Hajj Jamada Waligo v Finny Mukasa (Miscellaneous Application No. 855 of 2025) [2025] UGHCLD 122 (8 July 2025)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(LAND DIVISION)**

#### **MISCELLANEOUS APPLICATION NO.0855 OF 2025**

# **ARISING FROM CIVIL SUIT NO.758 OF 2019**

# **HAJJ JAMADA WALIGO :::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS**

**FINNY MUKASA :::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

### **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

#### **RULING ON A PRELIMINARY OBJECTION.**

#### *Introduction;*

**1.** This is a ruling in respect of a preliminary objection raised by counsel for the respondent that the instant application is improperly brought before this court. Both parties made oral submissions which this court has relied upon in the determination of this objection.

### *Background;*

- **2.** The applicant brought this application against the respondent by way of Notice of motion under Sections 33 of the Judicature Act, Sections 98 of the civil procedure act and Order 52 rules 1 and 3 of the civil procedure rules for orders that; - i) An order for discovery doth issue for the parties to jointly open the boundaries and joint survey of land comprised in volume 4598 folio 18 Block 7 Plot 1289 and Vol. 4741 fol. 1 Block 7 Plot 2064 Kibuga land at Kibuye Makindye Division to determine the boundaries of the two plots of land. - ii) That an order be issued that the said exercise be jointly carried out by the said parties appointed private registered surveyors. - iii) Costs of the application be provided for.

#### *Representation;*

**3.** The applicant was represented by Counsel Sebbi Muhammad of M/S Bbale & partners Advocates and legal consultants whereas the respondent was represented by Counsel Perez Malinzi holding brief for Counsel Jimmy Lubale for the respondent of M/S Luhom Advocates.

## *Preliminary objection;*

## Whether the instant application is properly brought before this court;

#### *Resolution and determination of the objection;*

- **4.** Counsel for the respondent submitted that order 10 of the civil procedure rules provides that applications of such a nature are brought by way of summons in chambers not by way of notice of motion as preferred by counsel for the applicant. - **5.** Counsel further submitted that what the applicant seeks for in the instant application is not relevant to the main suit as each and every aspect in respect to the suit has been dealt with up to this point. - **6.** In reply counsel for the applicant submitted that it is true the applicant has no legal interest in the suit land but he holds an equitable interest since he has been in possession for about 25 years. - **7.** Counsel for the applicant further submitted that court should invoke article 126 (2)e of the 1995 Constitution of Uganda and section 98 of the civil procedure act and have the application

determined on merit since it will help ascertain the outcome of the main suit.

#### Analysis by court;

**8.** The Civil procedure rules under order 10 rule 1 that; In any suit the plaintiff or defendant may apply to the court within twenty-one days from the date of the last reply or rejoinder referred to in Order VIII, rule 18(5), of these Rules for leave to deliver interrogatories and discoveries in writing for examination of the opposite parties, or any one or more of those parties, and those interrogatories when delivered shall have a note at the foot of them stating which of the interrogatories each of the persons is required to answer; except that— (a) no party shall deliver more than one set of interrogatories to the same party without an order for that purpose; and (b) interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

- **9.** The procedure under the said order is provided for under order 10 rule 24 which states that; all applications under this order shall be by summons in chambers. - **10.** The applicant brought this application for discovery and inspection provided for under order 10 of the civil procedure rules by way of notice of motion. - **11.** Counsel for the applicant relied on Article 126(2)e of the constitution to have the instant application determined by this court. - **12.** The Civil procedure rules under order 10 provide that the applications of such a nature are brought by way of summons in chambers. - **13.** Parties should take note that Article 126(2)e of the 1995 constitution of the republic of Uganda is not a magic wand in the hands of defaulting litigants and the same article was not intended to wipe out the rules of procedure. - *14.* Where a specific procedure is provided for in law, then the same should be adhered to unless directed otherwise by court. Failure of which, will be rendering the said law redundant.

# *(See; Mathias Lwanga Kaganda vs UEB, Civil Suit No. 124 of 2003).*

- **15.** Courts of law won't be clogged with matters improperly brought just because the party or lawyers deem it fit to file them in a manner, they so desire. Where the procedure is provided for the same should be adhered to unless otherwise directed by a court of competent direction. - **16.** In the premises, this court is of the finding that the preliminary objection raised by counsel for the respondent is hereby upheld by this court. - **17.** Therefore, the instant application stands dismissed with costs to the respondent for being improperly brought before this court.

**I SO ORDER.**

# **NALUZZE AISHA BATALA**

**Ag. JUDGE.**

**08/07/2025**

# **Delivered Electronically via ECCMIS on the 08th day of July**