Uganda Legal Information Institute - Orders https://old.ulii.org/tags/orders en National Forestry Authority Vs Muhereza Basaliza & Ors (MISC. APPLICATION NO. 380 OF 2018) [2019] UGCA 5 (23 January 2019); https://old.ulii.org/ug/judgment/court-appeal-uganda/2019/5 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/actions-and-applications" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Actions and applications</a></li><li class="field-item even"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li></ul></section><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-dbdd8aa86bb771cde037c08322227fec"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/112/court-appeal-uganda-2019-112.pdf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"><iframe class="pdf" webkitallowfullscreen="" mozallowfullscreen="" allowfullscreen="" frameborder="no" width="100%" height="600px" src="/sites/all/libraries/pdf.js/web/viewer.html?file=https%3A%2F%2Fold.ulii.org%2Fsystem%2Ffiles%2Fjudgment%2Fcourt-appeal-uganda%2F2019%2F112%2Fcourt-appeal-uganda-2019-112.pdf" data-src="https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/112/court-appeal-uganda-2019-112.pdf">https://old.ulii.org/system/files/judgment/court-appeal-uganda/2019/112/court-appeal-uganda-2019-112.pdf</iframe> </div> </div> </div> </div> </div> Wed, 06 Feb 2019 08:55:16 +0000 Ben Mulingoki 29310 at https://old.ulii.org Robert Kitariko v David Twino Katama (ELECTION PETITION MKA No. 2 OF 1981) [1982] UGSC 1 (9 November 1982); https://old.ulii.org/ug/judgment/supreme-court-uganda/1982/1 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/appeals-and-reviews" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Appeals and reviews</a></li><li class="field-item even"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><span style="display:none"> </span> </p> <p class="rtecenter"><span style="font-size:12px"><strong><u>IN THE COURT OF APPEAL</u></strong></span></p> <p class="rtecenter"><span style="font-size:12px"><strong><u>AT KAMPALA</u></strong></span></p> <p class="rtecenter"><span style="font-size:12px"><strong><u>(Coram: Musoke, JA,  Lubogo, JA, Nyamuchoncho,J.A, </u> </strong></span></p> <p class="rtecenter"><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif"><strong>BETWEEN</strong></span></span></p> <p class="rtecenter"><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif"><strong>ROBERT KITARIKO…………………………………………………. APPLICANT<br /> AND</strong></span></span></p> <p class="rtecenter"><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif"><strong>DAVID TWINO – KATAMA……………………………………….RESPONDENT</strong><br /> (Application from the order of the High Court, of Uganda at Kabale (Mr. Justice Oteng) dated 4/11/81in <u>Election Petition MKA No.2 of 1981) </u></span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif"><strong><u>RULING OF THE COURT</u></strong><br /> On November 4, 1981, at the trial of an election petition, the election judge ordered the list of objections struck out, then. The respondent then applied for and was granted leave to appeal. On November l1, 1981, he filed the Notice of Appeal. Since then he has taken no further step to prosecute the appeal. This application seeks, therefore to strike out that Notice of Appeal on the grounds that:-</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">(a)        No appeal lies; or</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">(b)        Alternatively, if such appeal lies, it has not been instituted within the 60 days of the date when the Notice of Appeal was filed.  </span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">In arguing the first ground, Dr. Byamugisha, counsel for the applicant, submitted that this court has no jurisdiction to hear an appeal from an order made in an election petition as such appeal is precluded by S.66 of the National Assembly (Elections) Act, and article 51 of the Constitution. He submitted further that an order made in an election petition is not appealable under S. 77, 78 and 79 of the Civil Procedure Act. He referred us to a number of authorities which we need not reproduce here as we think they are not relevant for the determination of this ground.                                             </span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Counsel for the Returning Officer adopted <u>in toto </u>the submissions Dr, Byamugiaha.<br /> Mr. Obol – Ochola, counsel for the respondent, submitted that an appeal lies to this court so long as the order is not a final decision of the election court disposing of the petition. It is only the final order which is not appealable under s.66 of the National Assembly Election Act. He submitted that the appellant was dissatisfied with the trial judge’s ruling regarding the interpretation of r.11 of the Election Petitions Directions which ruling, he said, was an interlocutory order on a matter of procedure. Such ruling, he said, is appealable by virtue of s.68 of the Civil Procedure Act and O. 40 1 (2) of the Civil procedure Rules. He said that the issues raised by the appeal are very intricate and important legal points which require authoritative ruling of this court.</span></span><br />  </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Article 51 of the Constitution confers jurisdiction on the High Court to hear election petitions to determine the question whether:</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">(a)        any person has been validly elected as a member of the National Assembly and</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">(b)        whether the seat of any member has become vacant.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">The determination of these questions by the High Court (election Court) are not subject to appeal by virtue of article 51 (3) of the Constitution. Section 66 of the National Assembly (Elections) Act ct that at the conclusion of the trial of an election petition the court shall determine whether the elected member of the National Assembly whose election is complained of was duly elected. Thus, repeating more or less what Article 51 of the Constitution says. The section then directs the election judge to certify the result of the trial to the Electoral Commission and that upon such certificate being given such determination shall be final.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif"> <br /> This section clearly deals with the final results of the petition.<br /> Under r.22 of the Election Petitions Directions, the trial of an election petition follows as nearly as possible the trial of a suit and is governed by the provisions of the Civil Procedure Act and the Rules. The Directions were made by the Chief Justice under the enabling s. 71 of the National Assembly (Elections) Act. By the enabling power, he applied, to the trial of petitions, the provisions of the Civil Procedure Act and the rules made there-under. This application clearly makes the trial of an election petition subject to all incidents of the Civil Procedure Act and Rules. That is how S.68 of the Act comes in.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">The question whether the court of appeal has jurisdiction to hear an interlocutory order made by an Election Court in an election petition has been considered in a number of cases in East Africa and other Commonwealth countries. In East Africa the latest case is <strong><u>Mudavadi v. Kibisu (1070) E.A.</u> 585.</strong> That was an appeal from an interlocutory ruling of the Election Court sitting as a division of the High Court of Kenya. No point was taken by the parties as to the jurisdictions of the Court of Appeal to hear the appeal. The judges, however, asked the advocates to address them on the matter. Both counsel (for the appellant and for the Attorney General) agreed that the court did have jurisdiction. The court of Appeal after considering s.44 of the Constitution of Kenya (which is similar to Article 51 of our constitution) and s.66 and 75 of the Kenya Civil Procedure Ordinance (similar to our s.68 and 78 of the Civil Procedure Act and O.40 of the Civil Procedure Rules) held that the court of appeal has jurisdiction to hear an appeal from an order of the High Court which did not determine the validity of the election.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">The second case comes from Malaysia, it is the case of <strong>C.<u>Devan Nair V. Yong Kuan Teik (1967) 2 A.C. 31. </u></strong><br /> In that case the appellant was the successful candidate in the election held on April 25, l964. The result of this duly published in the Gazette on July 11, 1964. On July 28, 1964, within the required 2l days, the respondent presented to the Registrar of the Supreme Court an election petition claiming that the appellant’s election was invalid on the ground that he was disqualified in that he was not at the time a citizen of Malaysia. The appellant not having appointed a solicitor or advocate or left an address for service, the respondent acting under r.10, lodged a copy of his petition on the registrar on the last day of service prescribed by r.l5. He further advertised a notice of presentation of the petition in the gazette on July 23, 1964, after the 10 day period required by r.15. The election judge, struck out the petition on the ground that it had not been served in accordance with rules and on the basis that that order was interlocutory gave leave to appeal The Federal Court of Appeal set aside his decision, giving leave to appeal to the Privy Council it was there held that:</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">“On the basis that the order the election judge was interlocutory and on the true construction of s.33 of the Election Offences Ordinance, that section, which contained no such limiting words as those in, s.36 was insufficient to<br /> overcome the express words of s.67 of the Courts of Judicature Act, 1964, so as to preclude the bringing of an appeal in an interlocutory matter, so that it was open to the election judge to give leave to appeal and the Federal Court to entertain the appeal………….”</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Section 33 referred to in this case corresponds with article 31 of the constitution; s.36 is similar to s.66 of the National Assembly (Elections) Act. Section 67 upon which the decision of the Privy Council hangs, reads;</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">“The Federal Court shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil matter; whether made in the Exercise of its original or of its appellate jurisdiction subject nevertheless to the provisions of this or any other law regulating the terms and conditions upon which such appeal shall be brought.”</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">The gist of this section is more or less contained in s.68 of the Civil Procedure Act it reads:-</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">“Unless otherwise expressly provided in this Act, an appeal shall lie from the decrees or any part of decrees and from the orders c the High Court to the Court of Appeal.”</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">These authorities, with which we respectfully agree, do Show that an interlocutory order made by an election judge in an election petition is appealable with the leave of the court by Virtue of ss.68 and 77 of the Civil Procedure Act and O.40 1 (2), and we so hold. It follows therefore, that this first ground fails.</span></span></p> <p>The second ground advanced by counsel for striking out Notice of Appeal is that he appeal has not been instituted within 60 days of the date when the notice of appeal was lodged. In addition to this argument counsel submitted that the respondent is not entitled to rely on the proviso to sub-rule (1) of r.81, of the Rules of this court (which excludes from the computation of the time within which to institute the appeal the time taken by the registry to prepare the copy of the proceedings) because advocates for the appellant had not sent them a COPY, of the application for the copy of the proceedings to the Registrar of the High Court as required by this rule.</p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Mr. Obol - Ochola submitted that after filing the of appeal he applied in writing for a copy of the proceedings to the Registrar on 12<sup>th</sup> March, 1982, but he said, up to now they have not received the copy of the proceedings. In the circumstance they could not file the memorandum of appeal without that copy. They are still waiting for it. We understand by this argument that he would file the appeal as soon as he gets it. He argued further that it would have been pre-mature to ask the Registrar to issue a certificate at this moment under the proviso to r.81 (1). He also relied on S.61 and S.80 (2)<em> o</em>f the Civil Procedure Act (cap 65). But, he did not say whether or not he sent the copy of the proceedings to the applicant’s advocates.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">As rightly pointed out by Dr. Byamugisha, r.61 applies to criminal appeals and review only. It does not apply to this case. Section 80 (2) relied on by Mr. Obol Ochola does not apply to institution of appeals in the Court of Appeal; such institution is governed by r.81. This leaves only r.81 to consider. Rule 81 regulates the time within which to institute appeals. It stipulates that an appeal should be filed within days after filing the<br /> Notice of Appeal. This period could however be extended if the COPY of the proceedings is asked for 30 days from the date of the decision to appealed from. The order it is desired to appeal against was made on 4<sup>th</sup> November 1981, accordingly, the application for a copy of proceedings should have been lodged not later than 5<sup>th</sup> December, 1981, but the application was made according to the affidavit of Mr. Obol - Ochola, on 12<sup>th</sup> March, 1982. It was many days out of time. Mr. Obol - Ochola has conceded that it was out of time and did not even attempt to give an explanation as to why the application was not made within the time permitted by the rule. It is also admitted that no copy was given to the other party. In this way the rules of court have<br /> not been followed.</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">In <strong><u>Ratnam v. Cumarasamy </u>(1964) 3 All. E.R. 933.</strong> Lord Guest expressed his opinion concerning rules of court in the following words:-</span></span></p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">“The rules of court must prima facie, be obeyed, and, in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a timetable for the conduct of litigation.” </span></span><br />  </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">In this case the rules of courts and in particular r.81 have not been obeyed. The appeal has not been instituted within 60 days of the date when the notice appeal was lodged as required by r.81 (1). The Copy of The proceedings was not applied for within 30 days of the date of the decision against which it is desired to appeal as required by the proviso to r.81 (l). And thirdly, a copy of the app1ictipn for a copy of the proceedings was not sent to the applicant’s advocates as required by r.81 (2); accordingly the appellant is not untitled to rely on the proviso to r.81 (1) to have excluded such time as maybe certified by the registrar to have been required for the preparation and delivery to the appellant of the copy of the proceedings. The effect of those defaults is that they attract the application of r 82 which provides that where a party who lodged a notice of appeal fails to institute an appeal within the appointed time he shall be deemed to have withdrawn his notice of appeal. It therefore, that from the last day on which the appeal could have been properly instituted within the 60 days period permitted by r.81, (without relying on the proviso to r.8l (1) ) the notice of appeal is deemed to have been withdrawn and at the moment no valid notice of appeal is legally on the record. The application for the copy of proceedings made on 12<sup>th</sup> March, 1982, which application was out of time, cannot revive the notice of appea1 nor would the supply of the copy of the proceedings be of any use to the appellant as of now he cannot legally file a memorandum of appeal.</span></span><br />  </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">In the circumstances and for the reasons given above the notice of appeal is struck out with costs to the appellant and the Returning Officer.</span></span><br />  </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Dated at Kampala this 9<sup>th</sup> day of November 1982.</span></span><br />  </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Signed: - Musoke, JA</span></span></p> <p> </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Signed:  Lubogo, JA</span></span></p> <p> </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Signed;  Nyamuchoncho, JA</span></span><br />  </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">Mr. Kasule &amp; Dr. Byamugisha, Counsel for the Applicant.<br /> Mr. Obol - Ochola, Counsel for the Respondent.<br /> Mr. D. Byamugisha of the Attorney General for the Electoral Commission</span></span><br />  </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">I certify that this is a<br /> true copy of the original.</span></span><br />  </p> <p><span style="font-size:12px"><span style="font-family:Times New Roman,Times,serif">M. Ogang<br /> <u>REGISTRAR </u>.</span></span><br />  </p> <p> </p> <p><span style="display:none"> </span> </p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-4a0d37a49d1ffceb8b676b9eb8bab250"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/supreme-court-uganda/1982/1/supreme-court-uganda-1982-1.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 03 Sep 2018 08:35:10 +0000 Ben Mulingoki 29030 at https://old.ulii.org Otwani v Ochieng (HCT-04-CV- CA -098 OF 2012) [2017] UGHCLD 43 (15 February 2017); https://old.ulii.org/ug/judgment/hc-land-division/2017/43 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/actions-and-applications" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Actions and applications</a></li><li class="field-item even"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA </strong></p> <p><strong>HOLDEN AT MBALE</strong></p> <p> </p> <p><strong>HCT-04-CV- CA -098 OF 2012</strong></p> <p> </p> <p><strong> OSUNA OTWANI               :::::::::::::::::::::::                               APPELLANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>DAVID OCHIENG              ::::::::::::::::::::::::                  RESPONDENT</strong></p> <p> </p> <p><strong>BEFORE: HON. MR. JUSTICE HENRY I. KAWESA</strong></p> <p> </p> <p><strong>JUDGMENT</strong></p> <p> Appellant was dissatisfied with the decision of the learned trail Magistrate of Tororo of 25th June 2012. He raised five grounds of appeal in the memorandum of appeal.</p> <ol> <li>That the learned trial Magistrate erred when he failed to guide court in the formulation of issues.</li> <li> That the learned trial  erred in law when he totally refused to evaluate the evidence of the plaintiff and his witnesses.</li> <li> The learned trial Magistrate failed to properly evaluate the evidence on record and hence occasioning a miscarriage of justice.</li> <li> The learned trial Magistrate  erred in fact and law in finding that the  suit land is for the respondent.</li> <li> The learned trial Magistrate erred in law and fact in that Judgment is based on emotion feelings and opinion and not on evidence on record.</li> </ol> <p> The duty of a first appellate court includes the duty to re-evaluate the evidence and make fresh conclusions thereof. The court will always take caution aware that the witnesses.