been plotted by the Lands Commission.
The plaintiff asserts that he lodged a complaint with the Lands Commission but they informed him that since the 1st defendant was relying on a judgment of the court, there was nothing they could do until the said judgment was set aside.
The plaintiff therefore instituted this action primarily to have the said judgment set aside and for further orders for declaration of title and recovery of possession amongst others
