Katunku & 8 Others v Hashim & Another (Miscellaneous Application 94 of 2024) [2024] UGHC 816 (4 September 2024)

Full Case Text

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# **MISCELLANEOUS APPLICATION NO. 94 OF 2024**

(ARISING FROM CIVIL SUIT NO. 23 OF 2024)

- 1. KATUNKU EDWARD - 2. KATUNKU MILICENT - 3. KAABYA NICHOLSA - 4. MWATI PAUL - 5. BULAGE RUTH GIFT :::::::::::::::::::::::::::::::::::: - 6. KANTUNKU ZEPHANIA - 7. NAMUNYONJO JOSEPH KATUNKU - 8. GIMBO EDITH MARY KATUNKU - 9. GIMBO PAMELA

## **VERSUS**

- 1. HASSAN HASHIM - 2. MBALE CITY ::::::::::::::::::::::::::::::::::::

#### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

#### 1. Introduction:

- This Application arises from Civil Suit No. 23 of 2024 wherein the $2.$ 1st Respondent/Plaintiff sued the 2nd Respondent / Defendant for- - (a) A declaration that the defendant's premises/property at Plot $33/35$ Pallisa Road is in a dilapidated/ unhealthy state beyond renovation with poor sanitation facilities unfit for human habitation; - (b) A declaration that the defendant's premises/property at plot $33/35$ Pallisa Road is dangerous and unfit for human habitation; - (c) An order for demolition of the said property/structure;

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- (d) An order for submission of new building plan for approval by Mbale city Physical Planning committee; - (e) Costs of the suit; - (f) Any other relief that court deems fit. - 3. However, before the defendant could file his written statement of defence, the parties entered into a consent and all the above prayers were consented upon which subsequently led to the demolition of the structure on FRV MBA 155 Folio 22 plot 33/35 on Pallisa Road in Mbale City hence, this Application. - 4. This Application was brought by way of Notice of Motion under section 82 of the Civil Procedure Act Cap 282, section 33 of the Judicature Act Cap 16, Order 46 rule 1 of the Civil Procedure Rules S. I No. 71-1 for orders that- - (a) The consent judgment in Civil Suit No. 23 of 2024 be reviewed - (b) The orders in Civil Suit No. 23 of 2024 be set aside - (c) Declaration that the demolition of the applicants' building was illegal and uncalled for. - (d) Costs of this application be provided for. - 5. The Application was supported by the affidavit sworn by the 1st Applicant and briefly averred that- - 6. The Applicants filed Civil Suit No. 73 of 2022 in the High Court at Mbale against the 1st Respondent among other orders for permanent injunction, cancellation of the certificate of title comprised in registered land formerly described as LRV 428 Folio 14, Plot 33/35 Pallisa Road, Mbale City located at Hospital Cell, North Central Parish, Northern City Division, Mbale City which the 1st Respondent and others got themselves registered fraudulently and the matter is pending hearing. - 7. The Applicants contended have been in possession of the suit property since 1986 to date save for the demolition that happened on the 24th May, 2024. He added that the suit property was

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allocated to their mother Edith Mary Katunku and lived on the same with them till she died in 2019.

- 8. That a one Matovu fraudulently obtained a lease hold certificate of title and attempted to evict the late Mary Edith Katunku with her family but their mother successfully challenged the title and the eviction in the High Court of Mbale. - 9. The Applicants averred that when they learnt of the $2^{nd}$ Respondent's request to demolish the building on Plot 33/35 Pallisa Road, Mbale located at Hospital Cell, North Central Parish, Northern City Division, Mbale City, they immediately wrote and informed the Town Clerk of the 2nd Respondent that the building to be demolished are subject to court proceedings vide Civil Suit No. 73 of 2022. The Applicants attached a letter dated 1st August, 2023 which was written to the Town Clerk of Mbale City Council to support their averment. - 10. However, the $2^{nd}$ Respondent ignored the said letter and decided to connive with the $1^{st}$ Respondent to file a suit against him seeking for s demolition order which they hurriedly entered into a consent judgment and demolition orders were granted by the Assistant Registrar of this court without visiting the locus to establish who was in possession of the property. - 11. The Applicant contended that after consenting, the Assistant Registrar hurriedly endorsed the consent judgment on $3rd$ of May, 2024 and immediately issued a demolition order. The Applicants wrote to the Assistant Registrar pointing out the irregularities and illegalities in the order upon which she summoned all the concerned parties but the Respondents though duly served, refused to appear save for the $1^{st}$ Respondent's Advocate who asked for an adjournment. - 12. The $1^{st}$ Applicant stated that their counsel pleaded with the Assistant Registrar to adjourn the matter to the next day or in

alternative to grant an administrative interim order to stay execution of the orders but the Assistant Registrar declined and adjourned the matter to 4/06/2024. However, before the matter came up on the adjourned date, on $24^{th}/5/2024$ at 4: 00 am the Applicants were awakened by the goons in the company of the police and ordered them out of the houses and by use of goons and excavators demolished the buildings and all their properties and those of their tenants were destroyed.