</p> <p> </p> <p> In the case before me, I note that plaintiff <strong>Osuna Otwani </strong>sued<strong> David Ochieng</strong> vide plaint dated 26th August 2008 in Civil Suit 0127/ 2008  Tororo. The plaintiff’s action against the defendant for temporally injunction order and general damages for encroachment into the plaintiff’s land situate at TICAF TORORO. The plaintiff has on several occassions reported the matters to Local Council 1and III Oswani but defendant has ignored and refused to comply rather have continued to trespass and plaintiff holds him liable at law.”  </p> <p> </p> <p>He prayed for permanent injunction, general damages for trespass and costs of the suit.</p> <p> </p> <p>I did not see a copy of the WSD but the record indicates the defendants denied the suit and a scheduling was done where the WSD is referred to issues were agreed on the hearing commenced on 18/3/2009.</p> <p> </p> <p>The plaintiff called 4 witnesses while defendant called 4 witnesses. Court visited locus. At the close of the trial the learned trial Magistrate found in favour of the defendant, hence this appeal.</p> <p> </p> <p> In determining  this appeal I will follow the grounds of appeal as listed, as appellant seems to have argued all of them together. His submissions do not categorically address the grounds of appeal as listed. Respondent followed the order of grounds as listed in the memorandum of appeal, which is the correct practice to follow. I will follow the same practice.</p> <p> </p> <p><strong>Ground 1: Learned trial Magistrate erred when he failed to guide court in the formulation of issues</strong></p> <p> I find this ground idle. The record of the lower court indicates that a scheduling was conducted in open court. This was done as provided for under Order 12 &amp; order 15 of CPR.</p> <p> </p> <p>This order is intended to enable the parties, counsel and court to narrow down the issues for determination.</p> <p>The court is an active participant and on the record it clearly shows that this case was done on 18. 03. 2009. At page 5-6 of typed proceedings two issues were agreed on in full participation of both counsel.</p> <p> </p> <p>Counsel for appellant did not address this ground. Respondent in submission found no problem with the issues as framed. This ground is not proved and fails.</p> <p> </p> <p><strong>Ground 2, 3, 4 and 5: These grounds all fault the learned trial Magistrate‘s failure to properly evaluate the evidence</strong>.</p> <p>The arguments by appellant counsel in submissions attempts to show that the learned trial Magistrate failed to correctly evaluate all evidence on record. He particularly points at the following flaws in the assessments.</p> <ol> <li>That  plaintiff  showed that he had a right to the land since 1964 , and  all evidence supports so ( page 21 of the proceedings).</li> <li> DW2- <strong>Wilberforce  Oluku</strong> told lies and did not know when the agreement  was done ( page  22 of typed proceedings).</li> <li> <strong>DW3 Jane Nagamba Sempa</strong> at page 28 of proceedings though claims  she  sold  the land , failed to recognize  annexture A”  She  stated she sold  land at  100, 000/= then said Shs 50,000/=  then said “ I can’t remember the price” showing she was  an unreliable  witness.</li> <li>It was wrong to refer to section 5 of the Limitation Act.</li> </ol> <p>In reply the respondent’s counsel in submission referred to the  learned trial Magistrate’s Judgment and argued that  it is well reasoned and reached the right conclusions on the evidence .</p> <p> </p> <p>The respondent also invited court to ignore appellant’s annextures to his submissions as being strange to the case.</p> <p> </p> <p> I will begin with the attempt to smuggle in evidence on appeal which was   never before the lower court. This is unacceptable unless done with leave of court. The procedure so to do was not followed and all annexed documents to the appellant’s submissions are hereby struck off and expunged for being “strange” to the case on appeal.</p> <p> </p> <p>Regarding evaluation of evidence I have found that the case of plaintiff was for “trespass” and permanaent injunction. The law of evidence requires facts to be proved by the one who asserts” ( Section  101, 102, 103 of Evidence Act)</p> <p>Plaintiff had a burden to show that he had a cause of action against defendant in trespass.</p> <p> The evidence on record from plaintiff was through PW1-PW2, PW3, and PW4, evidence of defence was by DW1-DW2, DW3 and agreement annexed to WSD as DExh1.</p> <p> </p> <p>The evidence on record shows that (PW1) while plaintiff attempted to show that he bought the land in 1964 from   <strong>Langa Reuben</strong>. His agreement was lost. PW2- <strong>Okware Boniface</strong> only said he knew defendant as a person who had constructed on plaintiff’s land and plaintiff (<strong>Otwani</strong>) was one of the people who began constructions in 1965.</p> <p>In cross-examination he mentioned that <strong>Obwal</strong> had sold the disputed land to <strong>Langa </strong>who sold to<strong> Osuna Otwani</strong>.</p> <p>He also confirmed that <strong>Sempa</strong> stayed there for about 6 years constructing for plaintiff houses, then left his wife <strong>Jane</strong> – stayed on the land for about 7 years then left 4 years ago but he did not know the circumstances under which she left.</p> <p> </p> <p>PW3- <strong>Sylivester  Olimidi</strong>, said it was him and  his father who sold land  to <strong>Langa</strong> who  sold the land  to <strong>Osuna</strong> .  Later he saw <strong>Ochieng</strong> building on the land, and yet this witness was   the one keeping the land (page 17). That Osuna came in 2009 and asked him why <strong>Ochieng</strong> was trespassing.</p> <p> </p> <p>In cross-examination he said Obwal never sold any land.</p> <p>Also confirmed <strong>Sempa </strong>and<strong> Jane</strong>’s presence on the land</p> <p>PW4- <strong>Odoi</strong> said the land is owned by both parties. The plaintiff applied not to relay on his evidence.</p> <p> </p> <p> In defence <strong>DW1 David Ochieng</strong> said he bought the land in 1993 from <strong>Jane Sempa</strong> at 60,000/= which ¼ an acre. He handed in the purchase agreement as exhibit (annex A). He took possession; and constructed thereon and plaintiff used to see him construct, but did nothing.</p> <p> </p> <p> DW2- <strong>Wilberforce Oluku</strong> said the land belongs to the defendant, because DW2’s father the late <strong>Obwanyi</strong> sold it to <strong>John Sempa</strong>. When <strong>Sempa</strong> went back to Buganda he left it to his wife <strong>Jane Sempa</strong>, who in turn sold it to defendant.  Defendant bought and constructed thereon. He confirmed the land is ¼ an acre</p> <p>DW3-  <strong>Negamba Jane</strong> said the land was bought by her husband <strong>John Sempa</strong> from a one <strong>Obwali</strong>. The witness also sold the land to the defendant following her husband’s death in 1990. She sold the land in 1993 in presence of late <strong>Owor</strong>, <strong>James, Butuwu and Salongo</strong>.</p> <p> </p> <p>DW4<strong>- Livingstone Salongo</strong> said he witnessed the agreement of sale to defendant Ochieng by <strong>Jane Sempa</strong> at a cost of 60,000/= and he signed on it. He confirmed the agreement in court as the one on which he signed.</p> <p> </p> <p>Court then visited the locus and noted each party claims.</p> <p> </p> <p>From evidence on record, it was the duty of the plaintiff to prove on the balance of probability that the defendant was in trespass.</p> <p>The law of trespass is that to succeed, the one alleging trespass must prove that he has title to the subject of contention. The law further protects the person in adverse possession. To prove trespass against a person in adverse possession you have to prove better title see <strong>KINTU V KIRUMIRA [1975] HCB 221.</strong></p> <p> </p> <p>The evidence on record shows on the balance of probability that the defendant claims possession by purchase. He is a banafide purchaser of land from DW3- <strong>Jane Sempa</strong>.</p> <p>Meanwhile plaintiff failed to establish by evidence that the land <strong>Sempa</strong> sold was his land.</p> <p> </p> <p>Secondly he claimed that he entrusted the land allegedly to PW3 <strong>Silver Olimidi</strong> who claimed he was “keeping it” (see page 17). The plaintiff and his witnesses were all vague on how <strong>Sempa</strong> gained the right to build and leave, come back and again let his wife therein, then the wife sells when all are just watching!</p> <p>That be as it may, the defendant is protected by the law of banafide purchaser for value  without notice.</p> <p>The plaintiff cannot on evidence on record impeach defendant’s Title without showing that defendant’s title is fraudulent.</p> <p> (See <strong><em>MUSOKE . B V JOGGA (1975) HCB 26).</em></strong></p> <p> </p> <p>From evidence on record therefore and the reasoning of the learned trial Magistrate, I do not agree with the appellant that the learned trial Magistrate did not evaluate the evidence properly.  The plaintiff in the lower court failed to prove his case  on the balance of probabilities. The defence case was more weighty and</p> <p>hence the learned trial Magistrate  reached the right conclusions both on the facts and the law.</p> <p>I do not find any merit in all grounds raised on appeal. This appeal fails and is dismissed with costs to the respondents.</p> <p>I so order.</p> <p> </p> <p><strong>Henry I. Kawesa</strong></p> <p><strong>JUDGE</strong></p> <p><strong>15.02.2017</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-ae2f182f77cb84968be9362796631c9b"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-land-division/2017/43/hc-land-division-2017-43.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Tue, 11 Apr 2017 09:28:10 +0000 Eunice Logose 27279 at https://old.ulii.org Western Uganda Importers & Distributors Ltd Vs Muhasa Ivan Mpondi & 2 Ors (CIVIL SUIT NO. 0014 OF 2014) [2016] UGHCLD 5 (9 February 2016); https://old.ulii.org/ug/judgment/hc-land-division/2016/5 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/actions-and-applications" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Actions and applications</a></li><li class="field-item even"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT KAMPALA</strong></p> <p><strong>(SITTING AT KASESE)</strong></p> <p><strong>CIVIL SUIT NO. 0014 OF 2014</strong></p> <p> </p> <p><strong>WESTERN UGANDA IMPORTERS </strong></p> <p><strong>AND DISTRIBUTERS LTD :::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF </strong></p> <p><strong>VERSUS</strong></p> <ol> <li><strong>MUHASA IVAN MPONDI</strong></li> <li><strong>KASESE DISTRICT LAND BOARD           ::::::::::::::::::::::::::: DEFENDANTS </strong></li> <li><strong>COMMISSIONER FOR LAND REGISTRATION </strong></li> </ol> <p><strong><em>BEFORE: HON. MR. JUSTICE BASHAIJA K. ANDREW</em></strong></p> <p><strong><em>J U D G M E N T:</em></strong></p> <p><em>WESTERN UGANDA IMPORTERS &amp; DISTRIBUTORS LTD. (hereinafter referred to as the “plaintiff”) </em>brought this suit against <em>MUHASA IVAN MPONDI, KASESE DISTRICT LANDBOARD; and the COMMISSIONER FOR LAND REGISTRATION herein after referred to as the “1st”, “”2nd” and “3rd” defendants respectively).  </em>The plaintiff sued the defendants jointly and severally seeking orders and declaration that;</p> <ol> <li><strong><em>The certificate of title registered as FRV 1083 Folio 12 1st Street Kasese be cancelled.</em></strong></li> <li><strong><em>A declaration that the lease registered on Plot 5, 1st Street Kasese by the plaintiff is still subsisting.</em></strong></li> <li><strong><em>In the alternative and without prejudice to the above an order that Plot 5,1st Street belongs to the plaintiff.</em></strong></li> <li><strong><em>An order for a permanent injunction against the 1st defendant or his agents, servants or anybody claiming title under him from interfering with the plaintiff’s quiet enjoyment of the suit property, stopping them from any transaction on this land, alienating it and/or making any claim on it whatsoever.</em></strong></li> <li><strong><em>An order that the 1st defendant hands over all the plaintiff’s official documents, company seal, and makes accountability in his capacity as Chairman Task Force of the plaintiff company.</em></strong></li> <li><strong><em>The 1st defendant pays, general and punitive damages </em></strong></li> <li><strong><em>The 1st defendant pays cost of the suit.</em></strong></li> </ol> <p><em> <strong>Background:</strong></em></p> <p>The plaintiff is a company incorporated under the Laws of Uganda. Sometime in 1982 the plaintiff purchased from one Steven Barekye an interest in land registered as Plot 5, 1st Street – Kasese, <em>hereinafter referred to as the “suit land”). </em>The said Steven Barekye had got a lease offer from the then controlling authority for the initial period of two years running from 01.07.1979 extendable to full term of 49 years on compliance with the building covenant in the lease offer.  Upon purchasing the suit land, the plaintiff also applied for  fresh lease of its own and was given a lease offer for the initial period of two years form 01.08.1982 extendable to a total of 49 years on completion of the building covenant.  The plaintiff went ahead and constructed two warehouses for the purpose of setting up a soap factory on the suit land.</p> <p>Sometime in 1998 the plaintiff company faced financial difficulties in its operations and developed the idea of selling the suit land in order to raise money to revive the operations.   A resolution to that effect was made at the general meeting   of the company  and  the 1st defendant was tasked to look for a buyer. Instead of getting a buyer as mandated, the 1st defendant transferred the suit land into his own names as owner even without paying any consideration for it.  The plaintiff contends that the 1st defendant forged the minutes of the meeting and claimed that the plaintiff had surrendered the suit land to him personally as owner.  Further, that the 1st defendant gorged a “surrender letter” falsely claiming that the company had surrendered the suit land to him as owner and that two other members of the company signed the surrender letter whereas not.</p> <p>Using the “surrender letter”, the 1st defendant applied to the Kasese Town Council Land Board (2nd defendant) to have the suit land registered in his names. The plaintiff learnt of the 1st defendant’s move and wrote to the 2nd defendant warning that the suit land should not be transferred into the 1st defendant’s names, because the plaintiff had never surrendered the suit plot to him.  However, the 2nd defendant never heeded the plaintiff’s warning but went ahead to grant ownership of the suit land to the 1st defendant.  The 3rd defendant subsequently issued a certificate of title to the 1st defendant.  That prompted the plaintiff to institute the instant suit against all the defendants jointly and severally seeking the orders outlined above.</p> <p>The 1st defendant, for his part, denied the plaintiff’s claims and the allegations of fraud against him.  He stated that it was the company which, in its general meeting, surrendered to him the suit land as the owner.  He further contended that although the company gave him the responsibility to get the buyer for the suit land, he failed to secure one. That when he approached the 2nd defendant’s agents, they advised him that the period of the lease offer for the plaintiff on the suit land had expired and that the land was free he could apply for it.  That he applied for the suit land and was subsequently issued with freehold certificate of the title in his names for the suit land.</p> <p>Premised on the above averments, the 1st defendant vehemently denied that the suit land belongs to the plaintiff.  He maintained that when the plaintiff’s lease offer period expired, the suit land reverted back to the 2nd defendant who gave it to him.  He prayed that the plaintiff’s suit be dismissed with costs.</p> <p>At the hearing, the plaintiff was represented by their company lawyer Mr. David Bwambale of <em>M/S Bamusede, Bwambale &amp; Co. Advocates</em>, while Mr. Rwakatooke of <em>M/s Nyamutale &amp; Co. Advocates</em> represented the 1st defendant. Both Counsel filed written submissions which are on court record and I have taken them into account in arriving at a decision. I therefore need not to reproduce the submissions in detail in this judgment, but I will make specific references to them as and when occasion demands so.</p> <p>The 2nd and 3rd defendants were duly served with summons to file their respective defences.  Despite acknowledging receipt of the services, they opted not to file any defence. Court was duly satisfied that they were properly and effectively served with summons, and therefore, the case proceeded <em>ex parte</em> under <strong><em>Order 9 r.10 of the Civil Procedure Rules(CPR)</em></strong> as if the said defendants had filed their respective defences.  </p> <p>The plaintiff adduced evidence of three witnesses to wit; PW1 Masereka Simon, PW2 Hellena Biira Bwambale and PW3 Leo Bwambale.  All of them are the current executive as well as the board members of the plaintiff company.  On the other hand, the 1st defendant adduced evidence of two witnesses to wit, himself as DW1 and DW2, Mijumbi Wilson.</p> <p>A scheduling conference was conducted pursuant to <strong><em>Order 12 CPR</em></strong> and the following issues were framed for determination;</p> <p><strong><em>(i) Whether the 1st defendant acquired the suit plot fraudulently.</em></strong></p> <p><strong><em>(ii) Whether the 2nd and 3rd defendant participated in the fraud in respect of the suit land.</em></strong></p> <p><strong><em>(iii) Remedies available to the parties.</em></strong></p> <p><strong><em>Resolution of issues:</em></strong></p> <p> </p> <p><strong><em>Issues No. 1:  Whether the 1st defendant acquired the suit plot by fraud.</em></strong></p> <p>“Fraud” was well defined in the case of <strong><em>FJ K Zaabwe vs. Orient Bank &amp; 5 O’rs SCCA No. 4 of 2006</em></strong> (at page 28). In the lead judgment, Katerebe JSC  (as he then was) relying on the definition of “fraud” in <strong><em>Black’s Law Dictionary (6th Edition)</em></strong> at page 660 held as follows;</p> <p><strong><em>“An intentional perversion of truth for purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right.  A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury.  Anything calculated to deceive, whether by a single act of combination or by suppression of truth or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth or look or gesture…. A generic term embracing all multifarious means which human ingenuity can devise and which are resorted to by one individual to get advantage over another by false suggestion or by suppression of truth and includes all surprise, trick cunning dissembling and any unfair way by which another is cheated.  “Bad faith” and fraud are synonymous and also synonymous of dishonesty, infidelity, faithlessness, perfidy unfairness etc. As distinguished from negligence, it is always positive intentional. It comprises all acts, omissions and concealments involving a breach of a legal or equitable duty and resulting in damage of another, and includes anything calculated to deceive whether it be a single act or combination of circumstances, whether the suppression of truth or the suggestion of what is false whether it be by direct falsehood or by innuendo by speech, or by silence by word of mouth of by look or gesture.”</em></strong></p> <p>Similarly, in the case of <strong><em>Kampala Bottlers Ltd vs. Daminico Ltd SCCA No. 22 of 1992</em></strong>, Wambuzi CJ (at page 5 of his judgment quoting the trial judge on the definition of fraud, held that it is well established that fraud means actual fraud or some act of dishonesty.  The trial judge in that case had relied on the case of <strong><em>Waimiha Saw Milling Co. Ltd vs. Waione Timber Co. Ltd (1926) A.C 101 at page 106</em></strong>, quoting Lord Buchmaster, that fraud implies some act of dishonesty.</p> <p>Furthermore, in <strong><em>David Sejjaaka vs. Rebecca Musoke, SCCA No. 12 of 1985,</em></strong> it was held that fraud must be attributable to the transferee, either directly or by necessary implication.  