Bamweyana and 2 Others v Ssimbwa and Another (Miscellaneous Application No. 2108 of 2022) [2022] UGHCLD 237 (14 December 2022)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

# (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.2108 OF 2022**

(Arising from Miscellaneous Application No. 711 of 2022)

(All arising out of Miscellaneous Cause No. 105 of 2021)

### 1. BAMWEYANA CHARLES

- 2. NAKAYENGA BENNAH - 3. NDAGIRE ROBINAH::::::::::::::::::::::::::::::::::::

$\mathsf{S}$

### **VERSUS**

1. SSIMBWA RICHARD

COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

#### Before: Lady Justice Alexandra Nkonge Rugadya.

# Ruling.

- 15 The applicants through their lawyers *M/s Kafeero & Co. Advocates* filed this application under the provisions of Section 33 of the Judicature Act cap.13, Section 98 of the Civil Procedure Act cap.98, and Order 44 rules 2, 3, & 4 of the Civil Procedure Rules S. I 71-1 seeking orders that; - 1. The applicants be granted leave to appeal against the amended ruling, and orders of this court dated $8^{th}$ . September 2022 vide HCMA No.711 of 2022, arising from Miscellaneous Cause No.105 of 2021; - 2. The costs of the application be provided for.

### Grounds of the application:

The grounds upon which the application is premised are contained in the affidavit in support deponed 25 by the 1st applicant Mr. Bamweyana Charles who stated that on 8th September, 2022, this court delivered its amended ruling in *Miscellaneous Application No.711 of 2022* wherein it ordered that the applicants' caveat on land comprised in **Kyadondo Block 1330 land Bunga** be vacated, and further ordered the applicants to pay *Ug. Shs.* 30,000,000/= (*Uganda Shillings thirty million only*).

That the applicants being aggrieved with the said ruling have since filed a notice of appeal against the 30 decision in Miscellaneous Application No.711 of 2022, (annexture C and D). The applicants also filed a letter requesting for the record of proceedings of this court.

They claim that have a substantive, bonafide, and arguable case with sufficient grounds of appeal which merit judicial consideration by the Court of Appeal therefore it is in the interest of justice that they be granted leave to appeal against the orders of this court in Miscellaneous Application No.711 of 2022.

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$\bullet$ $\mathcal{L} = \mathcal{L} \cup \mathcal{L}$ $\mathcal{L}_{\text{max}}$

$\pmb{\cdot}$

$\mathcal{S} = \mathcal{S}_0$ , we have $\mathcal{S} = \mathcal{S}_0$ . The set $\mathcal{S}_0$ is a set of $\mathcal{S}_0$ . $\epsilon = -\infty$ $\mathcal{L}_{\mathcal{A}}(x) = \mathcal{L}_{\mathcal{A}}(x)$

None of the respondents opposcd thc application despitc thc fact that service of court process was on 24th Oclober,2022 effcctcd on cach through their counscl, Ifr/s Kabega Bogezl 6. BtJke'rg.,. Adaocatea. The said firm acknowlcdgcd receipt thereof but did not filc a rcply.

Thc application thcrcforc stands unchallcngcd.

5 In considering this application I have carefully read thc plcadings, evidencc and submissions ofcounsel, the details ofwhich are on the court record, and which I have taken into account in considering whether or not this application mcrits the prayers sought.

Sectlon 76 of the clvll Procedute Act cd.p.77 and Order 44 of the Clull Procedute Rules S.f 7I-f spolls out the orders from which an appeal lics as of right. Undcr Sectlon 76 (1) (a), an order madc

10 undcr the Act, imposing a finc or directing an arrcst is onc from which thcrc lics an appeal as oI right.

ln thc instant casc, this court issued an order dcclaring the applicants as having actcd in contempt of the orders of this court in ,lttlscel&aneous Appllcatloa l,lo.7O5 o.f 2O21 by lodging a caveat on the suit land after thc same had bccn rcmovcd by this court.

15 Court also imposcd a finc of Ug. Srrs. 3O,OoO,OOO/= (Ugend.a shllllngs thlrtg mllllo onl, and directed the Commissioncr l,and Rcgistration to immcdiately vacate the caveat on the suit land. The applicants being aggricvcd with this ruling now scck lcavc of this court to appcal from thc ruling.

Given that a linc was imposcd by this court, such an ordcr falls within the ambit of Sectlon 76 (1) (a), that is, orders from which an appeal lies as of right, l'lowcver an order for rcmoval of a caveat is not listed among the said ordcrs and would require thc sanction of this court in respcct to an appeal.

20 It is not in dispute that the applicants have since liled a notice oi appeal and also requested for a copy of the record of proceedings. What is not clear howcver is gr'hether or not the record of proceedings has since been availed to them.

In the circumstances, this application is hereby allowed, and the applicants are granted leave to appeal from the ordcrs of this court.

25 No orders as to costs

I so order Alex.,.ndro. Nkonge

Judge

30 74t^ December 2022.

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