Kalibbala and Another v Mwebe (Miscellaneous Cause 147 of 2023) [2023] UGHCLD 421 (20 November 2023)

## **THE REPUBLIC OF UGANDA**

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

## **(LAND DIVISION)**

#### **MISCELLENEAOUS CAUSE NO. 147 OF 2023**

## **1. KALIBBALA RUTH**

# **2. KALIBBALA GRACE ::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

# **MWEBE ISAAC ::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

#### *Introduction;*

*Ms. Kalibbala Ruth and Ms. Kalibbala Grace* (*hereinafter referred to as the Applicants*) brought the present application against **Mr. Mwebe Isaac** *(hereinafter referred to as the Respondent) by* way of notice of motion under Order 52 Rules 1 and 3 of the Civil Procedure Rules for orders that;

> a) An order directing severance of a joint tenancy on land comprised in *Kibuga Block 8 Plot 681* land at Mengo (hereinafter referred to as the suit land) registered in the names of the Applicants and the Respondents.

- b) An order for sub-division of the suit land to parcel off the interest of the Applicants from the severed title of the parties. - c) An order of vacant possession to put the Applicants into ownership of the severed interest by forceful removal of all or any occupants thereof. - d) Costs of the application.

# *Background;*

The Applicants are registered proprietors of land comprised in Kibuga Block 8 Plot 681 Land at Mengo together with the Respondent as joint tenants. The 1st and 2nd Applicants without the consent of the Respondent a co-registered proprietor, allegedly sold part of the land amounting to 17 decimals to a one Mugume Leeman who is now desirous of surveying to acquire a certificate of title for the portion that he allegedly purchased out of the suit land. It is alleged that the Respondent refused to consent to the subdivision of the land by the Applicants urging that the suit land is family land on which they have been raised and forms the only known land of the Kalibala family. It

is against this background that the Applicants bring this suit before this court.

# *Applicant's evidence;*

As can be discerned from the pleadings of the parties, the Application is supported by 3 affidavits deponed by *Ms. Kalibbala Ruth, Ms. Kalibbala Grace,* and *Mr. Mugume Leeman* which set out the grounds for the application briefly are as follows;

- i) That the Applicants and the Respondent are the registered proprietors of Kibuga Block 8 Plot 681 Land at Mengo as joint tenants. - ii) That the Applicants have since sold the portion of the land to wit 17 decimals to Mr Mugume Leeman thereby termination the four unities of joint tenancy thus a need to separate interests. - iii)That the Respondent has unjustifiably withheld consent to severance and the sub-division of the said land to enable the purchaser to transfer his land into his names - iv) That it is in the best interest of justice and equity that this application be granted.

# *Respondent's evidence;*

The application is responded to by an affidavit in reply deponed by *Mr. Mwebe Isaac* the Respondent which briefly states as follows;

- i) That the suit land was purchased by their father as family land and registered in the Applicants and Respondent's names and that they agreed that it was family land. - ii) That the Applicants illegally sold part of the land amounting to 17 decimals to a one Mr. Mugume Leeman without consulting the rest of the family. - iii)That the entire land measures approximately 25 decimals and that since the family members are 8 each one of them is entitled to approximately 3.125 decimals. - iv) That the Applicants have on several occasions tried to force the rest of the family to sell their portions.

v) That the family held a meeting with Kampala police officers who advised them not to sell unless all parties were given their respective shares.

## *Representation;*

The Applicants were represented by *Mr. Mugisha Akleo* of M/s GM Kibirige & Co. Advocates whereas the Respondent was represented by *Mr. Mulumba Rashid* of M/s **Mukibi & Kyeyune Advocates**. Only the Applicants filed submissions which I have considered in the determination of this application.

# **Issues for determination;**

- i) Whether the suit is properly before this court? - ii) Whether the suit land is held in joint tenancy by the Applicants and the Respondent? - iii)Whether there are grounds that merit severance of joint tenancy? - iv) What are the remedies available to the parties?

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

## **Issue 1;** *whether the suit is properly before this court?*

As a general rule, under section *1 (x) and 19* of *The Civil Procedure Act, cap 71*, a suit refers to any civil proceedings commenced under the rules, as such the on how suits are instituted is set out in various modes prescribed under *The Civil Procedure Rules SI 71-1* or such other enabling law that sets out the various modes of instituting a suit, undoubtedly, the rules committee must have had a purpose while determining the matter expeditiously having due regard to the circumstances of each case brought before the court. The various modes of instituting suits cannot be used by parties at any time or any time without considering the appropriateness of the mode in the given circumstances. In other words, court users are not at liberty to utilize whichever mode they feel like because they feel it is the best way their matter can be handled quickly.