The transferee must be guilty of some fraudulent act or must have known of such act by somebody else and participated in it or taken advantage of it.  The Supreme Court also in the case of <strong><em>J.W.R Kazzora vs. M.L.S Rukuba, SCCA No. 13 of 1992, </em></strong>held that fraud must be superficially pleaded and strictly proved and cannot be left to be inferred from the facts. </p> <p>In the instant case, the plaintiff stated the particulars of the alleged fraud against the 1st defendant I paragraph 7 of the plaint as follows;</p> <ul> <li><em>Forging minutes of a general meeting to indicate that the plot in issue is surrendered to him whereas not.  See Annexture marked “D”.</em></li> <li><em>Forging a surrender letter and claiming that it originated from the plaintiff whereas not.</em></li> <li><em>Forging signatures of two members of the plaintiff alleging that they signed on the surrender letter.  See Annexture “E”. A copy of surrender letter.</em></li> </ul> <p>In paragraph 15 of the plaint, the plaintiff further particularized facts constituting the alleged fraud by all the defendants as follows;</p> <ul> <li><em>Applying for the conversion of land from customary tenure to freehold tenure well knowing that the land is not customary.</em></li> <li><em>Receiving and approving the above application well knowing that there can never be customary land in an urban area (Municipality).</em></li> <li><em>Claiming that the land has no occupants whereas it has occupants.</em></li> <li><em>Making a wrong notice.  See Annexture Marked “H3”.</em></li> <li><em>Making and forwarding a wrong, fraudulent inspection report.  See Annexture “H4” a copy of the inspection report.</em></li> </ul> <p>To prove that the1st defendant forged minutes of the general meeting the plaintiff adduced in evidence<em> Exhibit P4,</em>which is a copy of minutes of the meeting held on 08.10.1998 at Verina Gardens chaired by the 1st defendant in his capacity as Chairman of the Task Force of the company. At page (E) of the minutes, it shows that the members of the company resolved to sell the suit land which was owned by the plaintiff company in order to raise funds to revive the company which faced financial problems.  The company mandated the 1st defendant to get <em>“a serious buyer” </em>and <em>“after that resolution the company was to revive soon” </em>and by that motion <em>“all the members agreed”.  </em>The plaintiff contends that 1st defendant forges the minutes by adding a statement therein to state that;</p> <p><strong><em>“So Plot No. 5, 1st Street Industrial Area was surrendered and transferred to Ivan Mpondi Muhasa as a full owner of the plot.”</em></strong></p> <p>PW2, Hellena Biira Bwambale, the current vice - chairperson and former chairperson of the plaintiff company, who also attended the said general meeting and is listed as No. 19 therein, testified that no such resolution was ever passed by the members surrendering the suit land to the 1st defendant. She explained that the resolution which was made only mandated the 1st defendant to get a serious buyer and report back to the company, which would assign three other members who would then help in the negotiations of the purchase price.</p> <p>The evidence of PW2 was corroborated in that material particular by PW3 Leo Bwambale who was the member of the plaintiff company at the time the meeting was held and minutes made, and is the current Chairman.   Further corroborating the evidence of PW2 was PW1 Masereka Simon who is a founder member of the plaintiff company who also attended the said meeting and is the current treasurer.  All these witnesses denied the plaintiff ever surrendering the suit land to the 1st defendant to take for his own use, and they insisted that the resolution regarding the surrender and the surrender letter were mere forgeries made by or at the instigation of the 1st defendant to benefit himself.</p> <p>The 1st defendant (DW1) for his part insisted that the company surrendered the suit land to him to own personally. He acknowledged that even though the company members in the said meeting tasked him to get a serious buyer, he failed to get one.  That upon failing to get the buyer, the company members decided to surrender the suit land to him as owner.</p> <p>After carefully evaluating all the evidence together on this issue, I find that the 1st defendant’s testimony is riddled all through with glaringly major inconsistence and contradictions which could not be satisfactorily explained.  They could only point at either attempt calculated to mislead or to tell to court outright deliberate falsehoods.  </p> <p>For instance, the 1st defendant stated that in the meeting of 08.10.1998 the company members asked him to go and look for a serious buyer for the suit land. In the same breath the 1st defendant claims that the company members in the same meeting resolved and surrendered the suit land to him as his personal property after he failed to get the buyer.  This is grossly inconsistent as it makes no sense at all.  Members could not resolve that the 1st defendant looks for a buyer and at the same time resolve to surrender to him the suit land to own as his personal property.  It is also a major contradiction for the 1st defendant to claim that he failed to get a buyer before looking for one in the same meeting held on the same date and venue, and the members surrender the suit land to his as his personal property.</p> <p>DW2 Wilson Mijumbi who was the treasurer of the plaintiff company at the time the meeting was held, who also attended the said meeting as No.5 on the list of attendees, also denied any knowledge of such a resolution to surrender the suit land to the 1st defendant. He testified that he was only aware that the general meeting tasked the 1st defendant to find a buyer but not the surrendering of the suit land to him.</p> <p>It is, therefore, clear on the evidence of the plaintiff and defence witness that the plaintiff never surrendered the suit land to the 1st defendant for him to own as his personal property. The intention of the company asking the 1st defendant as its Task Force Chairman was to find “a serious buyer” to raise money to help to revamp the company’s dire financial situation. The so - called resolution to surrender the suit land to the 1st defendant absolutely contradicts that intention, and the claim by the 1st defendant that the suit land was surrendered to him to own as personal property was unknown to any member of the company including his own witness DW2 Mijumbi Wilson.</p> <p>The logical inference drawn from the facts in evidence above is that the forgery was perpetuated by the 1st defendant who knowingly stood to benefit from it.  The forgery was not an isolated incident but just one of the steps in a plan orchestrated by the 1st defendant to completely deprive the plaintiff of its property. Even the so -called “surrender letter”, <em>Exhibit P6</em> dated 19.11.1998, which was authored, <em>inter alia</em>, by the 1st defendant as Chairman (of the Board/Company) is an obvious fraud and forgery.  It was authored with the sole purpose of buttress the forgery of the resolution in the minutes of the general meeting, <em>Exhibit P4</em>, earlier mentioned of the plaintiff company.</p> <p>The other side – issue to consider is that whereas the 1st defendant was appointed “Task Force Chairman” to oversee the company affairs during its hard times mentioned earlier, he purported to sign <em>Exhibit P6</em> as “Chairman” of the company/board. This was a deliberate misrepresentation of facts and state of affairs to the addressee of the letter - the controlling authority, from whom the 1st defendant fraudulently sought to obtain allocation of the suit land.  According to the unchallenged evidence of the plaintiff, which was also corroborated in that respect by that of the 1st defendant, the chairman of the board/company, was at the time Mr. Bruno Bwambale. The said Bruno Bwambale never signed Exhibit P6. It also so happens that other than the signature of the 1st defendant, the other signatures appearing on the so – called “surrender letter” were denied by the other company officials such as PW1 and PW2 who were more conversant with the signatures of the alleged signatories.</p> <p>The 1st defendant evidently contrived a scheme to deprive the company of its land through misrepresentation and manipulation of the company resolution in the minutes of the said meeting. He forged, or had forged, the minutes and the “surrender letter” and misrepresented himself as chairman of the board/company.  It is plainly clear that the 1st defendant acted dishonestly and fraudulently, and he knowingly intended to benefit from the forgery.  This amounts to nothing short of actual fraud. Having found as such, that effectively disposes of the resolution of this issue on the other particulars of the fraud pleaded under paragraph 7 of the plaint by the plaintiff.</p> <p><strong><em>Issue No. 2: Whether the 2nd and 3rd defendants participated in the fraud in respect of the suit land.</em></strong></p> <p>Under paragraph 15 of the plaint, (in the first bullet) the plaintiff also alleged fraud against the 1st defendant for having applied for the conversion of suit land from customary tenure to freehold tenure well knowing that the land was not customary land.  The defendant on his part testified that to his mind, he knew that the suit land was held under customary tenure.</p> <p>“Customary” tenure is defined under <strong><em>Section 3(1) of the Land Act (Cap.227) </em></strong>and the relevant portion states as follows;</p> <p>      <strong><em>“(1) Customary tenure is a form of tenure -</em></strong></p> <ol> <li><strong><em>applicable to a specific area of land and specific description or class of persons;</em></strong></li> <li><strong><em>subject to Section 27, governed by rules generally accepted as binding and authorities by the class of persons to which it applies;</em></strong></li> <li><strong><em>applicable to any persons acquiring land in that area in accordance with those rules;</em></strong></li> <li><strong><em>subject to Section 27 characterized by local customary regulation;</em></strong></li> <li><strong><em>applying local customary regulations and management to individual and household ownership the use and occupation of, and transaction in, land;</em></strong></li> <li><strong><em>providing for communal ownership and use of land;</em></strong></li> <li><strong><em>in which parcels of land may be recognised as subdivision belonging to a person, a family or a tradition institution; and </em></strong></li> <li><strong><em> which is owned in perpetuity.”</em></strong></li> </ol> <p>None of the description above fits the definition of the suit land in issue as customary land.  At the time the 1st defendant applied for it, the suit land was already plotted and surveyed and had a plot number as “Plot 5, 1st Street – Kasese Industrial Area”.</p> <p>In addition, the suit land could not be customary land as it was in an urban area.  At the time of said meeting on 08.10.1998, the <strong><em>Land Act (Cap 277) </em></strong>had just come into force on 02.07.1998.  It means that the suit land was hitherto held subject to the <strong><em>Public Land Act, 1969,</em></strong> and the  <strong><em>Land Reform Decree 1975</em></strong> as the law in force at the time.  <strong><em>Section 24 of the Public Land Act (supra)</em></strong> and <strong><em>Section 5(1) of the Land Reform Decree (supra)</em></strong> prohibited customary tenure in urban areas. Further in the case of <strong><em>Tifu Lukwago vs. Samwiri Mudde Kizza and Nabitaka SCCA No. 13 of 1996</em></strong> which relied on the decision in <strong><em>Paul Kiseka Ssaku vs</em></strong>. <strong><em>Seventh Day Adventist Church SCCA No. 8 of 1993</em></strong>, it was held that customary occupation without consent of the prescribed authority was unlawful.</p> <p>Since the 1st defendant purported to acquire customary interest in 1998 in the suit land which had been held by the plaintiff and its processor in title since 1979,  it would be illegal for the 1st defendant to hold a customary tenure in the urban area since he could not acquire the interest which did not exist in the first place.  For emphasis, it is noted that even though the <strong><em>Land Act (supra)</em></strong> does not expressly prohibit customary tenure in urban areas, the Act has no retrospective effect and cannot apply to pre-1998 customary occupation.</p> <p>It was, therefore, fraudulent of the 1stdefendant to have applied for the land as customary land well knowing it was not. This knowledge is invariably imputed to him from the fact that he was Task Force Chairman of the plaintiff company and was at all material times aware, or should have reasonably been aware, that the suit land was titled land.</p> <p>I also find fraud on part of the 2nd defendant to have received and approved the 1st defendant’s application for land described as customary land well knowing that no such tenure existed in an urban area, particularly in a municipality such as Kasese. </p> <p>In bullet (3) of paragraph 15, of the plaint, the plaintiff further alleges fraud against the 1st defendant in that he falsely claimed in his application to the 2nd defendant that the suit land had no occupants.  Indeed all the witnesses of the plaintiff and the defendant agree that the suit land had warehouses built on it by the plaintiff company earlier in time, which were intended for a soap factory that never materialised because of the hard financial times the company experienced. <em>Exhibit P3,</em> which are the pictures of the said buildings, were adduced in evidence. All witnesses stated that the buildings’ roof was blown off by strong winds.  Even the 1st defendant acknowledged that the buildings have existed on the  suit land and belonged to the plaintiff company, but strangely, he insisted that the suit land was unoccupied and that it was his merely because he has the title.</p> <p>I find that the 1st defendant acted fraudulently to have claimed in his application <em>(Exhibit P8)</em> and in Inspection Report <em>(Exhibit P10)</em> that the suit land was not occupied. The same would be found in respect of the allegations of fraud against the 1st defendant, in bullet (5), that he made the application as the owner of the land whereas not.  There is ample and well corroborated evidence, as already reviewed above, proving that at the time of applying for the suit land, the 1st defendant was not the owner.  The suit land was not by any colour of right under his ownership at all.</p> <p>I have already found that 1st defendant committed fraud to have claimed that he suit land was customary land whereas.  It was thus fraud on his part to have filled forms for demarcation of the suit land which was already demarcated and plotted.  Needless to emphasise, that the Inspection Report <em>(Exhibit P6)</em> which was filled in by officers of the 2nd defendant was full of falsehoods and total lies knowingly made by the 1st defendant.  Therefore, for the 2nd defendant to have proceeded to give the suit land to the 1st defendant against that background imputes fraud on part of the 2nd defendant. The 3rd defendant is liable in fraud only to the extent that it acted on basis of the fraud committed by the 1st and 2nd defendants.</p> <p>In the cases of  <strong><em>Kampala Bottlers Ltd vs. Damanico (U) Ltd, SCCA No. 22 of 1992 </em></strong>and  <strong><em>J.W.R Kazzora vs.  M.L.S Rukuba, SCCA No. 13 of 1992</em></strong>, it was held that fraud must be proved strictly, the burden being heavier than that on the balance of probabilities in other ordinary civil cases, but not so heavy to require proof beyond reasonable doubt.  In the instant case, I find that the plaintiff has proved the elements of fraud alleged in the particulars  of fraud against the defendants to the required standard.</p> <p><strong><em>Issue No. 3:  What are the remedies available to the parties?</em></strong></p> <p>The plaintiff seeks for the cancellation of the certificate of the title registered as FRV 1083 Folio 12, 1st Street – Kasese.</p> <p><strong><em>Section 64 RTA</em></strong> is to the effect that a title of registered owner is  paramount except for fraud. <strong><em>Section 176 (c)(supra)</em></strong> is to the effect that a registered owner is protected against ejectment except on grounds of fraud. The effect of fraud is that a title of a registered owner is impeachable only on ground of fraud. In this case, there is ample evidence proving that the 1st defendant obtained registration through fraud. His title cannot stand.</p> <p><strong><em>Section 177 RTA</em></strong> is also to the effect that the High Court shall direct the Registrar of Title to cancel any certificate of title (upon discovery that the same was obtained fraudulently) and to substitute such certificate of title or entry as the circumstances of the case required.</p> <p>The plaintiff also prayed for a declaration that the lease registered by the plaintiff on Plot 5, 1st Street Kasese is still subsisting. Court however, cannot make such a declaration because it was never proved by the plaintiff that their lease is still subsisting.  No evidence of the certificate of title showing the lease was adduced in evidence.  Only a lease offer was produced and it does not serve the same purpose as a lease. It is not known whether the plaintiff was ever granted a lease after the initial 2 years in the lease offer expired. This however does not diminish the plaintiff’s interest in the suit land, and the 2nd defendant was not entitled to issue a lease to another person without first according priority to the plaintiff which was a tenant occupying the suit land and which had  buildings thereon.  This disposes of prayer No.(c) for a declaration that the suit land belongs to the plaintiff.</p> <p>The plaintiff seeks an order that the 1st defendant hands over all the plaintiff’s official documents, company seal and makes accountability of all funds that were received in his capacity as Chairman of the Task Force of the plaintiff company.  I find this prayer to be redundant as it is not directly related to the facts in issue.</p> <p>The plaintiff prayed for the award of general damages. The settled position of the law is that the award of general damages is in the discretion of court, and is always as the law will presume to be the natural and probable consequence of the defendant’s act or omission.  See: <strong><em>James Fredrick Nsubuga vs. Attorney General, HCCS No. 13 of 1993; Erukan Kuwe vs. Isaac Patrick Matovu &amp; A’nor HCCS No. 177 of 2003, </em></strong>per Tuhaise J. The purpose of damages is to put the plaintiff in as good a position as he or she would have been if the damage had not occurred. </p> <p>PW2 testified that the 1st defendant has put the company to hardships and betrayed their trust by failing to sell the suit land to get the money to revive the company. She further testified that as a result of the 1st defendant’s action of converting the suit land as his own, the intended money could not be raised and the activities of the company have come to a standstill. That this has caused loss of billions of shillings to the company. PW2 however proposed damages worth Shs.50 million considering that the 1st defendant is a parent and member of the company.</p> <p>Considering the evidence on the issue, I am satisfied that the plaintiff duly demonstrated that it suffered damages at the instance on the 1st defendant.  Accordingly, I award Shs.50 million as fair and adequate general damages payable by the 1st defendant. It shall attract interest at court rate from the date of judgment until payment in full.</p> <p>Regarding the issue of costs, it is the established law, under <strong><em>Section 27(2) of the Civil Procedure Act (Cap 71)</em></strong> that costs are awarded at the discretion of court, and shall follow the event unless for good reasons the court directs otherwise.  