Bigyemano v Karugaba (Miscellaneous Application No. 233 of 2023) [2023] UGHCLD 107 (18 April 2023)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.233 OF 2023**

(Arising out of Execution Miscellaneous Application No.264 of 2022) $\mathsf{S}$

(Arising out of Miscellaneous Application No. 19 of 2018)

(Arising out of Civil Appeal No.23 of 2012)

(All arising from Civil Suit No.27 of 2008)

BIGYEMANO YAFEESI:::::::::::::::::::::::::::::::::::

#### **VERSUS**

## JOHNSON KARUGABA:::::::::::::::::::::::::::::::::::

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

### Ruling.

- This application brought by way of notice of motion under the provisions of 15 Section 33 of the Judicature Act cap.13, Section 98 of the Civil Procedure Act cap. 71, and Order 52 rules 1 & 3 of the Civil Procedure **Rules SI 71-1** seeks the following orders; - 1. That the order issued in Miscellaneous Application No. 19 of 2018 be revised: - 2. That the decree in Civil Appeal No.23 of 2012 and the orders in Miscellaneous Application be reconciled; - 3. That the taxed bill of costs vide Land Division Taxation Application No.87 of 2019 against the applicant be set aside; - 4. That the costs of the suit be provided for. 25

Julo

# Grounds of the apollcatlon.

The grounds upon which this application is premised are contained in the affidavit in support thereof deponed by Mr. Biryemano Yafeesi, the applicant wherein he stated inter alia that while the respondent sued him and a one Edward Biraro for trespass in the Chlef Magistrates Court of Klboga Ctril

Sult No.27 of 2OO8, the court found that the applicant herein and Edward Biraro had indeed trespassed onto the respondent's kibanja.

That being dissatisfied with the said judgment, the applicant as well as Edward Biraro appealed against the same in Clutt Appeal No.23 oJ 2072,

10 which was heard by Hon. Iadg Jrtstlce Eva K. Lusutata who in her judgement held that the appeal had succeeded in part, and the orders of the lower court were set aside.

That upon failing to execute the judgment because it had no orders as to vacant possession, the respondent filed an application for review in regards 15 to the order of vacant possession which was granted by this court.

However that the said orders of review seemed to overturn the decision on appeal because it directed vacant possession against the applicant herein who had been exonerated by the appellate decision which was never appealed against.

- That the respondent has since fied Executlon Mlscellaneous Appllcatlon No,254 oJ 2022 in a bid to evict the applicant from his land yet on appeal, it was held that he was rightfully on the land. The respondent also taxed a bill against the applicant herein vide Land Dlulslon Taxatlon Appllcatlon No.87 of 2019 yet the applicant was partly awarded costs in the suit. 20 - That the decision rn Mlscellaneous Appllcatlon No,79 oJ 2018 be revised to reflect the decree in Cdull Appeal No,23 oJ 2O12 since the two directives are in conflict, and the taxed bill of costs against the applicant vide Land Dluislon Taxatlon Appllcatlon No.87 of 2019 be set aside.

The applicant also filed a supplementary affidavit in support of the applicatron wherein he stated that the orders issued by this court in Lllscello,neous 30

Appllcatlon No,19 of 2018 were against him yet he was not a party to the proceedings since he had been exonerated by his appeal vide Cluil Appeal No,23 of 2012 which he filed against the decision of the trial court in the Chlef Maglstrates Court oJ Klbaga Cttlcl Sutt No.27 of 2OOa.

That because the judgment on appeal which found that the suit land belonged to the applicant, and that he was not a trespasser thereon was never challenged by the respondent, the application for review in regards to the orders of vacant possession could not set the same aside.

