Katenda v Kasuuja & 2 Others (Miscellaneous Application 735 of 2024) [2024] UGHCLD 128 (27 May 2024)

# **THE REPUBLIC OF UGANDA**

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

# **(LAND DIVISION)**

**MISCELLANEOUS APPLICATION NO 735 OF 2024**

#### **(ARISING FROM MISC APPLICATION NO 414 OF 2024)**

**(ALL ARISING FROM CIVIL SUIT NO 176 OF 2024)**

**KATENDA JIMMY NSUBUGA:::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**1. TOM KASUUJA KABUYE**

#### **2. VINCENT KATETE**

**3. KALEGEYA PAUL KALEMA :::::::::::::::: RESPONDENTS**

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

#### *Introduction;*

- 1. This is an application by Notice of Motion brought under Section 33 of the Judicature Act, Section 98 and 82 of the Civil Procedure Act, order 46 Rules 1, 2, 8 and Order 9 Rule 12, Order 52 r1& 2 for orders that; - i) That this court reviews and sets aside the order of a Temporary Injunction issued by the Assistant

Registrar on 26th of February 2024 in Misc Application No.414 of 2024 restraining the 3rd Respondent or persons deriving title under him from transferring or interfering with the 1st and 2nd Respondents occupation and use of the property described as FRV KCCA 341 Folio 9 Plot 3, at Rubaga Road, Kampala Central Division, Kampala District measuring 0.1460 Hectares (herein referred to as the suit property).

ii) That the commissioner of Land Registration removes from the certificate of title of the suit land the order of a Temporary injunction issued by the Assistant Registrar on 26th of February 2024 in Misc Application No.414 of 2024 restraining the 3rd Respondent from transferring or interfering with the 1st and 2nd Respondents occupation and use of the suit property.

#### **Alternatively;**

i) That this court sets aside the order of a Temporary Injunction issued by the Assistant Registrar on 26th of February 2024 in Misc Application No.214 of 2024 restraining the 3rd Respondent from transferring or interfering with the 1st and 2nd Respondent's occupation and use of the suit land.

ii) Costs of this Application be ordered to be provided by the 1st and 2nd Respondents.

#### *Background;*

2. The Applicant is currently the registered proprietor of the suit-land and all developments thereon having acquired the same from Equity Bank after it had been mortgaged to Equity Bank by the 3rd Respondent to secure loan facilities. Upon failure by the 3rd Respondent to repay the loan, Equity Bank transferred the suit-land to the Applicant at a consideration of 2,000,000,000/= and he was lawfully registered on the suit-land. An order of Temporary injunction was issued on the 26th day of February 2024 without making the Applicant or Equity bank parties to the Application as parties with interest to the suit-land hence this Application.

# *Applicant's Evidence*

3. The Application is supported by an Affidavit sworn by the Applicant Katende Jimmy Nsubuga who stated as follows;

i) That the Applicant is the current lawful registered proprietor of all the land and developments thereon comprised in land described as FRV KCCA 341 Folio 9 Plot 3, at Rubaga Road, Kampala Central Division, Kampala District measuring 0.1460 Hectares and my registration or proprietorship of the suit land was prior to the issuance of the Order of temporary injunction by the Assistant Registrar on 26th of February 2024 in Misc Application No. 414 of 2024.

ii) That the 3rd Respondent as mortgagor mortgaged in favour of Equity Bank Uganda Ltd as mortgagee the suit property to secure loans/credit facilities advanced to Bushenyi Enterprises Ltd as per the loan and mortgage instruments executed between the 3rd Respondent, Bushenyi Enterprises Ltd and Equity Bank Uganda Ltd. Upon default by the 3rd Respondent and Bushenyi Enterprises Ltd on repayment of the loan facilities, on 11th February, 2024, Equity Bank Uganda Ltd as mortgagee lawfully transferred the suit property to me at a consideration of UGX 2,000,000,000/= and I was

lawfully registered on the certificate of the suit property on 26th February 2024 at 9:04am.