See: <strong><em>Jennifer Rwanyindo Aurelia &amp; A’ nor vs. School Outfits (U) Ltd, CACA No. 53 of 1999; National Pharmacy Ltd vs. Kampala City Council [1979] HCB 25</em></strong>.  In the instant case, there is no compelling and justifiable reason to deny the successful plaintiff costs of the suit, and I award the plaintiff costs of the suit.  Accordingly, it is hereby ordered as follows;</p> <ol> <li><strong><em>The certificate of title registered in the names of the 1st defendant as FRV 1083 Folio 12, 1st Street-Kasese is hereby cancelled.</em></strong></li> </ol> <ol> <li><strong><em>The plaintiff is a lawful occupant of the suit land.</em></strong></li> <li><strong><em>The plaintiff is awarded general damages of Shs.50 Million payable by the 1st defendant.</em></strong></li> <li><strong><em>The amount in (iii) above shall attract interest at a rate of 8% per annum from the date of this judgment until payment in full.</em></strong></li> <li><strong><em>The plaintiff is awarded costs of the suit.</em></strong></li> </ol> <p> </p> <p><strong><em>BASHAIJA K. ANDREW</em></strong></p> <p><strong><em>JUDGE</em></strong></p> <p><strong><em>09/02/2016</em></strong></p> <p> </p> <p>Mr. David Bwambale for the plaintiffs in court</p> <p>Mr. Mugisha Rwakatooke for 1st defendant in court</p> <p>The Representatives of the plaintiff company in court.</p> <p>Ms. Kabugho Phebis Court Clerk in court</p> <p>Court:  Judgment read in open court</p> <p> </p> <p><strong><em>BASHAIJA K. ANDREW</em></strong></p> <p><strong><em>JUDGE</em></strong></p> <p><strong><em>09/02/2016</em></strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-93b0a274a1039d5a22321985c4b35e2a"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/hc-land-division/2016/5/hc-land-division-2016-5.docx" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Tue, 01 Mar 2016 07:53:28 +0000 jane mugala 25953 at https://old.ulii.org Wamayeye v Masambu (HCT-04-CV-CR-0003-2011) [2012] UGHC 93 (16 May 2012); https://old.ulii.org/ug/judgment/high-court/2012/93 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA</strong></p> <p><strong>HOLDEN AT MBALE</strong></p> <p>&nbsp;</p> <p><strong>HCT-04-CV-CR-0003-2011</strong></p> <p><strong>(Arising from Sironko CV-LC-001/2008)</strong></p> <p><strong>(From Mbale CV-LC-0052/2008)</strong></p> <p>&nbsp;</p> <p><strong>WAMAYEYE WILLINGTON…………………………………….APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>DR. J.K. MASAMBU…………………………………………..RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>BEFORE: THE HON. JUSTICE STEPHEN MUSOTA</strong></p> <p>&nbsp;</p> <p><strong>REVISION ORDER</strong></p> <p>&nbsp;</p> <p>This application arises out of a suit filed by <strong>Dr. Masambu</strong> in person against <strong>Wamayeye Willington</strong> represented by M/s Dagira &amp; Co. Advocates in Sironko Magistrate’s court claiming for:</p> <ol> <li>A permanent injunction.</li> <li>Mesne profits.</li> <li>General damages for trespass.</li> <li>Consequential financial loss.</li> <li>Interest and</li> <li>Costs of the suit.</li> </ol> <p>&nbsp;</p> <p>In his final prayer, the plaintiff now respondent quantified the claim for mesne profits as shs.45,682,000/= and consequential financial loss as 320000/=.&nbsp; He claimed interest of 35% per annum on mesne profits and financial loss and 25% per annum on general damages.&nbsp;</p> <p>When the defendant failed to file a defence and upon application by the plaintiff, the learned trial Magistrate entered judgment for the plaintiff “for the claim prayed for.”</p> <p>&nbsp;</p> <p>The matter was placed before me for a possible Revision Order.</p> <p>&nbsp;</p> <p>During the hearing of this matter, both <strong>Dr. Masambu</strong> in person and <strong>Mr. Dagira</strong> for the applicant submitted in support of their respective cases.</p> <p>&nbsp;</p> <p>I have considered this application as a whole and the law applicable.&nbsp; I have taken into account the respective submissions.&nbsp; I perused meticulously the entire lower court’s record.&nbsp; I am in total agreement with the submission by <strong>Mr. Dagira</strong> learned counsel for the applicant.</p> <p>&nbsp;</p> <p>The learned trial magistrate presiding over a Grade I Court had no jurisdiction to enter a default judgment in excess of the court’s pecuniary jurisdiction.&nbsp; The claim for mesne profits quantified as shs.45,682,000 plus a financial loss of 320000/= was a claim far beyond the jurisdiction of a court presided over by a Magistrate Grade I.&nbsp; He acted contrary to S.207 (1) (b) of the MCA which limits the pecuniary jurisdiction of a Magistrate Grade I to shs.20,000,000/= only.&nbsp; It is apparent that the default judgment was entered under O.9 r.6 or 8 CPR.&nbsp; These rules talk about liquidated demands yet a claim involving an injunction or mesne profits and general damages cannot be considered to be a liquidated demand.</p> <p>&nbsp;</p> <p>Therefore when the trial magistrate entered the default judgment he had no jurisdiction to do so and did it with material irregularity.&nbsp; This court cannot allow such an order to stand since the learned Magistrate Grade I acted without jurisdiction.&nbsp; It is trite law that where a court acts without jurisdiction its orders are null and void <em>ab initio</em>.&nbsp; It is contrary to the law and an abuse of the process of court.</p> <p>&nbsp;</p> <p>Consequently, I will set aside the judgment and illegal orders of the trial magistrate and refer the suit back to the lower court for a fresh trial.</p> <p>Costs will be in the cause.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Stephen Musota</strong></p> <p><strong>JUDGE</strong></p> <p><strong>16.05.2012</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-b630166b041154717596e38f79700fb5"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2012/93/high-court-2012-93.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:01:26 +0000 Anonymous 18106 at https://old.ulii.org Olegun v Arono (CIVIL REVISION NO. 13 OF 2011) [2012] UGHC 114 (27 June 2012); https://old.ulii.org/ug/judgment/high-court/2012/114 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA</strong></p> <p><strong>HOLDEN AT MBALE</strong></p> <p>&nbsp;</p> <p><strong>CIVIL REVISION NO. 13 OF 2011</strong></p> <p><strong>(From Misc. Application No. 0004 of 2010)</strong></p> <p>&nbsp;</p> <p><strong>OLEGUM JOSEPH……………………………………….APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>ARONO BETTY…………………………………………..RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>BEFORE: THE HON. MR. JUSTICE STEPHEN MUSOTA</strong></p> <p>&nbsp;</p> <p><strong>RULING IN REVISION</strong></p> <p>&nbsp;</p> <p>Through M/s D &amp; G Associated Advocates the applicant <strong>Olegum Joseph</strong> filed this application against the respondent <strong>Arono Betty</strong> represented by M/s Oging &amp; Co. Advocates for orders that:</p> <ol> <li>A Revision order be issued or made against the orders of the Chief Magistrate of Pallisa in Misc. Application No.4 of 2010.</li> <li>Costs of the application be provided for.</li> </ol> <p>&nbsp;</p> <p>The grounds of the application are that:</p> <ol> <li>The applicant was a Respondent in a matter (No.2 of 1992) filed by the Respondent in a Resistance Council Court of Abila in Pallisa in 1992 which resulted into a decree against him dated 31<sup>st</sup> May 1992.</li> <li>The Respondent since the date of the decree took no legal steps to execute the said decree until 16<sup>th</sup> February 2010 when by Misc. Application 4 of 2010.&nbsp; She sought to execute the said decree.</li> <li>There is no evidence on record either by way of an application for execution of a decree, notice to show cause why execution should not be carried out against the applicant or a Return filed showing why execution of the said decree failed between 31<sup>st</sup> May 1992 and 16<sup>th</sup> February 2010.</li> <li>The decree sought to be executed by the respondent in Misc. Application No.4 of 2010 is barred in law by limitation and the Chief Magistrate of Pallisa acted in the exercise of his jurisdiction illegally with material irregularity and injustice in dismissing the objection on a point of law raised by the Applicant regarding the same.</li> <li>The irregularity and illegality in (d) above have occasioned such grave injustice to the applicant as to justify intervention by the High Court.</li> <li>It is fair and equitable and in the interest of substantive justice that this application be granted.</li> </ol> <p>&nbsp;</p> <p>In the lower court, the learned Chief Magistrate Pallisa dismissed a preliminary objection raised by the applicant’s counsel.&nbsp; He made reference to sections 35(1) and 35(2) (a) of the Civil Procedure Act and held that:</p> <p>“<strong><em>Attachments to the affidavit of the applicant indicate that attempts were made by the Resistance Council II Chairman of Kibale to prevent the respondent from continued occupation of the suit land after the Resistance Council Court had decreed it to the applicant.&nbsp; There is sufficient evidence therefore to show that the respondent continued to occupy the</em></strong><em><strong>disputed land even after judgment had been passed against him.&nbsp; It is his conduct that prevented execution of the judgment of the Resistance Council 1 Abila.&nbsp; The instant application therefore falls under the exception of S.35 (2) (a).&nbsp; counsel’s objection is accordingly overruled with costs</strong></em><strong>.”</strong></p> <p>It is upon this ruling that this application was filed.</p> <p>&nbsp;</p> <p>Both <strong>Mr. Malinga</strong> for the applicant and <strong>Mr. Oging</strong> for the respondent submitted in support of their respective cases.&nbsp;</p> <p>&nbsp;</p> <p>I have considered the application as a whole.&nbsp; I have related the same to the law and the lower court’s record.</p> <p>&nbsp;</p> <p>Revisional powers of this court are derived from S.83 of the Civil Procedure Act.&nbsp; Under that law, the High Court may revise a case and make such order in it if the trial court appears to have;</p> <ol> <li>exercised a jurisdiction not vested in it in law;</li> <li>failed to exercise a jurisdiction so vested; or</li> <li>acted in exercise of its jurisdiction illegally or with material irregularity or injustice.</li> </ol> <p>&nbsp;</p> <p>In my considered view, the above section refers to irregular exercise or non-exercise of jurisdiction.&nbsp; It does not refer to conclusions of law or fact in which a question of jurisdiction is not involved.</p> <p>No doubt the learned Chief Magistrate had jurisdiction to hear and determine the objection raised by learned counsel for the applicant.&nbsp; Indeed the substantive application on this matter was filed before him.&nbsp; He went ahead and judiciously determined the objection against the applicant after considering the law relied upon by the applicant.&nbsp; Deciding against the applicant cannot therefore amount to an illegality or irregularity.&nbsp; The decision of the learned Chief Magistrate involved conclusions of law and fact which were within his jurisdiction to decide upon.&nbsp; A wrong or erroneous conclusion of law or fact or misinterpretation of the law but within the jurisdiction of a judicial officer cannot be a subject for revision because such conclusions are neither illegal nor irregular.&nbsp; They are independent conclusions within the judicial oath of any judicial officer which are not subject to revisional orders.</p> <p>&nbsp;</p> <p>Consequently I cannot fault the decision of the learned Chief Magistrate through a revision order.</p> <p>This applicant is dismissed with costs.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Stephen Musota</strong></p> <p><strong>JUDGE</strong></p> <p><strong>27.06.2012</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-5a2fe8d0070656c36b3a20d56da16f49"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2012/114/high-court-2012-114.doc" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 14:01:26 +0000 Anonymous 18096 at https://old.ulii.org Watulatsu Samuel & 2 Ors Vs. Zirimu Haruna (HCT-04-CV-MA-0050-2010) [2010] UGHC 168 (13 July 2010); https://old.ulii.org/ug/judgment/high-court/2010/168 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li><li class="field-item even"><a href="/tags/stay-execution-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Stay of Execution</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA</strong></p> <p><strong>HOLDEN AT MBALE</strong></p> <p>&nbsp;</p> <p><strong>HCT-04-CV-MA-0050-2010</strong></p> <p><strong>(Arising from HCCA No. 0039-2010)</strong></p> <p><strong>1.&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>WATULATSU SAMUEL</strong></p> <p><strong>2.&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>DR. WABURKO</strong></p> <p><strong>T/a ST. MARTIN MEDICAL CENTRE</strong></p> <p><strong>3.&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>NANYGO NATHAN CEASER………………………….APPLICANTS</strong></p> <p><strong>VERSUS</strong></p> <p><strong>ZIRIMU HARUNA………………………………………RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>BEFORE: THE HON. MR. JUSTICE MUSOTA STEPHEN</strong></p> <p>&nbsp;</p> <p><strong>RULING</strong></p> <p>&nbsp;</p> <p>This is an application for stay of execution brought by way of Notice of Motion under O.43 rr.4(1), 3 and 5 of the Civil Procedure Rules.&nbsp; The applicants are represented by M/s Dagira &amp; Co. Advocates.&nbsp; The respondent Zirimu Haruna appears in person.</p> <p>The orders sought in the application are that;</p> <p>1)&nbsp;&nbsp;&nbsp; Execution of the decree in Civil Suit 143/2008 be stayed pending determination of High Court Civil Appeal 0039 of 2010.</p> <p>2)&nbsp;&nbsp;&nbsp; Costs hereof be provided for.</p> <p>&nbsp;</p> <p>The grounds of the application are that;</p> <p>a)&nbsp;&nbsp;&nbsp;&nbsp; The applicants have filed Civil Appeal No.39/2010 against the decree in Civil Suit No.143/2008 against the respondent which has high probability of success.</p> <p>b)&nbsp;&nbsp;&nbsp; The applicants shall suffer substantial loss if execution of the decree is not stayed.</p> <p>c)&nbsp;&nbsp;&nbsp;&nbsp; The application has been lodged without any undue delay, and;</p> <p>d)&nbsp;&nbsp;&nbsp; The applicants are ready and willing to furnish security for the due performance of the said decree.</p> <p>&nbsp;</p> <p>The application is supported by the affidavit of Watulatsu Samuel on behalf of the applicants.&nbsp; The affidavit reiterates the contents of the application and adds that the decree orders the applicants to pay the respondent 200000= as general damages, 2,000,000= special damages and shs 5,000,000= as punitive/exemplary damages with interest at 12% p.a and costs of the suit.&nbsp; That the applicants are likely to suffer substantial loss if execution is not stayed because the respondent is incapable of refunding the decretal sum if he received it now because he has no capacity to do so as he has no known property and/or known source of income.&nbsp; The applicants are willing to furnish security.</p> <p>&nbsp;</p> <p>In his affidavit in reply, the respondent, Mr. Zirimu Haruna depons that no justification has been shown by the applicants to prohibit him from receiving the award of the trial court.</p> <p>That he is entitled to the benefits of the decree of the trial court since he was the successful party.&nbsp; That it is just and equitable that the application be rejected.</p> <p>&nbsp;</p> <p>Court allowed parties to this application to file written submissions.</p> <p>&nbsp;</p> <p>I have considered the application and the law applicable.&nbsp; I have taken into account the respective submissions on either side.</p> <p>&nbsp;</p> <p>Order 43 rr.4 (1) and 3 of the Civil Procedure Rules provides for stay of execution.&nbsp; It is trite law that an appeal to the High Court shall not operate as a stay of proceedings under a decree or order appealed from except so far as the High Court may order. Further it is trite law that execution of a decree may not be stayed by reason only of an appeal having been preferred from the decree.&nbsp; A stay of execution can only be ordered if sufficient cause is shown by the applicant and/or that substantial loss may result to the party applying for stay of execution unless the order is made.&nbsp; The application ought to be made without delay and security for the due performance of the decree or order as will ultimately be binding has to be provided.&nbsp; These conditions must be proved in order for court to grant an order for stay of execution.</p> <p>&nbsp;</p> <p>As conceded by either side appeal No.0039/2010 has been filed as exhibited in annexture ‘A’ to the affidavit in support.&nbsp; The memorandum of appeal complains of eight grounds challenging the findings of the trial Magistrate.&nbsp; As rightly pointed out by Mr. Dagira learned counsel for the applicants, the respondent did not rebut the affidavit evidence by the applicant.&nbsp; He simply deponed emphasizing his entitlement to have his decree enforced.&nbsp; Failure by the respondent to sufficiently rebut the application is detrimental and the law presumes that he admitted the averments as true facts.&nbsp; <strong><em>SEM KAGWA V. BEATRICE NAKITYO [2001-2005] 2HCB 120</em>.</strong> Undoubtedly the respondent is entitled to enjoy the fruits of litigation as he asserts.</p> <p>&nbsp;</p> <p>It is premature for this court to make a finding of whether the appeal has chances of success.&nbsp; The general principle however is that when a party pursues his/her right of appeal, the appeal if successful should not be rendered nugatory.</p> <p>Regarding substantial loss because the respondent has no property or known source of income, the respondent contends that this should not be a basis to deny litigants fruits of litigation at the earliest opportunity.&nbsp; This could be true but court must be cautious and determine whether if a monetary decree is enforced, there is a likelihood of recovery of the decretal money should the appeal succeed.&nbsp; It is the respondent to show that even if he/she is paid the money worth of the decree, he/she will be in a position to refund it in case the result of the appeal is against him.&nbsp; I agree with the decision of Kato J (as he was) when he held in <strong><em>Ntege Mayambala v. Christopher Mwanje HCMA 72/1991 (1993) 1 KALR 97</em></strong>, that;</p> <p>“<em>In the absence of any piece of evidence before me as to the financial position of the complainant, I am inclined to accept paragraph 11 of the applicant’s affidavit in support of this application as being genuine….. the ground that if payments are effected by the applicant before the appeal, it may be difficult to recover them in the event of a successful appeal is relevant ground which amounts to sufficient cause to stay execution</em>.”</p> <p>&nbsp;</p> <p>In the instant application, I find that paragraph 6 is a genuine concern by the applicant and the respondent has not sufficiently allayed the concern.&nbsp; I do not agree with the respondent that this finding will imply he is a pauper.&nbsp; The reverse is true.&nbsp; Justice should be based on broad considerations.</p> <p>&nbsp;</p> <p>In this case the interests of the respondents would be better served if execution of his decree is temporarily stayed and eventualities cushioned by provision of security for the due performance of the appeal decree as may be binding on the applicants in any event.</p> <p>&nbsp;</p> <p>I am satisfied that the application under consideration was filed without undue delay.&nbsp;</p> <p>&nbsp;</p> <p>Regarding the issue of security which is a mandatory requirement, its sufficiency is a matter for the court to determine.&nbsp; The applicants offered a motor vehicle UAE 194 V Toyota Carib as security for the due performance of the decree in any event.</p> <p>&nbsp;</p> <p>According to the respondent the said security may not be sufficient to cover his claim after the appeal.&nbsp; Secondly, that the 2<sup>nd</sup> and 3<sup>rd</sup> applicants have not furnished any security for the due performance of the decree and the attendant costs.