In addition, that the only way the respondent herein could have challenged the decision on appeal was by way of appealing against the decision in the Court of Appeal, or by applying for review of the judgment by showing that there was an error apparent in the issuance of the judgment on appeal which was not done and that while no appeal was filed, the application for review that was filed was for insertion and issuance ofan order ofvacant possession 10

against the party that was found culpable on appeal, to wit Edward Biraro, and not the applicant herein. 15

Further, that the applicant's non derogable right to be heard which rs guaranteed under the Constitution was violated when the said application for review was entertained without him being a party thereto and the orders issued against him are prejudicing his right to a fair trial and threatening loss

Resoondent's repbt,

of his property.

The respondent opposed the application through his affidavit in reply wherern he objected to the application on grounds that it is not only frivolous, but also misconceived and wanting of merit. 25

He stated that the applicant herein is a successor in title to the mailo land, which he bought from Edward Biraro, and on which it was decreed that the respondent's kibanj a sits thereon.

In addition, that while the respondent has no pending bill of costs against the applicant, there is also none that has ever been taxed against him. 30

The applicant did not hle an affidavit in rejoinder to the averments set out in the respondent's affidavit in reply.

## Representatlon.

5 The applicant was represented by M/s Agaba &, Co. Aduocates while the respondent was represented by M/s Ngote & Co, Aduocates. Both counsel filed written submissions in support of their respective clients' cases, as directed by this court.

## Resolutlon bu court.

I have carefully read and taken into account the submissions of both counsel in resolving this matter, which in the opinion of this court is concerned with the question of reconciling the judgment and orders of this court in Cluil Appeal No,23 of 2072 and the ruling of this court in Mlscellaneous Appllcatlon No.79 of 2018. 10

By way of brief background, the respondent sued the applicant and Mr. Edward Biraro for trespass by the respondent in the Chief Magistrates Court of Kiboga vide Cluil Sult No.27 of 2OO8. 15

In that suit, the respondent sought a declaration that he owned the kibanja on the applicant's and Edward Biraro's land comprised in Slngo Block 55O Dutanlro Sub-county Klboga Dlstrlct having purchased the same from a one Kadali in 1997. He also sought general damages for trespass, special damages for destroyed property, as well as costs of the suit.

In their defence, the applicant and Edward Biraro claimed that the respondent herein was not one of the squatters on the land when the applicant bought the land, and that they had settled all the squatters that were on the land.

They also denied ever destroying the plaintifl's/ respondent's crops, houses and cows. 25

One of the issues that was framed for consideration in the trial court was whether or not the defendants (the applicant herein and Biraro Edward) trespassed on the suit kibanja. The trial Magistrate in her judgment found

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that the defendants had indeed trespassed on the kibanja on the lst appellant's (Edward Biraro) land.

The appeal was heard by court presided over by Lady Justice Eva K. Luswata who having confirmed that the respondent owned a kibanja also noted found

that the respondent herein only owned a kibanja on Edward Biraro's land, and not on the applicant's land.

Thus there was no trespass committed by the applicant herein who court proceeded to award half the costs in this court and in the lower court, while the respondent was awarded costs against Edward Biraro.

- The respondent herein then filed Mlscellaneous Appllcatlon No.19 of 2078 seeking to review the judgement of this court to include an order of vacant possession against Edward Biraro who was the respondent as well as his agents and successors in title in respect of his portion of land comprised in Singo Block 55O Duanlro Sub-countg Klboga l)4strlct. 10 - In its ruling dated 13ft November 2O18, this court noted that upon declaring that the respondent in that case had trespassed on the applicant's (respondent herein) land, court ought to have granted an order of vacant possession. This court then granted the orders sought by the respondent herein against the said Edward Biraro. 15 - 20 For the avoidance of doubt, this court stated that;

'Accordlnglg, an order oJ uacant possess{on lssues agalnst the respondent and hls agents and successors ln tltle, ln respect of the appllcant's portion of land comprlsed ln Slngo Block 55O Duanlro Sub-countg Klboga Dlstrlct.'

The respondent, Mr. Karugaba was also awarded the costs of the application, and punitive damages of Ug, Shs. 2,OOO,OOO/= (Uganda shllllngs two mllllon onlg). 25

The applicant in the instant case avers that the orders of this court in Mlscellaneous Appllcatlon No.79 of 2018 seemed to overturn the judgement of this court in Ciutl Appeal No.23 oJ 2072.

