Dr. Musoke Gukiina v Sudhir Ruparelia and 4 Others (H.C.Miscellaneous Application 117 of 2023) [2023] UGHCLD 129 (19 May 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISC. APPLICATION NO. 0117 OF 2023 (ARISING FROM CIVIL SUIT NO. 0002 OF 2019)

DR. PETER MUSOKE GUKIINA....................

**APPLICANT**

$\mathsf{V}$

- 1. SUDHIR RUPARELIA - 2. ERIEZA LUBOJJE KAGGWA - 3. EPHRAIM NTAGANDA - SPEKE HOTEL 1996 LTD - 5. THE COMMISSIONER FOR LAND REGISTRATION (CLR)

**RESPONDENTS**

## BEFORE: HON. LADY JUSTICE P. BASAZA- WASSWA

## **RULING**

#### Representation:

Mr. Kaddu John for the Applicant.

Mr. Walusimbi Nelson for the 1st & 4th Respondents.

Mr. Kirumira Adam for the 3rd Respondent.

Mr. Sekabira Moses (Sr. Registrar of Titles) for the 5th Respondent.

Introduction:

[1] This is a Ruling in an application brought by Notice of Motion under **Section 33 of**

the Judicature Act1 and 98 of The Civil Procedure Act2, and Order 10 Rules 12 &

14, and Order 52 Rules 1 & 3 of The Civil Procedure Rules3, as amended (CPR).

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$1$ Cap. 13 $2$ Cap 71 $S. I.71 - 1$

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The Applicant; Dr. Gukiina is the Plaintiff in the Head suit, while the $1^{st}$ – $5^{th}$ $[2]$ Respondents are the Defendants therein.

In the Head suit, Dr. Gukiina's action against the Respondents is *inter alia*; for alleged $[3]$ trespass, alleged unlawful eviction, alleged unlawful transfer of interests in land, and alleged destruction of property, trees and developments, in respect of land comprised in Busiro Block 443 Plots 49, 50, 52, 74, 75 and 76 at Kongero in Wakiso District. (Hereinafter referred to as 'the suit lands')

He contends in his suit, inter alia that he is the registered proprietor of Plot 50 and that he is a lawful / bona fide owner of a kibanja holding that measures approximately 1. 287 acres on part of Plots 49, 52, 74, 75 & 76.

#### Grounds of this application:

- [4] The grounds of the present application are: - That the land sale agreement which is in the possession and power of the $i)$ 3rd and 4th Respondents will assist this court in determining whether the 3rd and Respondent lawfully sold the suit land to the 4th Respondent - That certified Land Transfer forms executed by the 3rd Respondent in favour ii) of the 4th Respondent for the land comprised in **Busiro Block 443 Plots 49,** 52, 74, 75 and 76 at Kongero and the Stamp Duty Payment Receipts which are in the possession and power of the 5th Respondent will assist this court in determining whether the 4th Respondent lawfully acquired the suit land

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and whether the 5th Respondent kept proper records of ownership in respect of the suit land.

- That on 10/10/2022, the Respondents were served with a Notice to Produce iii) Documents which they have refused to voluntarily comply with to-date. - The Applicant seeks for the following orders: [5] - i) That the $3rd$ and $4th$ Respondents be directed to make discovery on oath of a copy of the land Sale agreement executed between them in respect of land comprised in Busiro Block 443 Plots 49, 52, 74, 75 and 76 at Kongero. - ii) That the 5th Defendant: The Commissioner Land Registration be directed to make discovery on oath of certified copies of land transfer forms executed by the 3rd Respondent in favour of the 4th Respondent for the land comprised in Busiro Block 443 Plots 49, 52, 74, 75 and 76 at Kongero, and the Stamp Duty Payment Receipts. - iii) That the costs of the application be in the cause.

#### Respondents' answer to this application:

- [6] Only the 1st and 4th Respondents: Mr. Sudhir Ruparelia and M/s Speke Hotel (1996) **Ltd** filed an affidavit in reply, by which they oppose the application. The main thrust of their affidavit in reply is; - That the 4th Respondent is not in possession of many documents owing to 3rd $i)$ party activities where a number of its documents were misplaced, and that the

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only related document accessed by the 4th Respondent are copies of the respective transfer forms signed by the 3rd and 4th Respondents.

- That the Applicant did not raise the question of legality of the sale transaction of ii) the subject land between the 3rd and 4th Respondents in his plaint and this application is a mere afterthought. - That the application does not satisfy the threshold for the grant of the orders iii) sought and is a pure fishing expedition, and is barred by the doctrine of privity of contract, and is an abuse of court process.

### Analysis by Court:

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#### Order 10 Rule 12 of the CPR provides that: $[7]$

'Any party may, without filing any affidavit, apply to the court for an order directing any other party to the suit to make discovery on oath of the documents, which are or have been in his or her possession or power, relating to any matter in question in the suit, and on the hearing of the application the court may either refuse, or adjourn the hearing, if satisfied that the discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion, be thought fit; except that discovery shall not be ordered when so far as the court shall be of the opinion that it is not necessary either for disposing fairly of the suit, or for saving costs'.

#### Order 10 Rule 14 of the CPR provides that [8]

'The court may... order the production by any party to the suit, upon oath, of such of the documents in his or her possession or power, relating to any matter in question in the suit, as the court shall think right; and the court may deal with the documents, when produced, in such manner as shall appear just'.

I have carefully considered the grounds and the arguments for, and against the [9]

grant of this application, and the cited Rules and the law. I find that, although I

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agree with Mr. Kaddu that among the issues for trial in the Head suit is issue No. 5, which is: 'whether the 3rd Defendant lawfully sold the suit land to the 4th Defendant', that issue was framed in the context of the claims by the Plaintiff in paragraphs 6 (1) and (m), and 9 of his third amended plaint. The Plaintiff's claims in those paragraphs are to the effect that the land transactions between the 2nd, 3rd, and 4th defendants in respect of the suit land, are unlawful on account of the latter's alleged total disregard of the Plaintiff's alleged interest and security of tenure as a lawful / bona fide occupant on part thereon'.

[10] In the context of the above, I find that the orders sought for discovery on oath, and for production of the stated documents, to wit: a land sale agreement between the 3rd and 4th Defendants, and the related land transfer forms, are orders that are not necessary for the fair disposal of the Head suit.

#### Decision of Court:

[11] In the result, I decline to make the orders sought, and hereby dismiss this application. The costs shall be in the cause.

I so order,

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P. BASAZA - WASSWA **JUDGE** May 19, 2023

Ruling delivered via email to the parties and on the Judiciary ECCMIS Portal.