&nbsp; Further that there is no valuation report of the security provided.&nbsp; The respondent proposes that in the event of the court granting the application then a sum not less than 20,000,000/= would be assuring.</p> <p>&nbsp;</p> <p>In reply to this, Mr. Dagira, learned counsel for the applicants urged court to look at the decretal sum of the lower court only and not of the outcome in the appellate court.</p> <p>&nbsp;</p> <p>On the issue of security, I agree with the respondent that much as the main consideration in this application should be the decretal sum, the result of the appeal should not be overlooked.&nbsp; The matter before court should be looked at as a whole.&nbsp; I also agree that since the applicants are three, they ought to have proposed security to bind them respectively at the end of the appeal.</p> <p>&nbsp;</p> <p>Without valuation it is difficult to tag value on a Carib vehicle of the UAE registration series.&nbsp; In my consideration view therefore I will allow this application and order that the Carib vehicle produced before the Registrar for viewing with its latest third party insurance cover, and in addition to that security each of the other two applicants will bind themselves respectively in the sum of 5,000,000/= not cash for the due performance of the decree as will be binding on each.</p> <p>&nbsp;</p> <p>This application is allowed.</p> <p>Costs shall be in the cause.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Musota Stephen</strong></p> <p><strong>JUDGE</strong></p> <p><strong>13.7.2010</strong></p> <p>13.7.2010</p> <p>Applicants absent.</p> <p>Respondent in court in person.</p> <p>Dagira for Applicants.</p> <p>Wanale Interpreter.</p> <p>Dagira:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The matter is for ruling.</p> <p>&nbsp;</p> <p>Court:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Ruling delivered.</p> <p>&nbsp;</p> <p><strong>Musota Stephen</strong></p> <p><strong>JUDGE</strong></p> <p><strong>13.7.2010</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-b6ff48a6fe359b46f4e2d65e9e607277"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2010/168/high-court-2010-168.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:59:56 +0000 Anonymous 17785 at https://old.ulii.org Uganda Revenue Authority v Uganda Land Commission (HCT-04-CV-MC-0020-2009) [2010] UGHC 167 (13 July 2010); https://old.ulii.org/ug/judgment/high-court/2010/167 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li><li class="field-item odd"><a href="/tags/property-law" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Property Law</a></li><li class="field-item even"><a href="/tags/land" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Land</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA</strong></p> <p><strong>HOLDEN AT MBALE</strong></p> <p>&nbsp;</p> <p><strong>HCT-04-CV-MC-0020-2009</strong></p> <p><strong>UGANDA REVENUE AUTHORITY……………………………APPLICANT</strong></p> <p><strong>VERSUS</strong></p> <p><strong>UGANDA LAND COMMISSION..……………………………RESPONDENT</strong></p> <p>&nbsp;</p> <p><strong>BEFORE: THE HON. MR. JUSTICE MUSOTA STEPHEN</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>RULING</strong></p> <p>&nbsp;</p> <p>The applicant, Uganda Revenue Authority hereafter referred to as ,URA brought this application through its Legal Services and Board Affairs department by way of a Notice of Motion under S.166 Registration of Titles Act (RTA) S.19 (1) of the Uganda Revenue Authority Act and O.52 rr.1 &amp; 3 of the Civil Procedure Rules (CPR) for orders that:</p> <p>(1)The applicant be granted vesting orders in respect of the following properties vested in the applicant by virtue of the URA Act Cap.196:</p> <p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 210, Folio 19, Plot 28 Airport road Entebbe.</p> <p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 208, Folio 19 Malaba Bridge-Bukedi.</p> <p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 212,Folio 12 Merama Customs Post.</p> <p>(iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LRV 759 Folio 23, Plot 7-11 Maluku Drive, 1 and 1A Hayes Sadler Road and 6, 8, 10, 12, 14 School Drive, Mbale</p> <p>(v)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 213 Folio 20, Plot 2A Nadiope Road East, Jinja.</p> <p>(vi)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 2228 Folio 1, Goli Customs Post.</p> <p>(vii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 208 Folio 15 Plot 1, 2A, 10 Block E Butiaba.</p> <p>(viii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LRV 299 Folio 5 Plots 52 and 54 Seventh Street Industrial Area Kampala.</p> <p>(ix)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LRV 766 Folio 7, Plot 41, 43, 45, 47 Kamugugunu Road Mbarara.</p> <p>(x)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 222 Folio 7 Plot 9 Njara Road Fortportal.</p> <p>(2)Provision be made for costs of this application.</p> <p>&nbsp;</p> <p>This application is supported by the affidavits of Doris Akol and Benard Olok which were relied on at the hearing of this application.</p> <p>&nbsp;</p> <p>The respondent is the Uganda Land Commission (ULC).</p> <p>&nbsp;</p> <p>The general grounds in the notice of motion are that:</p> <p>a)&nbsp;&nbsp;&nbsp;&nbsp; The applicant is the lawful owner of the properties vested in her by the URA Act.</p> <p>b)&nbsp;&nbsp;&nbsp; The respondent never transferred the properties vested in the applicant by law despite several requests by the applicant to the respondent to do so and despite serving it statutory notice of an intention to sue.</p> <p>c)&nbsp;&nbsp;&nbsp;&nbsp; The respondent has been illegally selling and/or allocating property belonging to the applicant to the detriment of the applicant.</p> <p>d)&nbsp;&nbsp;&nbsp; The applicant has been in possession of the properties by law.</p> <p>e)&nbsp;&nbsp;&nbsp;&nbsp; The said properties continue to raise audit queries from the auditor General and the Public Accounts Committee of Parliament of Uganda.</p> <p>f)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The properties are key strategic revenue centres for tax collection.</p> <p>g)&nbsp;&nbsp;&nbsp;&nbsp; It is in the interest of justice that this application is granted to protect the applicant’s interest in the properties.&nbsp;</p> <p>&nbsp;</p> <p>The affidavits in support further reveal that the properties listed were being used as residences, offices and customs posts for the departments of Customs, Excise, Inland Revenue and Sales tax of the Ministry of Finance of the government of Uganda prior to the creation of the applicant.&nbsp; Certificates of title are annexed as A1 to A8.&nbsp; That the applicant acquired the property from the Ministry of Finance as successors in title by virtue of S.19 of the URA Act from the defunct East African Community/East African Common Services Authority who are the registered proprietors.</p> <p>&nbsp;</p> <p>Further that some of the properties are registered in the names of the respondent to hold in trust for the applicant pending the vesting of such properties in the applicant.&nbsp; That the applicant has been in effective occupation and possession of the suit properties since her creation in 1991 and has lodged caveats on some of the properties as in annexture A<sub>4</sub> and B<sub>3</sub>.&nbsp; That the respondent illegally sold and allocated properties as shown in annextures G, H &amp; I.</p> <p>&nbsp;</p> <p>According to the affidavit of service by one Ojiambo Paul a Clerk with URA, he served the respondent with the Notice of Motion for hearing of this application on 10<sup>th</sup> March 2010.&nbsp; The Secretary to the respondent, K.S.B. Mubbala acknowledged service by sealing the notice with the official stamp of the respondent.&nbsp; The respondent or its representative did not appear in court on the hearing date.&nbsp; Earlier on 31<sup>st</sup> July 2009, the respondent acknowledged receipt of the statutory notice of intention to sue.</p> <p>&nbsp;</p> <p>I allowed the applicant to proceed <em>exparte</em> but I remained surprised that dispite being an important government institution and the claim being land, the Uganda Land Commission decided to behave the way it did by neglecting or refusing to assist court reach its decision.</p> <p>&nbsp;</p> <p>After perusing the application and the attendant supporting documents, and relating the same to the submission by Mr. Ali Sekatawa learned counsel for the applicant, I figured out the brief facts of this application as follows:</p> <p>&nbsp;</p> <p>At one time there existed the East African Common Services Authority incorporated under the East African Common Services Organization Ordinance.&nbsp; This authority owned several properties including <em>inter alia</em> the properties listed in this application.</p> <p>&nbsp;</p> <p>The properties were used by the departments of customs, income tax and inland revenue.&nbsp; It appears that these properties were taken over by the defunct East African Community for the same purpose.&nbsp; When the East African Community ceased to exist, the properties were vested in the Ministry of Finance of the Uganda Government before the creation of the applicant and as is the norm, the properties were registered in the names of the respondent to hold in trust for the applicant’s predecessors and later the applicants who have been in effective possession and occupation of the suit properties since 1991.&nbsp; The applicant has been trying to have the properties transferred into its names but the respondent has been ignoring or refusing the request hence this application.</p> <p>&nbsp;</p> <p>This is an application for a vesting order of the listed properties into the applicant under S.166 RTA. Usually a vesting order can be made in the following circumstances:-</p> <p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Where there has been a sale of registered land;</p> <p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; When the whole purchase price has been paid;</p> <p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Possession has been taken by the purchaser with acquiescence of the vendor, and;</p> <p>(iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The transfer has not been executed and cannot be obtained because:</p> <p>(a)&nbsp; The vendor is dead (or non-existent in case of a corporate body);</p> <p>(b)The vendor is residing outside jurisdiction; or</p> <p>(c)&nbsp; The vendor cannot be found.</p> <p>&nbsp;</p> <p>This was the decision in the case of <strong><em>AN APPLICATION BY THE TRUSTEES OF LUGAVE CLAN [1960] EA 322 </em></strong>PER BENNET J. (then).</p> <p><u>The decision </u><strong><em>IN THE MATTER OF AN APPLICATION FOR A VESTING ORDER BY STANBIC BANK UGANDA LIMITED HC MISC. CAUSE 209/2004 AT KAMPAL</em></strong>A (PER MUSOTA Ag. J then) Unreported was based on the above parameters. Although the latter case referred to a corporate personality which is analogous to human beings.&nbsp; The facts in the latter case were that Stanbic Bank Uganda Limited became a successor in title of the assets owned by Uganda Commercial Bank (UCB) which were vested in Uganda Commercial Bank Limited (UCBL) and no transfers had earlier been made into the names of Stanbic Bank Uganda Limited the applicant.&nbsp; The beneficiaries then, UCBL, continued to hold the properties in trust for the applicant.</p> <p>&nbsp;</p> <p>After the merger of the applicant and subsequent liquidation of UCBL, the applicant (Stanbic Bank Uganda Limited) assumed the said trust on its own behalf as a beneficiary of the assets owned by UCBL in respect of the assets and the uncompleted conveyances.&nbsp; A vesting order of the claimed properties was made.</p> <p>&nbsp;</p> <p>The instant application, however, appears to be slightly different from the above because the applicant herein (URA) appears to claim under statute.&nbsp; S.19 of the URA Act enacts that;</p> <p>“<em>19 (1) All property except any such property as the Minister may determine, which immediately before the commencement of this Act was vested in Government for the use of the departments of customs, income tax and inland revenue for the purpose of giving effect to the laws set out in the first schedule to this Act, shall on the date of commencement of this Act, and without further assurance, vest in the authority subject to all interests, liabilities, charges, obligations and trusts affecting that property</em>.”</p> <p>&nbsp;</p> <p>The properties which were vested in government for the use of the departments of customs, income tax and inland &nbsp;revenue departments were therefore vested into the URA by statute.</p> <p>&nbsp;</p> <p>Although under S.49 of the Land Act the Uganda Land Commission is enjoined to:</p> <p>“<em>49 (a) hold and manage any land in Uganda which is vested in or acquired by the Government in accordance with the Constitution</em>,”</p> <p>the land which it has been holding in trust for the government and were used by the customs, income tax and inland revenue departments ought to have been surrendered to the applicant upon commencement of the URA Act.&nbsp; There was no justification for Uganda Land Commission to wait for litigation to do so.&nbsp; If there was justification, Uganda Land Commission has not brought it forward.</p> <p>&nbsp;</p> <p>S.19 (1) of the URA Act made an exception to the functions of the commission in respect of government land comprised in the properties the applicant is claiming.&nbsp; Both parties here to are legal personalities by statute. For one to hold the other’s property must be by legal arrangement.</p> <p>&nbsp;</p> <p>In my considered view therefore, in addition to the conditions outlined in Ss 166 and 167 RTA, a vesting order can be made by the High Court if authorized by statute like in the instant case.&nbsp; As soon as the statute came into force, the Uganda Land Commission’s&nbsp; continued holding of the suit properties in trust for URA.</p> <p>I am therefore satisfied that the applicant has proved a balance of probabilities that it is entitled to the remedy sought in respect of the following properties:</p> <p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 210, Folio 19, Plot 28 Airport Road Entebbe.</p> <p>(ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 208, Folio 19 Malaba Bridge-Bukedi.</p> <p>(iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 212,Folio 12 Merama Customs Post.</p> <p>(iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 213 Folio 20, Plot 2A Nadiope Road East, Jinja.</p> <p>(v)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 228 Folio 1, Goli Customs Post (wrongly referred to as FRV 2228 in the application).</p> <p>(vi)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 208 Folio 15 Plot 1, 2A, 10 Block E Butiaba.</p> <p>(vii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LRV 299 Folio 5 Plots 52 and 54 Seventh Street Industrial Area Kampala.</p> <p>(viii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LRV 766 Folio 7, Plot 41, 43, 45 and 47 Kamugugunu Road Mbarara.</p> <p>(ix)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; FRV 222 Folio 7 Plot 9 Njara Road Fortportal.</p> <p>(x)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; LRV 759 Folio 23, plot 1 and 1A Hayes Sadler Road and plots 6, 8, 12 and 14 School Drive Mbale.</p> <p>&nbsp;</p> <p>I therefore grant a vesting order to Uganda Revenue Authority in respect of the above ten properties.</p> <p>&nbsp;</p> <p>I am unable to grant a vesting order in respect of LRV 759 Folio 23 Plot 7-11 Maluku Drive because this court pronounced itself on this property in <strong><em>Civil suit 0042 of 2001 YASIMINI NABIRYE KAHIRA V. UGANDA REVENUE AUTHORITY &amp; CHIEF REGISTRAR OF TITLES</em></strong> where it was held <em>inter alia</em> that plots 7-11 Maluku Drive is the property of the 1<sup>st</sup> Defendant (URA) and the Certificate of title issued to the plaintiff was ordered to be revoked/cancelled for being wrongly and illegally issued.&nbsp; No vesting order is necessary in the circumstances.</p> <p>&nbsp;</p> <p>In the final result, this application is allowed with costs.</p> <p>&nbsp;</p> <p><strong>Musota Stephen</strong></p> <p><strong>JUDGE</strong></p> <p><strong>14.7.2010</strong></p> <p>14.7.2010</p> <p>Banard Olok for Applicant.</p> <p>Respondent absent.</p> <p>Wanale Interpreter.</p> <p>&nbsp;</p> <p><strong>Olok</strong>:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Matter is for ruling and I am ready to receive the ruling.</p> <p><strong>Court:</strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Ruling delivered.</p> <p>&nbsp;</p> <p><strong>Musota Stephen</strong></p> <p><strong>JUDGE</strong></p> <p><strong>14.7.2010</strong></p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-3b0525dff1be259f21be38c525bbe06c"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2010/167/high-court-2010-167.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:59:56 +0000 Anonymous 17787 at https://old.ulii.org Uganda EX-Service Association v Kiboga District Land Board & 3oers (HCT .Misc. App. No. 303 OF 2009) [2010] UGHC 56 (14 July 2010); https://old.ulii.org/ug/judgment/high-court-uganda/2010/56 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li><li class="field-item odd"><a href="/tags/injunctions-and-interdicts" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Injunctions and interdicts</a></li><li class="field-item even"><a href="/tags/interlocutory-order-0" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Interlocutory Order</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p><strong>THE REPUBLIC OF UGANDA</strong></p> <p><strong>IN THE HIGH COURT OF UGANDA AT NAKAWA</strong></p> <p><strong>HCT MISC APPL N0. 303 OF 2009</strong></p> <p><strong>(ARISING FROM HIGH COURT CIVIL SUIT N0. 91 OF 2009)</strong></p> <p>&nbsp;</p> <p><strong>UGANDA EX-SERVICE MEN ASSOCIATION:&nbsp; ::::::::::::::::::::::::::::::::&nbsp;&nbsp;&nbsp;&nbsp; APPLICANT</strong></p> <p><strong>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; V E R S U S</strong></p> <p><strong>1&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>KIBOGA DISTRICT LAND BOARD</strong></p> <p><strong>2&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>SARAH NANZIRI</strong></p> <p><strong>3&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>SHARIFAH BABIRYE</strong></p> <p><strong>4&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>NATURAL FOOD INDUSTRIES:&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ::::::::::::::::::::::::::::&nbsp;&nbsp; RESPONDENTS</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>BEFORE: &nbsp;&nbsp;&nbsp;&nbsp; HON. LADY JUSTICE FAITH MWONDHA</strong></p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>JUDGMENT</strong></p> <p>&nbsp;</p> <p>This application by Chamber Summons was brought before me by Counsel for the applicants under S.98 of the Civil Procedure Rules.&nbsp; S.33 of the Judicature Act and or 41 rule (1) (a) and rule 9 of the Civil Procedure Rules for orders that;-</p> <p>(a)&nbsp;&nbsp;&nbsp; A temporary injunction do issue restraining the respondents/defendants and or their nominees, agents or servants from entering or carrying on any developments or introducing people/cattle on the suit land till the determination of the main suit.</p> <p>&nbsp;</p> <p>(b)&nbsp;&nbsp; That costs of the application be provided.</p> <p>The application was supported by an affidavit of one Kakubale Boniface and briefly the grounds were as follows:-</p> <p>&nbsp;</p> <p>(1)&nbsp;&nbsp; That the suit property is in danger of being damaged, washed and or alienated by the respondents.</p> <p>(2)&nbsp;&nbsp; That the applicants shall suffer irreparable loss if the suit property is disposed of and the applicant/plaintiff’s suit shall have barren results.</p> <p>&nbsp;</p> <p>(3)&nbsp;&nbsp; That the respondents have embarked on the process of opening boundaries despite the presence of occupants on the land as such infringing on their rights.</p> <p>&nbsp;</p> <p>(4)&nbsp;&nbsp; That the applicant has filed High Court Civil Suit N0. 