iii) He further stated that without his knowledge or notice and without being made a party or making the registered mortgagee (Equity Bank Ltd) a party, he was shocked to learn that;

- i. The 1st and 2nd Respondents filed in this Court HCCS No. 176 of 2024 between Tom Kasujja and Vicent Kateete vs Kalegeya Paul Kalema. - ii. That the 1st and 2nd Respondents also filed in this court an application seeking a temporary injunction vide Misc Application No.414 of 2024 between Tom Kasuja and Vincent Kateete Vs Kalegeya Paul Kalema. - iii. On the 26th February, the Assistant Registrar issued an Order of a Temporary Injunction in Misc Application No.414 of 2024 restraining the 3rd Respondent from transferring or interfering with the 1st and 2nd Respondent's occupation and use of the suit property.

iv) That without serving the Applicant or the Mortgagee (Equity Bank Uganda Ltd) as affected persons with the Application for a Temporary Injunction or the order issued in Misc Application No 414 of 2024; the 1st and 2nd Respondents lodged and registered on the Applicants certificate of title of the suit land the said order of a Temporary Injunction.

v) That the Applicant is a bonafide purchaser for value of the suit property from the mortgagee namely Equity Bank Uganda Ltd which sold it to realize their mortgage. Therefore, there is no way the Respondents can deprive him or interfere in anyway with the suit property he acquired legally without being afforded an opportunity to be heard.

vi) That the order of a Temporary Injunction issued by the Assistant Registrar on 26th of February 2024 in Misc. Application No.414 of 2024 were passed without regard to or in ignorance of the following material facts;

i. Prior to filing the Application, Equity Bank was the registered mortgagee on the certificate of title in respect of the suit-land having registered two mortgages on 26th November, 2022 and 24th March 2021.

ii. That prior to issuance of the injunction on 26/02/2024 the Applicant was and is still the registered proprietor of the suit property as a bonafide purchaser from the registered mortgagee for value without notice of fraud or illegalities, having been registered at 9:04am on 26th February 2024.

vii) The Applicant further stated that at all material time, before and or after the order of injunction was issued, the Respondents illegally connived to conceal and hide from court the following matters since the Applicant and Equity Bank were not made parties to the suit and therefore were not given an opportunity to defend themselves.

viii) That it was not until the 11th of March of 2024 when the 1st and 2nd Respondents without leave of the court added the Applicant and Equity Bank (U) Ltd on the Plaint; however, by the time the Temporary injunction had already been issued against the Applicant's property on the 26th February 2024 without the Applicant being heard.

ix) That the Applicant as registered proprietor of the suit land is aggrieved by the order of temporary injunction issued in Misc. Application No.414 of 2024 because it is intended to prohibit and prevent the Applicant from dealing with his

property as he desires yet it was issued without the Applicant being given an opportunity to be heard in his defence both to the suit and Application for a temporary injunction affecting his own property.

#### *1st Respondent's Evidence;*

- 4. Tom Kasujja Kabuye, the 1st Respondent replied to the Application through his Affidavit in Reply and stated that the Applicant has no locus to bring this Application for he was not party to it. - 5. The 1st Respondent further stated that at the time of the Main suit and Application for Temporary Injunction, the 3rd and 2nd Respondent were registered on the suit-land and only learnt of the applicant's Registration when they took the temporary injunction order for registration.

#### *2nd Respondent's Evidence;*

*6.* The 2nd Respondent Vincent Kateete through his Affidavit in Reply stated that the Applicant has no locus to bring this Application as he was not party to the Main suit and Application for Temporary Injunction. He also stated that the registration of the Applicant on the suit-land was illegal

and fraudulent. That during the time the Main suit and Application of Temporary Injunction, the suit-land was registered in the names of the 3rd Respondent and 1st Respondent and only learnt of the Applicant's registration on the title of the suit land when they took the temporary injunction order for registration.