On the contrary, the ruling of this court only supplemented the judgment of this court on appeal. It is evident from the wording of the orders of this court that the order of vacant possession is only applicable to the portion of land belonging to Edward Biraro which was found to harbour the respondent's kibanja, and not the portion of land that belongs to the applicant herein.

Tthis court had already declared in its judgment that the respondent herein was not a kibanja holder on the part of land that the applicant purchased from Edward Biraro.

Indeed nothing in the ruling of this court in Mlscellaneous Appllcatlon

No,19 oJ 2Of8 suggests that the kibanja was extended to the cover the applicant's portion of land that he bought from Edward Biraro since 10

It is therefore irregular and misguiding for the respondent herein to attempt to evict the applicant herein based on the orders of this court in Mlscellaneous Appllcatlon No.79 of 2018 since the said order was made in respect of only part of the land that at the time of the judgement in Ciuil Appeal No23 of 2012 belonged to Edward Biraro and not the portion of land that the applicant herein owned.

Additionally, according to Annexure 'D' of the affidavit in support of the application which is a copy of a notice to show cause why execution should

not issue in Executlon Mlscellaneous Appllcatlon No.264 of 2O22, although the same was filed against Edward Biraro, the same was addressed to the applicant herein. 20

The said notice to show cause indicates that the applicant was summoned as successor in title and is a clear indicator that the respondent herein in error,

intends to enforce the order of vacant possession against the applicant herein based on the orders of this court in Mlscellaneous APPllcdtlon No.79 of 2018, 25

It is the order of this court that any execution made in respect of the same rs irregular since this court restricted itself on the order of vacant possession in respect of the part of land owned by Edward Biraro on whose land the 30

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respondent herein owns a kibanja. It follows therefore that any such eviction against the applicant herein would amount to an abuse of court process.

Further, according to the Annexure 'F' of the applicant's affidavit in support of the application, the bill of costs in Land Dfiislon Taxatlon Appllcatlon

5 No,87 oJ 2O79 rr,akes reference to both the applicant herein and Edward Biraro.

Similarly, the suggestion that the taxation was in respect of both appellants in Cfitll Appeal No,23 of 2012 whereas the same ought to have been only in respect of Edward Biraro, the first appellant.

I am therefore inclined to agree with the applicant that the said bill of costs was taxed contrary to the decree and orders of this court in Cluit Appeal No.23 oJ 2012 under which the applicant herein had been awarded costs. 10

In the circumstances, this application succeeds and is hereby granted in the following terms;

- 15 7. The order of vo;co,rrt possession lssued bg thls cour-t ln Mlscellaneous Appllcatlon No,79 of 2O18 uas ln respect oJ the land belonglng to Eduard Blraro on whlch thls court under Clvll Appeal No.23 of 2012 found that the resPondent hereln has a klbanJa lntetest but not the appllcant's portlon of land; - 20 - 2. A boundary openlng exerclse shall be conducted bg a court appolnted suruegor wlthln a perlod of 6O dags to establlsh the extent of the respondent's klbanJa on part of the land belonglng to Edutard Blraro; - 25 - 3, The taxatlon ofthe blll oJFcosts ln Taxatlon Appllcatlon No.87 of 2019 ls herebg set aslde and should be taxed afresh ln respect of Edward Blraro o'nd not the appllcant hereln; - 30 4. Each partg to bear lts ourn cosf,s.

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**Miscellaneous Application No.234 of 2023** for an *ex-parte* order staying the execution, and *Miscellaneous Application No.235 of 2023* for stay of execution of the orders of this court in *Miscellaneous Application No.19 of* **2018** are overtaken by events.

$\mathsf{S}$

I so order.

$10$ Alexandra Nkonge Rugadya

Judge

18th April, 2023

Delivered by each Unberg $18|4|2023$