91/2009 challenging the extension and issuance of certificate of title for leases granted to the respondents.</p> <p>&nbsp;</p> <p>(5)&nbsp;&nbsp; That the <em>status quo</em> should be maintained pending the outcome of the suit because it’s just and equitable to do so when a temporary injunction is issued.</p> <p>In ground 8 of the affidavit of Kakubare Boniface, the applicants averred that the applicants will suffer irreparable injury/damage and loss of the whole property if the suit property is disposed of before the hearing of the suit if the orders for the temporary injunction are not issued.</p> <p>At the hearing of the application, the parties were directed to file written submissions and a schedule was made to that effect.&nbsp; The schedule was complied with and the ruling was received to 14/07/10.</p> <p>The respondents 2, 3, and in reply averred that they were the registered owners of the suit land and that it was the initial lease term of 5 years which expired in 1996 and was extended to full term effective 1<sup>st</sup> October 1996.&nbsp; That the land which was allegedly&nbsp; leased to the applicants is comprised in Singo Block 517, Plots 33 and 34 at Kibanda Bukomero which is not the same description with the respondent’s land.</p> <p>That she had been informed by her lawyers which she verily believed that it was true there couldn’t be different blocks for the same piece of land.&nbsp; She averred further that the respondents have always been in occupation of their land and have carried out developments thereon and the applicants were trying to use police and army men to force the applicants from their land and have on several occasions tried to involve the District Police Commander and have so far introduced one Captain Franklin Kwehangana who has brought his animals and is carrying thereon illegal structures.&nbsp; She averred further that the applicants waited to obtain the court order to cover their illegal acts and eventually evict the respondents from their land.&nbsp; That the applicants have not shown any injury suffered or likely to be suffered that cannot be compensated by damages.</p> <p>&nbsp;</p> <p>To support these grounds, counsel for the respondent submitted that in 2008, the leases of the respondents were extended to full term effective from 1<sup>st</sup> October 1996.</p> <p>That in Kagubare’s affidavit in support of the application, acknowledged that the leases for plot 8, 9 and 10 on block 831 Singo were granted to the 2, 3 and 4<sup>th</sup> respondents.&nbsp; That he acknowledged that it was the 1<sup>st</sup> respondent who was controlling authority over the land and it is the 1<sup>st</sup> respondent who gave it to the 2<sup>nd</sup>, 3<sup>rd</sup> and 4<sup>th</sup> respondents the leases and subsequently extended it to full term.</p> <p>&nbsp;</p> <p>He affirmed the grounds in paragraphs 5 of the 2<sup>nd</sup> respondent’s affidavit that the applicants were granted leases on Singo Block 5, 7 plot 33 and 34 and these were granted leases on Singo block 517 plots 33 and 34, the applicants had made overlapping survey of the respondents’ land and had presented them as Singo block 517 plots 33 and 34 , the applicants’ lease was cancelled by the 1<sup>st</sup> respondent.</p> <p>He submitted that the status quo is that the respondents are in occupation of the suit land and carrying out mixed farming as provided by the lease.</p> <p>That the respondents are trying to illegally seek the help of court to stop the respondents from carrying on their activities on the suit land and to also introduce their agents on the suit land which would be disturbing from the <em>status quo</em>.</p> <p>&nbsp;</p> <p>Counsel for the respondents further submitted that if the temporary injunction is issued, the applicants will use it to evict the respondents from their land over which they lawfully have a certificate of tile and stop them from permanently carrying on their farming activities.&nbsp; That they are trying to get illegal possession of the respondents’ land by use of army men, contacts in police and cover it up with the order of this court.</p> <p>&nbsp;</p> <p>O.41 r1 (a) and (2) of the Civil Procedure Rules states;-</p> <p><em>‘where in a suit its proved by affidavit or other wise and that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongly sold in execution of a decree, the court may by way of order, grant a temporary injunction to restrain such act or make such order for the purpose of staying and preventing the wasting damaging, alienating, sale, renewal or disposition of the property, as court thinks fit until the disposal of the suit or until further order’.</em></p> <p>After careful perusal of the chamber summons application and the affidavit attached thereon of the applicants and the reply of the respondents and upon careful consideration of the submissions filed by counsel for the applicant and the respondents, I find the following;-</p> <p>(1)&nbsp;&nbsp; That before the court can grant the application and issue the order, there has to be a <em>prima facie</em> case established by the applicant.&nbsp; And that the applicant has a duty and he/she is bound to satisfy court that the suit is not a shum and that the applicant has a probability of succeeding in the main suit.&nbsp; I respectfully cite with approval the case of <strong>Imelda Gertrude Basudde Nalongo versus Tereza Mwenkise, Misc Appl N0. 0402/2003 (<em>unreported)</em></strong> where <strong>His Lordship Hon. Justice Kibuuka Musoke of High Court of Uganda described what a <em>prima facie</em> meant in this context of the application for a temporary injunction.</strong></p> <p>(2)&nbsp;&nbsp; The applicant needs to establish by evidence by the affidavit that there are triable issues in the main suit and therefore the two issues to be determined at this stage are -;</p> <p>i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether he/she has established a <em>prima facie</em> case.</p> <p>ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether he/she would suffer irreparable damage if the injunction is not issued.</p> <p>Among the cases I perused on the subject of injunction, is <strong>Godfrey Sekitoleko and four others versus Seezi Peter Mutabazi and two others.&nbsp; Court of Appeal Civil Appeal N0. 65 of 2001 in which the Hon. Justices of the Court of Appeal led by Her Lordship Mukasa Kikonyogo DCJ, ENGWAU AND Byamugisha JJA </strong>&nbsp;in July 2004 held as follows among others:-</p> <p><em>(a)&nbsp;&nbsp; </em><em>For a temporary injunction to issue, court must be satisfied that the applicant has a </em>prima facie <em>case with a probability of success that the applicant must otherwise suffer irreparable damage which would not be adequately compensated in damages.&nbsp; If the court is in doubt, it will decided the application on a balance of convenience.</em></p> <p><em>(b)&nbsp;&nbsp; </em><em>The subject matter of a temporary injunction is the protection of legal rights pending litigation.&nbsp; In exercising its jurisdiction to protect legal rights to property from irreparable or serious damage pending the trial, the court&nbsp; does not determine the legal rights to property but merely preserves it in its actual condition until the legal title or ownership can be established or declared ..................’</em></p> <p>&nbsp;</p> <p>(2) &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; I had the opportunity to peruse the pleadings of the parties i.e., both the plaint and the written statement of defence and I have carefully studied the chamber summons and the affidavits thereon, including the rejoinders.&nbsp; I could not come across anything in the affidavits which established that the property was in danger or being wasted or alienated and that the applicant would suffer irreparable damage if the order is not issued.&nbsp; The evidence established by the affidavits was that the respondents were opening boundaries.</p> <p>&nbsp;</p> <p>In my opinion this <em>perse</em> can not establish to my satisfaction that the property is in danger and that he suffers the damage it cannot be compensated by way of damages.</p> <p>&nbsp;</p> <p>(3)&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;On the contrary, from perusal of the affidavit and the written statement of defence of the respondents, there has been established a case that, they are in occupation of the suit land though its this suit land which is being disputed.&nbsp; But this is an issue for the main trial not in a case of the grant since in the full fledged trial; evidence will have to be brought to prove their occupation.&nbsp; Besides, the respondents have for the time being a valid certificate of title which the applicants are seeking cancellation of.</p> <p>There is evidence established by affidavits of the respondents that they are dealing and or utilising the suit land in accordance with the lease terms.</p> <p>&nbsp;</p> <p>(4)&nbsp;&nbsp; &nbsp;&nbsp;&nbsp;&nbsp;&nbsp;So on a balance of convenience, it seems to me if the application is &nbsp;&nbsp;granted, and it will be contrary to good conscious, equity and definitely will result into injustice on part of the respondents.&nbsp;</p> <p>Accordingly because of the above foregoing, I find the applicants have failed to establish that there is a <em>prima facie </em>case to warrant the grant and secondly they have failed to prove that the suit is not a shum and that they will suffer irreparable injury which cannot be compensated by damages.</p> <p>An injunction is a question of exercise of courts discretion and this court is unable to exercise it because of the above stated reasons.</p> <p>&nbsp;</p> <p>The application is dismissed with costs.</p> <p>&nbsp;</p> <p><strong>...........................</strong></p> <p><strong>FAITH MWONDHA</strong></p> <p><strong>J U D G E</strong></p> <p>14/07/10</p> </div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-4851d85007b442c67b711d7d13d9dffc"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2010/56/high-court-2010-56.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:59:56 +0000 Anonymous 17786 at https://old.ulii.org Noor Muhammed Vs. Jaffery Wanami (Civil Revision No.2 Of 2007) [2010] UGHC 122 (14 June 2010); https://old.ulii.org/ug/judgment/high-court/2010/122 <section class="field field-name-field-flynote field-type-taxonomy-term-reference field-label-above view-mode-rss"><h2 class="field-label">Flynote:&nbsp;</h2><ul class="field-items"><li class="field-item even"><a href="/tags/civil-procedure" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Civil Procedure</a></li><li class="field-item odd"><a href="/tags/orders" typeof="skos:Concept" property="rdfs:label skos:prefLabel" datatype="">Orders</a></li></ul></section><div class="field field-name-body field-type-text-with-summary field-label-hidden view-mode-rss"><div class="field-items"><div class="field-item even" property="content:encoded"><p>&nbsp;</p> <p class="rtecenter">THE REPUBLIC OF UGANDA</p> <p align="center"><strong>IN THE HIGH COURT OF UGANDA AT <span data-scayt_word="JINJA" data-scaytid="1">JINJA</span></strong></p> <p align="center"><strong>CIVIL REVISION NO. 002 OF 2007</strong></p> <p align="center"><strong>(Arising from Miscellaneous Application No. 43 of 2006 in</strong></p> <p align="center"><strong><span data-scayt_word="Jinja" data-scaytid="2">Jinja</span> Chief Magistrates Court Civil Suit No. 124 of 2006)</strong></p> <p align="center">&nbsp;</p> <p align="center"><strong><span data-scayt_word="NOOR" data-scaytid="3">NOOR</span> <span data-scayt_word="MUHAMMED" data-scaytid="4">MUHAMMED</span> :::::::::::::::::::::::::::::::::::::::::::::APPLICANT</strong></p> <p align="center"><strong>VERSUS</strong></p> <p align="center"><strong><span data-scayt_word="JAFFERY" data-scaytid="5">JAFFERY</span> <span data-scayt_word="WANAMI" data-scaytid="6">WANAMI</span> ::::::::::::::::::::::::::::::::::::::::::::RESPONDENT</strong></p> <p>&nbsp;</p> <p align="center"><strong><u>REVISION ORDER</u></strong></p> <p>The applicant brought this application under the provisions of s.83 of the Civil Procedure Act (CPA) for orders that the ruling of His Worship <span data-scayt_word="Ssalaamu" data-scaytid="8">Ssalaamu</span> Godfrey <span data-scayt_word="Ngobi" data-scaytid="9">Ngobi</span>, Magistrate Grade I sitting at <span data-scayt_word="Jinja" data-scaytid="7">Jinja</span> which was delivered on the 19/01/2007 be revised and set aside and for costs of the application. The application was supported by the affidavit dated 22/01/2007 deposed by Mr. <span data-scayt_word="Wafula" data-scaytid="11">Wafula</span> Charles, an advocate with the firm of <span data-scayt_word="Mangeni" data-scaytid="13">Mangeni</span>, <span data-scayt_word="Wafula" data-scaytid="12">Wafula</span> &amp; Co., Advocates, (the applicant&rsquo;s advocates). The respondents filed an affidavit in reply dated the 19/07/2007, deposed by Jacob <span data-scayt_word="Osilo" data-scaytid="14">Osilo</span>, an advocate with M/s <span data-scayt_word="Okalang" data-scaytid="15">Okalang</span> Law Chambers (the respondent&rsquo;s advocates).</p> <p>&nbsp;</p> <p>When the application came up for hearing on 9/04/2009, counsel for the respondent raised two preliminary objections. One related to the procedure adopted here while the other related to the affidavit in support of the application. There was also contention about the propriety of the affidavit in reply to the application. I found that the procedure adopted in the matter was proper and struck out the affidavit in support of the application, as well as the affidavit in reply thereto, for not disclosing the sources of the information contained in them. Nonetheless, I allowed the application to proceed on its merits and my reasons are stated in my ruling dated 06/07/2009.</p> <p>&nbsp;</p> <p>In order to fully appreciate the issues and point to be disposed of in this application, I found it necessary to set out the facts from which the application arose in some detail. They are that by a specially endorsed plaint, the applicant sued the respondent in Civil Suit No. 124 of 2005 at the Chief Magistrates Court in <span data-scayt_word="Jinja" data-scaytid="16">Jinja</span>. He claimed for shs. 1,900,000/=, being the balance due and outstanding on account of a lorry that the respondent bought from him. The respondent did not apply for leave to defend the summary suit. As a result, on the 3/03/2006 the Chief Magistrate entered judgment and a decree for the respondent to pay to the applicant shs. 1,900,000/= and the costs of the suit.</p> <p>&nbsp;</p> <p>At the request of counsel for the applicant, the plaintiff&rsquo;s Bill of Costs was taxed <em>ex parte</em> on the 27/02/2006 and allowed at shs. 1,611,600/=. On 17/04/2006, the first warrant of attachment and sale was issued in respect of the respondent&rsquo;s property (the motor vehicle for which the balance in the suit was claimed which had been registered as No UAE 725H. The warrant was returned on 23/03/2006 with a report that the respondent had dismantled the vehicle and made execution impossible. Kigulu Express Auctioneers applied for a renewal of the warrant by arrest of the respondent. On the same day, a warrant was issued for the arrest of the respondent to recover shs. 1,900,000/= plus costs of shs. 1,611,000/= making a total of shs. 3,514,600/=.</p> <p>&nbsp;</p> <p>On the same day (23/03/2006) the parties entered into a settlement agreement. It was signed by the respondent (judgment debtor), counsel for the applicant (judgment creditor) and Lugwire Peter (the court bailiff). It was therein agreed that the judgment debtor had paid shs. 500,000/= towards the judgment debt, that the balance outstanding was shs. 2m, that would be paid in two equal instalments of shs. 1m. It was further agreed that the 1<sup>st</sup> of such instalments would be paid on 23/04/2006 while the second one would be paid on 23/05/2006. It was also agreed that on failure to do so, the respondent would be arrested or other execution would be carried out to levy the amount. The respondent also agreed to pay the bailiff&rsquo;s fees of shs. 500,000/= in equal instalments, on the same dates as the agreed balance due. The consent was lodged in court and endorsed by the magistrate on 20/04/2006.</p> <p>&nbsp;</p> <p>It appears the respondent did not honour the consent settlement because on 31/05/2006 a warrant for the attachment and sale of the respondent&rsquo;s property (a permanent lock up, No. 25B Cathedral Road, Bugembe) was issued to recover shs 1,400,000/= being the decretal sum due to the plaintiff and further costs of shs. 1,611,000/= (altogether a total of shs. 3,011,600/=). The approximate value to be recovered by the sale was stated in the warrant to be shs. 5,000,000/=. Auction of the property was advertised in Bukedde news paper on 3/06/2006 and it was to take place within 30 days of the advertisement.</p> <p>&nbsp;</p> <p>On 26/07/2006 the respondent deposed an affidavit in which he stated that he had paid the applicant&rsquo;s advocates shs. 17,560,000/=. He attached several receipts in respect of payments made to the applicant totalling that amount. He further averred that his property was under attachment due to a claim of shs. 3,011,600/= yet that was not the amount outstanding from him. He prayed that execution be stayed. After reading the affidavit the Magistrate G1 issued an order for stay of execution in which he stated that he was satisfied that sale ought to be stayed. The court bailiff was directed to halt any attempts to sell the property.</p> <p>&nbsp;</p> <p>By letter dated 28/07/2006 filed in court on the 17/08/2006, the auctioneers filed a return in court in respect of the warrant that had been issued to them. It included an agreement of sale to show that on 10/07/2006, Kibstar General Auctioneers sold the respondent&rsquo;s lock up at Bugembe to one Musa Wadhuwa for shs 4,700,000/=. On 18/08/2006 the Chief Magistrate issued an order for delivery to purchaser of the land to enable the auctioneer to put the purchaser in possession thereof. On 21/08/2006 the bailiff reported that he had effected the order.</p> <p>&nbsp;</p> <p>But before that, on 01/08/2006 the respondent had filed Misc. Application No 43/2006 under the provisions of s.34 of the CPA in the Magistrates&rsquo; Court. He sought for a declaration that the decree in C/S No. 124 of 2006 had been duly discharged and/or satisfied, and for orders that the attachment of his house be lifted, as well as for costs of the application.</p> <p>&nbsp;</p> <p>The applicant (herein) opposed the application on the grounds that the respondent had been duly indebted to the applicant at the time of filing the suit. Further that the respondent had entered into a consent settlement on the 23/03/2006 wherein shs 500,000/= was deducted from the outstanding amount but he still failed to pay the balance. That upon the respondent&rsquo;s failure to pay, execution issued to attach and sell his lock-up No. 25B situate at Bugembe. The applicant further averred that the decree in Civil Suit No. 124 of 2004 was duly satisfied upon attachment and sale of the lock-up and a return of the execution was filed in court. It was the applicant&rsquo;s contention that in the interests of justice and equity court ought to dismiss the application for having no merit.</p> <p>&nbsp;</p> <p>The trial magistrate delivered his ruling on the 19/01/07 after hearing submissions from counsel for both parties. He concluded that the applicant herein had gone to court and put up a false claim and obtained a judgment leading to the sale of the respondent&rsquo;s property. Relying on the provisions of Article 126 (2) (e) of the Constitution of the Republic of Uganda, he decided that the whole process was illegal and could not be countenanced by a court of law. He released the respondent&rsquo;s property from attachment and ordered that the purchaser be evicted from it. The decree complained against was not lifted and remains subsisting. The trial magistrate further ordered that the applicant (now the respondent) be paid &frac34; of the taxed costs for the application.