## *Affidavit in Rejoinder;*

7. The Applicant in his Rejoinder stated that prior to filing the 1st and 2nd Respondent's main suit and Application, Equity Bank had two mortgages registered on the certificate of title of the suit-land but however Equity Bank was not made a party to the suit land and that by the operation of the law, possession of a certificate of title of the suit land registered in his names is prima facie evidence that he is the lawful owner of the suit-land and any other issues challenging ownership shall be determined in the main suit and not this Application.

## *Representation;*

8. The applicant was represented by Kibuuka Rashid of M/s Dantum Advocates, Mbasa Dennis and Muwanga Isaac of

M/S Alma Advocates for the 1st and 2nd respondent and Obam Andrew for the 3rd respondent. The applicants, 1st and 2nd respondents filed their affidavits and submissions which I have considered in determination of this application.

# *Issues of Determination;*

*i) Whether the Applicant has locus to bring /institute this Application of Review before this Honourable Court?*

*ii) Whether this Application raises sufficient grounds for review?*

# *Resolution and Determination of issues;*

# **1. Whether the Applicant has locus to bring /institute this Application of Review before this Court?**

9. Before proceeding with the determination of this Application, its proper that I first dispose off the Preliminary Objection raised by the Respondents in their respective Affidavits in reply. The Preliminary Objection is in regards to Applicants' locus to bring this Application. - 10. Counsel for the 1st and 2nd Respondent stated in their submissions that the Applicant has no locus to institute the above Application. - 11. Counsel cited **section 82 of the Civil Procedure Act** which states that Any person considering himself or herself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit and **Order 46 rule 1 of the Civil Procedure Rules** which states that Any person considering himself or herself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made,

or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgement to the court which passed the decree or made the order.

- 12. He further cited the case of Mohammed Allibhai v W. E Bukenya, Departed Asian Property Custodian Board, Supreme Court Civil Appeal No.56 of 1996 to support his argument. - 13. Counsel stated that the main suit was filed on 21st February 2024 and the Application which led to the order the Applicant seeks to set aside was made on the same day. That the Applicant was allegedly registered on the suit property on 26th February 2024 way after filing the case. That accordingly, at the time of initiating these proceedings, the Applicant had no interest whatsoever, he could not be made a party and hence lacks locus to institute the instant application before this court. Counsel further cited the case of **Imran Ahmed versus Gapco Uganda Limited; HCMA No. 0492 of 2013** where it was

held that the Applicant lacked legal grievance and it was dismissed with costs.

- 14. Counsel also stated that the applicant made this application for review and set aside orders granted in favour of the 1st and 2nd Respondents in his individual capacity as an aggrieved party. - 15. The Applicant in his submissions in reply stated that he is an aggrieved party as per paragraph 12 of the Affidavit in support of his Application. Counsel for the Applicant cited the case of **Kaloli Tabuta Vs Transroad (U) Ltd Misc Application No.478 of 2019 Arising from Civil Suit No.621 of 2017 where Hon Justice Henry Kawesa referred to an aggrieved party to have been defined in Muhammed Bukeya Allibai Versus W. E Bukenya and Anor, SCCA No.56 of 1996 by Karokora** JSC as any party who has been deprived of his property. - 16. Counsel further submitted that it is undisputed that the Applicant is currently the registered proprietor of the suit land who got registered on the certificate of title of the suit land on 26th February 2024 prior to filing the instant application. The Applicant's argument is that at the time

of filing this suit and Application for a temporary injunction, the Applicant was not registered unto the title and therefore could not be party to the suit or application for the following reasons;

i) The Applicant's predecessor in title had an interest in the suit-land as a registered mortgage who at the time had commenced proceedings to exercise the power of sale of the suit-land, however he was not made a party to the suit of the Application for a temporary injunction. ii) The Respondent's act of registering the injunction on the Applicant's certificate of Title directly affects his interest in the suit-land.

iii) The Applicant's land is affected because the existence of the injunction on the Applicant's certificate of title deprives him of use of his property as he desires and he cannot make at transactions in relation to the suit property.

17. It is further submitted that since it is the Applicant's land which is affected by the injunction, he qualifies as an aggrieved person who has locus to institute an application for review; the Applicant is an aggrieved person because

neither him nor his predecessor in title was party to the Application for a temporary injunction.