As stated earlier, *Section 19 of the Civil Procedure Act, cap 71*, provides that every suit shall be instituted in such manner as may be prescribed by the rules. The rules referred to in this section are the rules and forms made by the rules committee to regulate the procedure of courts in this case the Civil Procedure Rules. The Civil Procedure Rules are so detailed when it comes to modes of instituting suits in courts. However, one order stands head and shoulders above all the rest and that is Order 4 rule 1 of the Civil Procedure Rules.

**Order 4 rule 1** of the *Civil Procedure Rules, SI 71-1*, provides that "every" suit shall be instituted by presenting a plaint in that court. It is clear that the only mode of instituting suits is by way of plaint except where the law provides otherwise. There are other specific circumstances provided for by law such as Originating summons and petitions. **(See General Parts (U) Ltd and Ors V NPART [2006] UGSC 3).**

This does not indicate that a plaint will be used in every lawsuit; rather, a plaint is the proper method in cases with triable issues and precise pleadings and proof required under the form of evidence. Regarding the notice of motion, it is typically utilized in applications and in cases where the law specifically permits them as a means of initiating a lawsuit, which are also referred to as miscellaneous causes. An example of one of these would be an application for prerogative orders through judicial review. (Refer to Civil Procedure Rules Order 52.), In addition, where a statute provides for an application to the court but does not specify the form in which it is to be made and the rules do not expressly provide for any special procedure, the application may usually be made by notice of motion. **(See St Benoit Plantation Limited V Jean Emile Adrien Felix (1954) 21 EACA 105.)**

That said, even with the allowance of using a notice of motion in several circumstances litigants and their lawyers should be vigilant when using it to commence a suit by putting into consideration several factors such as the mode of evidence and the nature of issues in the case otherwise they will be faulted at the procedure.

In the instant case, on the 8th day of November 2023, I carried out a locus visit to the suit land located at Mengo, Rubaga in accordance with direction 3 of the Chief Justice's Practice Directions No.1 of 2007. Present at the locus visit were the following;

- i) Mr. Akleo Mugisha Counsel for the Applicants - ii) Mr. Kisira Dick Counsel for the Respondent - iii) Mrs. Kalibala Ruth the 1st Applicant - iv) Mrs. Kalibala Grace the 2nd Applicant. - v) Mr. Mwebe Isaac the Respondent.

At the locus visit, I made the following observations; The suit land is developed with rental units that are occupied by different people including; Mr. Kalibala (husband to the 2nd Applicant, father to the 1st Applicant, and the Respondent), the Respondent, 1st Applicant's and Respondent's sisters, other relatives, and other tenants we found to be occupants on the suit land, the said persons are not party to the present Application and as earlier noted, the suit land being family land, any order that this court might make in the present Application supported by Affidavit Evidence in which there is a semblance of a purported contested sale, would in the opinion of this court have adverse effects on the rights of such unheard family members who for whatever reason might be condemned unheard and this would go against their non-inviolable and non-derogable right to fair hearing as enshrined under our constitution and other international instruments to which Uganda is a state party. My proposition is fortified by the Supreme Court decision in **Re Christine Namatovu Tibaijjukira [1992-93] HCB 85**, where the court held that; -

i) *"The administration of justice should normally require that substance of disputes should be investigated and decided on the merits……..'' (Sic) Also see Tuhaise, JCOA ( as she then was) in Stephen Musuhukye & Anor' –vs- Faustine Ntambara, Court of Appeal Civil Appeal No. 16 of 2012.*

There are triable issues on how the registered proprietors to the suit land ended up being the registered proprietors on the certificate of title, There are questions on who legally purchased the suit land, whether there is a resulting trust, what the status of the occupants found on the land as I have highlighted herein above, such as case would necessitate a considerable amount of evidence and having all the appropriate parties now not before this honorable court properly brought before the court by whoever thinks is the legitimate owner of the suit land.

I came to the conclusion that this matter goes way beyond mere severance of the joint tenancy and as such it cannot be determined in an application of this nature. There were so many triable issues that the court could only resolve upon hearing evidence from various sources which could not be handled in this Application.

In the premises, it is the finding of this court that justice demands that the present application is improperly before this court, and given the blood ties existing between the main parties to it, I find that this is an appropriate case in which this court hereby exercises its discretion to order that the entire Application is hereby dismissed with no orders as to costs.

**I SO ORDER**.

## **NALUZZE AISHA BATALA**

## **JUDGE**

**(20th -11-2023)**