</p> <p>&nbsp;</p> <p>The applicant then filed this application on the 22/01/2007 for revision of the proceedings and for an order setting aside the trial magistrate&rsquo;s ruling and orders. Numerous grounds for the application were stated in the notice of motion; but I found that the grounds were only 5 as follows:</p> <p style="margin-left:61.2pt;">1.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the trial magistrate&rsquo;s order was issued in total disregard of the consent settlement signed by the same magistrate.</p> <p style="margin-left:61.2pt;">2.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the trial magistrate erred when he granted the application to nullify the attachment without first granting the applicant leave to defend (the suit).</p> <p style="margin-left:61.2pt;">3.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the trial magistrate acted with bias when he issued an order during the court vacation, without a certificate of urgency, to stop the court bailiff from selling the suit land when the same had already been sold.</p> <p style="margin-left:61.2pt;">4.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That it was illegal and irregular to grant an eviction order against a bona fide purchaser in possession who had bought the land pursuant to a court order, without giving him an opportunity to be heard.</p> <p style="margin-left:61.2pt;">5.&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; That the trial magistrate exercised his jurisdiction illegally and acted with material irregularity when he cancelled the execution.</p> <p>&nbsp;</p> <p>The advocates representing both parties filed written submissions to dispose of the application. M/s Wafula &amp; Co. Advocates who represented the applicant filed submissions on 8/04/2009. Okalang Law Chambers for the respondent filed submissions on his behalf on 27/08/2009.</p> <p>&nbsp;</p> <p>In their submissions, the applicant&rsquo;s advocates argued that the trial magistrate acted illegally or with material irregularity when he purported to lift the attachment of the respondent&rsquo;s property. Counsel for the applicant argued so because the trial magistrate allowed the respondent who had not applied for leave to defend the suit or filed a defence to contest the contents of the judgment in default of a defence. In their view, when he failed to apply for leave and file a defence, he admitted all that was contained in the plaint and could not thereafter challenge it as he did in Miscellaneous Application No. 43 of 2006. That by entertaining the respondent&rsquo;s claims that he paid over and above what was due to the applicant was in a way allowing the respondent to file a defence in the suit after judgment had been entered against him.</p> <p>&nbsp;</p> <p>Counsel for the applicant further argued that following his failure to file a defence, the respondent entered into a consent settlement wherein he undertook to pay the applicant certain monies in two instalments. That his attempt to bring evidence to the effect that he was coerced into entering that consent was not supported by any evidence and the trial magistrate erred when he relied on it. It was also contended for the applicant that the trial magistrate&rsquo;s finding that the decree was obtained through fraud was erroneous because he also found that by the time judgment was entered against the respondent, he was still indebted to the applicant though not in the amount claimed in the plaint. Counsel further submitted that the trial magistrate acted illegally when he came to the finding that at the time of filing the suit the respondent was indebted to the applicant in the sum of shs. 500,000/= only. In his view the trial magistrate could not have come to that conclusion because there was no WSD filed to enable him to do so. He challenged the magistrate&rsquo;s reliance on certain notes that had been made on Annexure &ldquo;B&rdquo; to the applicant&rsquo;s affidavit in support of the application as not being part of the document between the parties thereto.</p> <p>&nbsp;</p> <p>Counsel for the applicant finally submitted that the trial magistrate&rsquo;s order lifting the attachment occasioned a miscarriage of justice, because the sale had already been concluded and an independent party had taken possession of the property. That in addition, the trial magistrate did so without giving that party an opportunity to be heard. It was also his view that the order to set aside the attachment could have only been made after an application to set it aside. He concluded this was not only irregular but illegal.</p> <p>&nbsp;</p> <p>In reply, counsel for the respondent pointed out the contradictions in the amounts named in the warrants that were issued in attachment of the respondent&rsquo;s property. The respondent&rsquo;s counsel also pointed out the fact that while the applicant insisted that execution issued following the consent settlement, the same was abandoned and the respondent instead resorted to the original decree which was based on an erroneous amount that had been stated in the plaint.</p> <p>&nbsp;</p> <p>Counsel for the respondent then submitted that an applicant under s.34 of the Civil Procedure Act requires court to consider all questions arising from the execution of a decree, i.e. whether they be connected to execution, discharge or satisfaction of the decree. In his view this court had to answer three questions, viz:</p> <p>&nbsp;</p> <p style="margin-left:57.6pt;">i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; How much of the decretal amount was still due?</p> <p style="margin-left:57.6pt;">ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the consent settlement affected the decree, and if so whether it was legal.</p> <p style="margin-left:57.6pt;">iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the execution in question was lawful.</p> <p>&nbsp;</p> <p>With regard to the first question counsel for the respondent argued that the decree had been discharged because the respondent proved that he had paid the whole of the purchase price for the lorry by the time the decree was obtained. It was therefore his submission that the respondent was entitled to a declaration that the decree had been discharged. As to whether the sale of the property was lawfully done, counsel for the respondent argued that it was illegal because the respondent did not owe the applicant shs. 3,011,600/=, as was indicated in the warrant of attachment. He relied on the summary of payments attached to the respondent&rsquo;s affidavit (dated 31/07/2006 for the application to lift the attachment of his property). Counsel for the respondent further contended that the sale was illegal and void because though it was advertised to be by public auction to be held within 30 days of the advertisement (i.e. by 2/07/2006), the return of the warrant indicated that it was held on 10/07/2006, about 8 days after that period had expired.</p> <p>&nbsp;</p> <p>Counsel for the respondent further contended that by the time the respondent filed the application for a declaration that the decree had been discharged the bailiff had not yet filed a return in respect of the warrant. He challenged the return for having been back-dated because though the letter submitting the return was dated the 28/07/2006; the court stamp indicated that the letter was received in court on 17/08/2006. That in addition, the sale was carried out in spite of an order for stay of execution that had been issued on 26/07/2006. It was further contended for the respondent that the sale was illegal because the bailiff did not explain what happened to the balance from the shs. 4,700,000/= recovered from the sale, after he remitted shs. 3,011,600/= to the judgment debtor&rsquo;s advocates.</p> <p>&nbsp;</p> <p>Finally, counsel for the respondent argued that setting aside of the sale did not prejudice the buyer because he could have recourse to judgment debtor in another suit. That in view of the illegalities pointed out, the trial magistrate was right when he lifted the execution and ordered that the property be returned to the respondent.</p> <p>&nbsp;</p> <p>In view of the submissions presented by counsel for both parties and the grounds raised in the application, 7 questions need to be answered in this revision as follows:</p> <p>&nbsp;</p> <p style="margin-left:27.0pt;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the application was properly disposed of under the provisions of s.34 of the Civil Procedure Act.</p> <p style="margin-left:27.0pt;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the default judgment and decree entered against the respondent were valid.</p> <p style="margin-left:27.0pt;">&nbsp;&nbsp;&nbsp; iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the agreement to settle the decree was valid; if so, what was its effect on the decree?</p> <p style="margin-left:27.0pt;">&nbsp;&nbsp;&nbsp; iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the order for stay of execution issued on the 27/07/06 was valid.</p> <p style="margin-left:27.0pt;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; v)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the order for cancellation of the execution was issued with material irregularity or illegality.</p> <p style="margin-left:27.0pt;">&nbsp;&nbsp;&nbsp; vi)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the order to return the property to the respondent was illegal and/or occasioned a miscarriage of justice.</p> <p style="margin-left:27.0pt;">&nbsp; vii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; Whether the applicant is entitled to the remedies claimed.</p> <p>&nbsp;</p> <p>I will now proceed to dispose of the questions in the same order that they appear above.</p> <p>&nbsp;</p> <p style="margin-left:9.0pt;"><strong>i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong>Whether the application was properly disposed of under the provisions of s.34 of the Civil Procedure Act.</strong></p> <p>It was contended for the applicant that the trial magistrate should not have entertained an investigation into whether the respondent had paid off the debt due before the suit was filed, without first allowing the respondent to file a WSD. This requires this court to examine the purpose of s.34 of the CPA in order to establish whether the magistrate had the power to look into that question. S. 34 of the CPA provides as follows:</p> <p>&nbsp;</p> <p style="margin-left:36.0pt;">(1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge, or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit.</p> <p style="margin-left:36.0pt;">&nbsp;</p> <p style="margin-left:36.0pt;">(2) The court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit, or a suit as a proceeding, and may, if necessary, order payment of any additional court fees.</p> <p>&nbsp;</p> <p>The rationale for s.34 of the CPA was succinctly given in <strong>The Registered Trustees of Kampala Archdiocese &amp; Dan Mpungu v. Harriet Namakula, Richard Mugaba T/A Bamu Partners &amp; Auctioneers, Kaggwa Nantamu Mike &amp; G. Wakulyaka; H.C.C.A. No. 1024 of 1997,</strong> which arose from <strong>Harriet Namakula v. The Registrar of Titles, H.C.C.S No 47 of 1996. </strong>In H.C.C.A No. 1024 of 1997, Ntabgoba, J. discussed the purpose of s. 101 and s.34 (now s.35) of the CPA, put together with s.35 of the Judicature Statute (1996), which is now s.33 of the Judicature Act.&nbsp; S.33 of the Judicature Act provides for remedies, generally as follows:</p> <p>&nbsp;</p> <p style="margin-left:36.0pt;">&ldquo;33. The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided.&rdquo;</p> <p>&nbsp;</p> <p>Ntabgoba, J. observed that s.101 (now s.98) of the CPA is an important provision in that it restates the limitless &ldquo;inherent power of this Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.&rdquo; He went on to state that subsection (2) of S.35 (now s. 34) of the Civil Procedure Act is a deliberate provision made to assist the court in its compliance with s.35 (1) of the Judicature Statute, if the Court must, as is the intention of the two provisions, avoid a multiplicity of actions by determining all the matters arising out of the execution of decrees.<br /> &nbsp;</p> <p>Ntabgoba, J. identified some situations in which the provisions of s.35 of the Judicature Statute, 1996 could be employed as follows:</p> <p>&nbsp;</p> <p style="margin-left:36.0pt;"><em>&ldquo;As far as I can understand the law, where in an execution a party to the case assists, connives or colludes with the bailiff, resulting in unlawful execution, then neither the party nor the bailiff can escape liability and the Court then should invoke S.35 (2) of the C.P.A. to avoid a multiplicity of suits so as to settle the matter within the same procedure. Examples are not far to find. They include a situation in which the judgment creditor identifies the wrong property to the bailiff for attachment, where the bailiff is privy to the truth. It also involves a situation in which the bailiff colludes with the judgment creditor to undervalue for sale the attached property. &hellip;&rdquo;</em></p> <p>&nbsp;</p> <p>It is therefore the case that any question that is related to a wrongful or irregular execution falls within the ambit of situations that can be investigated under the provisions of s. 34 CPA. If necessary, the court will consider the investigation as a new suit by virtue of s. 34 (2) CPA. By implication, the court may re-open the suit in order to achieve the ends of justice and prevent the abuse of court process, as it is empowered to do by s. 98 of the CPA.</p> <p>&nbsp;</p> <p>In the circumstances, I do not agree with the argument by counsel for the applicant that the trial magistrate had first to allow the respondent to file a defence before he could go into an investigation whether there were any monies due to the applicant before the decree was obtained. The trial magistrate had before him the equivalent of a new suit in which any question relating to C/S No. 124 of 2005 and the execution therein could be canvassed. All he had to do to clearly show that it was a new suit was to levy fees for it, and that was entirely in his discretion to do so or refrain from doing so. The questions that were raised in the application were therefore properly entertained by the court.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p style="margin-left:9.0pt;"><strong>ii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong><u>Whether the default judgment and decree entered against the respondent was valid.</u></strong></p> <p>In respect of the decree and the execution that ensued, the trial magistrate ruled as follows:</p> <p>&nbsp;</p> <p style="margin-left:36.0pt;"><em>In view of the fact that the plaintiff claimed for a sum not due and owing its (sic) clear that he obtained the subsequent decree with fraud. He even swore an affidavit to the effect that the defendant is truly and justly indebted to him to the tune of 1,900,000/= and that the same was still due and owing at the time of filing the suit. This is not true. &hellip; The claim of shs 1,900,000/= by the respondent plaintiff was manifestly illegal and fraudulent on his part. I am inclined to impute fraud on the part of the respondent/plaintiff as it was not a mistake to still claim for the whole shs 1,900,000/= at the time of execution yet shs 500,000/= had already been paid to him. For (the) applicant under cash receipt No.009 of the respondent&rsquo;s agents dated 3.3.06 paid shs 500,000/= and the application for execution was first made on 16<sup>th</sup> March 2006 without showing payment adjustments.</em></p> <p>&nbsp;</p> <p>In coming to these findings the trial magistrate relied on evidence that had been placed before him in Annexure &ldquo;A&rdquo; to Mr. Wanami&rsquo;s affidavit in support of the application. The annexure comprised of a series of 17 memoranda of acknowledgement of receipt of monies by Pride Bonitas Enterprises Ltd., Jinja Law Office &amp; Co. Advocates and Noor Mohammed. In his affidavit in reply to the application dated 9/09/2006, Mr. Noor Mohammed did not challenge the receipts; in fact he said nothing about them at all. This must had made the trial magistrate come to the conclusion that he/or his agents indeed received the amounts of money stated on the dates named in the receipts. The total amount towards the agreed price of the motor vehicle that had been received as at 22/04/2005, before the suit was filed on 22/12/2005 was shs 17,060,000/=. This left a balance of shs 500,000/= only outstanding, according to the agreement of sale, Annexure &ldquo;B&rdquo; to Mr. Wanami&rsquo;s affidavit dated 22/09/2006.</p> <p>&nbsp;</p> <p>It was the respondent&rsquo;s case before the trial magistrate that he tried to have accounts reconciled with Mr. Noor Mohammed&rsquo;s lawyer. At the behest of Mr. Wafula, on 28/11/06 Mr. Wanami appeared in court to be cross-examined about the averments in his affidavits in support of the application. He then stated as follows:</p> <p>&nbsp;</p> <p style="margin-left:36.0pt;"><em>&ldquo;You induced me when I came to you to explain to you about the receipts. You did not want me to count the money from the time I started paying. You were angry that day. You drove the vehicle by your driver up to the police station where you entered the office of OC CID as I was explaining to OC CID you got up and directed the driver to break down vehicle and you headed for Bugiri. I also boarded a vehicle and headed for home. I got you personally trying to tow the vehicle away. I kept away as you were angry. &hellip;</em></p> <p style="margin-left:36.0pt;"><em>On 3.3.06 I brought the receipts to you and you merely picked them and left for Lira together with my receipts. You came back with the consent document and forced me to sign it. He could not accept reconciling the receipts. He said if I do not accept the document I was going to lose my house. For such fear of loss of my property I signed the document.&rdquo;</em></p> <p>&nbsp;</p> <p>It is unfortunate that the applicant&rsquo;s advocate did not give the respondent a hearing in relation to the amount that was claimed by his client. It was also negligent of the applicant when he did not reconcile his accounts before he filed the suit against the respondent. If he had, perhaps he would have discovered that the respondent had paid almost all that was due to him on account of the contract and this debacle would have been avoided.&nbsp;</p> <p>&nbsp;</p> <p>A &ldquo;decree&rdquo; is defined by s. 2 (c) of the CPA as the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit and may be either preliminary or final. Though the decree that was obtained in this suit purported to be a final decree, it is clear that the matters in controversy between the parties had not been conclusively determined. The applicant had either through a mistake by himself or his advocate, or through deliberate untruthfulness sued for more than he was entitled to.</p> <p>&nbsp;</p> <p>That being the case, I am inclined to agree with the trial magistrate that the acts of the applicant were fraudulent. Osborn&rsquo;s Concise Law Dictionary (1983, 7<sup>th</sup> Edition, Sweet &amp; Maxwell, London) defines fraud as obtaining a material advantage by unfair or wrongful means; it involves moral obliquity. It must be proved to construct the common law action of deceit. Fraud is proved when it is shown that a false representation has been made knowingly, or without belief in its truth, or recklessly, careless whether it be true or false. Fraud may also be constructive and in such cases, equity gives relief against acts and contracts, although untainted by any actual evil design, on the ground of general public policy, or on some fixed policy of the law.