- *18.* It is trite law that a preliminary objection raises a pure point of law which is argued on the assumption that all the facts pleaded by other side are correct. It cannot be raised if any fact has to be ascertained by evidence. *(See; Mukisa Biscuit Manufacturing Co. Ltd Vs West End Distributors Ltd [1969] E. A)* - *19.* **Hon. Justice Mubiru in the case of Dima Dominic Poro Vs Inyani Godfrey, Civil Appeal No.17 of 2016** described locus thus, "The **terms locus standi literally means a place of standing. It means a right to appear in court and conversely to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding……….. It is trite that save in public interest litigation or except where the law expressly states otherwise, such as article 50 (2) of** *The Constitution of the Republic of Uganda, 1995* **which confers on any person or organization the right to bring an action against the violation of another person's or group's human rights, for any person to**

**otherwise have** *locus standi***, such person must have "sufficient interest" in respect of the subject matter of a suit, which is constituted by having; an adequate interest, not merely a technical one in the subject matter of the suit; the interest must not be too far removed (or remote); the interest must be actual, not abstract or academic; and the interest must be current, not hypothetical. The requirement of sufficient interest is an important safe-guard to prevent having "busy-bodies" in litigation, with misguided or trivial complaints. If the requirement did not exist, the courts would be flooded and persons harassed by irresponsible suits**

*20.* **Section 82 of the Civil Procedure Act Cap. 71** provides that: Any person considering himself or herself aggrieved— (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order on the decree or order

as it thinks fit. Order 46 rule 1 and 2 of the Civil Procedure Rules S. I 71 also provides that:

*21.* Application for review of judgement. (1) Any person considering himself or herself aggrieved— (a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgement to the court which passed the decree or made the order. (2) A party who is not appealing from a decree or order may apply for a review of judgement notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the appellant, or when, being

respondent, he or she can present to the appellate court the case on which he or she applies for the review. **Section 82 and Order 46 rule 1 limits the locus standi for purposes of review to a person aggrieved by a decision of Court.**

- *22.* Counsel for the applicant in his submissions submitted that the applicant is aggrieved by the order of a temporary injunction that was issued by the Court. - *23.* An aggrieved party was defined in the case of **Mohammed Allibhai v W. E Bukenya and Another C. A 56 of 1996** to include any party who has been deprived of his property. In this case, it was also stated that a third party cannot in general apply for review of an order or a decree in which he or she was not a party. - *24.* The applicant made admission in his sworn Affidavit in support of the Application that he was registered on the certificate of the title of the suit property on 26th February 2024 and the Main suit together with the main Application were filed before his interest in the suit-land. - *25.* As submitted by counsel for the 1st and 2nd Respondent that the order which the respondents obtained did not

deprive the Applicant of his alleged proprietary interest in the suit land, the Temporary injunction was issued to maintain among other temporary reliefs the status quo of the suit land pending the hearing of the main suit. This injunction is intended not to expose the respondent to the wrath of the parties in the main suit and any other third parties until the issues between them are fully investigated by this Court. **There is no harm caused to the applicant in that regard as was held in the case of Imran Ahmed Vs Gapco Uganda Limited HCMA No.0492 of 2015.**

*26.* It is therefore my decision that although the Applicant was not party to the Application, the decision and orders given in Misc Application No 414 affect and bind him as he claims to have an interest in the suit-land. However, I do not see how these orders deprive the Applicant of his proprietary interest. Furthermore, he was made party to the main suit and in my opinion, he is now party to the main suit and the orders which he prays to set aside are binding on him. Therefore, even if he claims to be a third party, he is not an aggrieved party and, in any way, the Temporary injunction is binding on him.

*27.* The Applicant has no legal grievance and therefore lacks locus to file this Application and hence this Application is dismissed with no orders as to costs.

## **I SO ORDER.**

## **NALUZZE AISHA BATALA**

## **JUDGE**

**27nd/05/2024**