</p> <p>The applicant had business records as was demonstrated by the respondent when he produced memoranda upon which the payments he made were accepted by the applicant&rsquo;s employees and advocates. He therefore had no justification for claiming more in the suit than he was entitled to, except perhaps sharp practice. I find that whether it was actual or constructive, the applicant acted in a fraudulent manner when he lodged a suit for more than he was entitled to. The decree that he obtained was therefore null and void, <em>ab initio</em>.</p> <p align="left">&nbsp;</p> <p>&nbsp;</p> <p style="margin-left:9.0pt;"><strong>iii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong><u>Whether the agreement to settle the decree was valid; if so, what was its effect on the decree?</u></strong></p> <p>The agreement to settle the decree was reached on 23/03/2006 between the respondent, counsel for the applicant and the court bailiff. This followed the issue of a warrant for arrest in execution on the same day in which the applicant claimed that the respondent was still indebted to him in the sum of shs 1,900,000/= together with costs of shs 1,611,000/=, i.e. altogether shs 3,511,000/=, but the warrant stated that the total then outstanding was shs 3,514,600/=.</p> <p>&nbsp;</p> <p>It seems that in the consent settlement, the applicant&rsquo;s advocates purported to reduce the decretal amount and costs and they agreed with the respondent that he would pay a total of shs 2,500,000/= consisting of the decretal sum and the advocates&rsquo; costs instead of shs 3,511,000/= as was reflected in the decree and the taxed bill of costs. It was then agreed that the respondent pay shs 500,000/= that day and the balance of shs 2,000,000/= would be paid in 2 equal instalments by 23/04/06 and 23/05/06. It was further agreed that the respondent would pay the bailiffs fees of shs 500,000/= in two instalments on the dates mentioned above. The applicant was to pay his advocates a further sum of shs 400,000/= as costs. For the judgment creditor, M/s Jinja Law Office acknowledged receipt of shs 500,000/= as part payment of the judgment debt in the suit.</p> <p>&nbsp;</p> <p>If the decree had been valid the agreement above would have been a valid one changing the terms of the decree. Since it was filed in court and endorsed by the trial magistrate, it would then be the new decree upon which any execution would be levied. But I have already ruled that the decree in place was obtained fraudulently. And by virtue of the testimony of the respondent when he was cross-examined by Mr. Wafula in the court below, it appears he was coerced into signing the consent settlement. In the face of such illegalities the document could not be the basis of any legal action because illegality vitiates all that follows the alleged illegal act. No court can sanction what is illegal and illegality once brought to the attention of court overrides all questions of pleadings, including any admissions made thereon (<strong>Makula International Ltd. v. Cardinal Nsubuga, 1982 HCB 11</strong>).</p> <p>&nbsp;</p> <p style="margin-left:9.0pt;"><strong>iv)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong><u>Whether the order for stay of execution issued by the trial magistrate on the 27/07/06 was valid.</u></strong></p> <p>The respondent appeared before the trial magistrate on the 26/07/2006 and upon an affidavit in which he averred that he had paid the shs 17,560,000/= to the applicant&rsquo;s advocates but a warrant had been issued against his property to recover shs 3,011,600/=. The trial magistrate issued an order for stay of execution, till further orders of the court. It was contended that the order was improperly obtained because no leave was sought to file the application for it yet the 26/07/06 was a day during the court vacation. Counsel for the applicant was of the view that an application first had to be made to move the court to entertain the application during vacation.</p> <p>&nbsp;</p> <p>I perused the Judicature (Court Vacation) Rules (now SI 13-20). Save for a provision in rule 4 thereof that the court shall not sit to discharge civil business other than such civil business that shall, in the opinion of the presiding judge, be of an urgent nature, I did not find any specific requirement for applications for certificates of urgency. Such applications are normally brought under the provisions of Order 52 rule 1 CPR. All that needs to be proved on such an application is that the matter is urgent. I am therefore of the opinion that if the trial magistrate thought the matter was urgent enough to be disposed of, then he had the discretion to so dispose of it, even without leave first being obtained to do so. There was therefore a valid order for stay of execution but it was issued after the 10/07/2006 when the sale is alleged to have taken place, but before the respondent was evicted from the property under execution.</p> <p>&nbsp;</p> <p>Execution could have remained stayed but on the 18/08/06, I think by some mistake, the Chief Magistrate issued an order for delivery of the land to the purchaser. This compounded the problems in the execution process but it cannot be blamed on either party.</p> <p style="margin-left:9.0pt;">&nbsp;</p> <p style="margin-left:9.0pt;"><strong>v)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong><u>Whether the order for cancellation of the execution was issued with material irregularity or illegality.</u></strong></p> <p>It was argued for the applicant that when the trial magistrate entertained the respondent&rsquo;s claim that he was sued for more than he owed, he thereby indirectly allowed the respondent to give his defence yet a final decree had already been issued against him and executed. Counsel for the applicant was of the view that the trial magistrate ought to have first allowed the respondent to file a defence before entertaining the application.</p> <p>&nbsp;</p> <p>Ordinarily, the procedure for achieving what the respondent achieved by his application under s.34 of the CPA would have been through the provisions of Order 33 rule 11 (now Order 36 rule 11) of the CPR. That provision gives court the power to set aside a decree obtained in default of applying for leave to defend the suit as follows:</p> <p>&nbsp;</p> <p style="margin-left:36.0pt;">&ldquo;After the decree the court may, if satisfied that the service of the summons was not effective, <strong><u>or for any other good cause, which shall be recorded, set aside the decree, and if necessary stay or set aside execution,</u></strong> and may give leave to the defendant to appear to the summons and to defend the suit, if it seems reasonable to the court so to do, and on such terms as the court thinks fit.&rdquo;</p> <p style="margin-left:36.0pt;">&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong>{Emphasis was supplied}</strong></p> <p>&nbsp;</p> <p>Where the defendant opts to adapt this procedure, the trial magistrate would have had to set aside the decree first before considering whether to set aside the execution, if necessary. The reasons for allowing an application (good cause) under the provisions of Order 36 rule 11 are not limited. All the trial court needs to do is evaluate the reason and if it deems it good reason to set aside a decree the court records it and sets the decree aside. If it deems it reasonable to do so, the court would allow the defendant to file a defence in the suit and then proceeded to hear it on its merits. I therefore find that it was not mandatory that the respondent be allowed to file a WSD before his complaints about the proceedings and the execution that ensued could be entertained.</p> <p>&nbsp;</p> <p>In addition, the provisions of Order 33 rule 11 and those of s.34 are not mutually exclusive. A party could opt into either of the two procedures given the needs/expediency of the situation at hand. In this case, there were a lot of anomalies related to the execution of the decree. One of them happened to be the fact that the applicant tried to unjustly enrich himself at the expense of a party who had not filed a defence. Suffice it to summarize it here and state that the rules of procedure are a guide to the orderly disposal of suits and a means of achieving justice between the parties. They should never be used to deny justice to a party entitled to a remedy (<strong>Nassanga v. Nanyonga, [1977] HCB, 352</strong>). The trial magistrate therefore occasioned no illegality or irregularity when he considered the evidence set out before him about the amount that was owed by the respondent before the suit was filed.</p> <p>&nbsp;</p> <p>It was also argued for the applicant that the order to return the property that had been attached to the respondent was illegal because execution had been completed and a return filed in court. With all due respect to counsel for the applicant, his arguments were misplaced. The court could not stay execution that had been completed but it certainly could set it aside. This is apparent from the provisions of Order 36 rule 11 CPR. Court should also set aside any process of court that is vitiated by any illegality or an abuse of the process of court under the provisions of s.98 of the CPA.</p> <p>&nbsp;</p> <p style="margin-left:9.0pt;"><strong>vi)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; </strong><strong><u>Whether the order to return the property to the respondent was illegal and/or occasioned a miscarriage of justice.</u></strong></p> <p>It was the opinion of counsel for the applicant that in such a case the court could not set aside the sale and order a return of the property in issue to the judgment debtor, especially without hearing the buyer out. Counsel submitted that the buyer was a bona fide purchaser of the auctioned property. He relied on the return to court for the submission that the execution was completed and therefore could not be lifted.</p> <p>&nbsp;</p> <p>I closely reviewed the relevant legal provisions and the documents that were filed by the bailiff on the 17/08/2006 as the return of the warrant. The advertisement for sale of the property was placed in Bukedde of 3/06/2006. Auction of the property was to be 30 days from the date of advertisement. The terms of the sale were payment of cash or a bank draft. If the advertisement ran on 3/06/2006, then the day on which the auction should have been held was 3/07/2006. Order 22 rule 64 CPR (which was then order 19 rule 64) provided for the time of sale as follows:</p> <p>&nbsp;</p> <p style="margin-left:36.0pt;"><strong>&ldquo;64. Time of sale.</strong></p> <p style="margin-left:36.0pt;">No sale hereunder shall take place until after the expiration of at least thirty days in the case of immovable property, and, except in the case of property of the nature described in rule 40(2) of this Order, of at least fifteen days in the case of movable property, calculated from the date on which the public notice of sale has been advertised as provided in these Rules; except that in the case of movable property the judgment debtor may consent in writing to a less period.&rdquo;</p> <p>&nbsp;</p> <p>Having advertised the sale, the same could not be adjourned to another day except by following the rules. Order 19 rule 65 (1) then provided for adjournment or stoppage of sale as follows:</p> <p>&nbsp;</p> <p style="margin-left:36.0pt;">&nbsp;&ldquo;(1) The court may, in its discretion, adjourn any sale hereunder to a specified day and hour, and the officer conducting any such sale may in his or her discretion adjourn the sale, recording his or her reasons for the adjournment; except that where the sale is made in, or within the precincts of, the courthouse no such adjournment shall be made without leave of the court.&rdquo;</p> <p style="margin-left:36.0pt;">&nbsp;</p> <p>Rule 65 (2) then went on to provide that were a sale is adjourned under sub rule (1) for a longer period than seven days, fresh public notice would be given, unless the judgment debtor consented to waive it.&nbsp; If the property was sold on 10/07/06 the fresh public notice was not necessary for the sale would have still have been within the time allowed by the rules. I however found fault with the purported adjournment in this case. No reason was assigned for it in the return to court, contrary to rule 65(1) above.</p> <p>&nbsp;</p> <p>There were also other anomalies with the sale that made me question the bona fides of the bailiff. When the bailiff made his return to court, he annexed to it a Photostat copy of a memorandum of acknowledgment of receipt dated 25/07/2006 and issued by M/s Mangeni, Wafula &amp; Co. Advocates, for shs 3,011,600/=. If he indeed sold the property on the 10/07/2006 and the buyer paid cash on that day, as was stated in the agreement of sale, why did the bailiff wait for 15 days before remitting shs 3,011,600/= to the applicant&rsquo;s advocates?</p> <p>&nbsp;</p> <p>This behaviour on the part of the bailiff was suspicious. It appears he failed to dispose of the property within the time specified by the rules. Being placed in that position, the bailiff opted to fabricate documents instead of following the procedures laid down for such sales. In particular, Order 19 rule 77 (1) then provided that on every sale of immovable property the person declared to be the purchaser shall pay immediately after the declaration a deposit of 25 percent on the amount of his or her purchase money to the officer or other person conducting the sale, and, in default of the deposit, the property shall immediately be resold.</p> <p>In addition to the above, the agreement of sale showed that the property was sold for shs 4,700,000/=. The bailiff paid shs 3,011,600/= to the applicant&rsquo;s advocates. What happened to the balance of shs 1,688,400/=? It has been held in numerous decisions of the courts in Uganda that Court Bailiffs are not supposed to pay themselves or anybody else from the proceeds of the sale in execution. According to rule 15 of the Judicature (Court Bailiffs) Rules which were then still in force, a court bailiff shall remit in court all proceeds of his or her execution within seven days of the execution and thereafter submit his or her bill of costs, including his or her fees and disbursement for taxation. In <strong>Harriet Namakula v. Registrar of Titles </strong>(supra) it was held that this rule is mandatory.</p> <p>When he failed to remit the proceeds to the magistrate as well as declare the balance after he paid shs 3,011,600/= to the applicant&rsquo;s advocates, the court bailiff acted contrary to the law. He was also clearly fraudulent. If there was a balance after remitting what was due, then that was to be paid over to the judgment debtor. Since that did not happen, the trial magistrate was for the reasons that he gave in his ruling and for the ones stated here above correct when he set the execution aside. No irregularity or illegality was occasioned by his order, and I find so.</p> <p>As to whether a miscarriage of justice was occasioned when the buyer was not given an opportunity to be heard, I do not agree that it was the trial magistrate&rsquo;s legal obligation to bring the buyer into the dispute over execution. The parties to the suit were those that are before the court in this application. Court could take representations from them, their advocates and the bailiff involved. The record was also available for the magistrate to verify whether all that had been done was within the law and above board. Having established that the trial magistrate did everything that he was required to do in the circumstances; if any injustice was occasioned to the buyer then he had recourse in a separate action, not the application under revision herein.&nbsp; Order 19 rule 71 of the CPR then provided that no irregularity in publishing or conducting the sale of movable property shall vitiate the sale; but any person sustaining any injury by reason of the irregularity at the hand of any other person may institute a suit against him or her for compensation, or (if that person is the purchaser) for the recovery of the specific property and for compensation in default of the recovery.</p> <p>The Court Broker or Court Bailiff has been declared by the Courts in Uganda as an agent of the Court and not of the parties. A court Bailiff has immunity under S.46 of the Judicature Act, so long as he acts lawfully. S. 46 (2) of the Judicature Act provided that an officer of the court or other person bonded to execute any order or warrant of any judge or person referred to in subsection (1) acting judicially, shall not be liable to be sued in any civil court in respect of any lawful or authorised act done in the execution of any such order or warrant. This means that where a Court bailiff acts unlawfully in the execution of his duties, he is not allowed the immunity (<strong>Francis Nansio Micah v. Nuwa Walakira, Supreme Court C/A No. 9 of 1990</strong>). The buyer may therefore have recourse to the respondent, the court bailiff or both.</p> <p>&nbsp;</p> <p>Before I wind up this issue, I find it pertinent to comment about the behaviour of the applicant&rsquo;s advocates during the process of execution. Execution of orders is the duty of the registrar/magistrate and the court bailiff. The advocate has no mandate to actively participate in execution. In this case it seems the advocates were fully and physically involved in the execution of the order as though the court had not engaged a bailiff. When he was cross-examined the respondent, Mr. Wafula opened a can of worms that squirmed out much to his embarrassment. The respondent revealed that while they were at the police station, Mr. Wafula personally ordered the driver of a breakdown vehicle to tow the suit vehicle away in attachment. This behaviour on the part of an advocate was doubt unprofessional. Advocates should desist from personally or physically participating in execution proceedings. Once a bailiff is appointed the advocate should step aside and let the bailiff do his work.</p> <p>&nbsp;</p> <p style="margin-left:9.0pt;">vii)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <strong><u>Whether the applicant is entitled to the remedies claimed.</u></strong></p> <p>The applicant sought for orders that the orders of the trial magistrate be set aside. This would mean that the attachment resumes and the buyer is re-instated in the property.&nbsp; Section 83 of the CPA provides that the High Court may exercise its powers of revision in matters where a magistrates&rsquo; court has exercised a jurisdiction not vested in it in law; failed to exercise a jurisdiction so vested in it; or acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. This court may then make such orders in it as it thinks after the parties are given the opportunity of being heard. However, according to s. 83 (d) CPA the powers of revision shall not be exercised where from lapse of time or other cause, the exercise of such powers would involve serious hardship to any person.</p> <p>&nbsp;</p> <p>The applicant did not prove that the trial magistrate exercised a jurisdiction that was not vested in him. Neither did he prove that he exercised his jurisdiction illegally or with material irregularity or injustice. The applicant is therefore not entitled to any of the remedies that he claimed in his application and it is hereby dismissed with costs to the respondent.</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p>&nbsp;</p> <p><strong>Irene Mulyagonja Kakooza</strong></p> <p><strong>JUDGE</strong></p> <p><strong>14/06/2010</strong></p></div></div></div><div class="view view-download-button view-id-download_button view-display-id-entity_view_1 view-dom-id-803ae3afe7811e6861937ad052cfae69"> <div class="view-content"> <div class="views-row views-row-1 views-row-odd views-row-first views-row-last"> <div class="views-field views-field-field-download"> <div class="field-content"><a href="https://old.ulii.org/system/files/judgment/high-court/2010/122/high-court-2010-122.rtf" target="_blank"><img src="https://africanlii.org/sites/default/files/Download-Button-red.png" width="180"> </a></div> </div> <div class="views-field views-field-field-download-1"> <div class="field-content"></div> </div> </div> </div> </div> Mon, 27 Jul 2015 13:59:42 +0000 Anonymous 17778 at https://old.ulii.org