- 13. It was further averred by the Applicants that they had never received any notice from the $2^{nd}$ Respondent informing them that their building was in an inhabitable state or that it was causing nuisance and yet the 2nd Respondent was aware that the Applicants were in possession of the suit property and should have sued them but instead decided to sue the 1st Respondent only to achieve their intention of illegally evicting them. - 14. The Applicants state that they are aggrieved by the consent judgment and orders of demolition that were entered without their knowledge and consent as the occupants of the suit property and in disregard of the suit pending before this honorable court. - 15. The Applicants added that they adduced evidence to show court that the buildings subject to demolition were the subject matter in Civil Suit No.73 of 2022 which is new and important evidence that court had no knowledge of since it did not visit the locus in quo. - 16. It was also contended by the Applicants that it is now settled law that local governments cannot enter into consent judgments without the consent or approval of the Attorney General and this particular order was executed without the consent of the Attorney General hence the consent was null and void.

## 17. Affidavit in reply by the $1^{st}$ Respondent

18. The 1st Respondent in his affidavit raised three preliminary objections to the effect that this application raise grounds that are

untenable in law as it has been overtaken by events, that the application is supported by an incurably defective affidavit which ought to be struck out and the application be dismissed and that this application does not disclose any reasonable cause of action against the 1st Respondent.

- 19. In further reply the 1st Respondent averred that the allegations of fraud are unfounded because he is not aware of the Applicant's claim since he purchased the suit property from a registered proprietor. - 20. Therefore, being the registered proprietor, he was sued by the 2nd Respondent in the main suit for a tort of nuisance as a result of dilapidation of the structure declared beyond renovation, unfit for human habitation and for demolition on grounds of public health. - 21. Whereupon he realized that the said property had been on public health condemnation since 1974 before he obtained ownership and when he was sued in the criminal case, he pleaded guilty since it was correct that the structure was too unfit for human habitation and the same had been condemned by the Health Authorities since 1974. - 22. The $1^{st}$ Respondent averred that he consented to Civil Suit No. 23 of 2024 because it was a fact that in case of any collapse and loss of life and property, he would be condemned by the $2^{nd}$ Respondent and Health authorities as well as security stake holders. - 23. He also stated that it will be a greater injustice if this application is granted since the purpose of the consent no longer exists and is over taken by events.

#### 24. Affidavit in reply by the $2^{nd}$ Respondent.

25. The $2^{nd}$ Respondent also in his affidavit in reply raised three preliminary objections to wit- that the Applicants have no locus *standi* to bring this application, that the Application is misconceived at law and devoid of merit and the same has been

overtaken by events and that the application does not disclose any new evidence to warrant a review by this honorable court.

- 26. In his further reply, the $2^{nd}$ Respondent averred that he was not a party to Civil Suit No. 73 of 2022 and thus had no knowledge of the same. - 27. He stated that the suit property had been condemned for substantial development under the Public Health Act Cap 281 since 1970 despite the continued possession of the same by the late Edith Mary Katunku. - 28. The $2^{nd}$ Respondent contended that there has never been a request for permission to demolish by the 1st Respondent made to the 2nd Respondent but rather, the demolition was subject to a court order vide Civil Suit No. 023 of 2024 in which court decreed a demolition order against the property in FRV MBA 155 Folio 22 plot 33/35 Pallisa Road in Mbale City. - 29. He said the consent judgment was entered between the 1st Respondent and the 2nd Respondent because Hassan Hashim was the registered proprietor of the suit building which was dangerous, a nuisance to the general public and unfit for human habitation. - 30. The 2nd Respondent also averred that the consent agreements that require the approval of the Attorney General under the law are those that do impact on or have an effect on the expenditure of public funds and the matter at hand was not one of them. - 31. It was further averred by the $2^{nd}$ Respondent that the status quo is that there is nothing on the suit land and the orders of setting aside the orders which the Applicants are seeking will lie in a vacuum. - 32. He added that the application does not disclose any new or important evidence to warrant a review and that this application has been brought without merit and the same should be dismissed with costs to the Respondents.

#### 33. Legal Representation

- 34. Counsel Were Safiyu represented the Applicants, Counsel Wasige Safe represented the 1st Respondent and Serugendo Joshua for the Attorney General represented the 2nd Respondent. - 35. Submission - 36. This application proceeded by way of written submissions and all the parties complied. I am grateful for their detailed submissions and I will consider them in the determination of this ruling.

# 37. Issues for this court's determination

- 38. According to the Applicants' submission, he raised the following issues- - (a) Whether the Application is properly before the court? - (b) Whether the demolition procedure was lawful? - (c) Whether the $2^{nd}$ Respondent's affidavit in reply is properly before court having been filed out of time without leave of court? - (d) Whether the 2nd Respondent's Plaint in HCCS No. 23 of 2024 leading to a consent order was lawful without involvement of Attorney General? - (e) Whether the Applicants have sufficient grounds to review and set aside a consent judgment in Civil Suit No. 23 of 2024 - (f) What remedies are available to the parties? - 39. Issue No.1: Whether the Application is properly before the court? - 40. Counsel for the Applicants submitted that the general principle of law is that court after passing a judgment it becomes functus officio and cannot revisit the judgment or purport to exercise a judicial power over the same matter. However, a court may review its own judgment although the same does not apply to the Assistant Registrar which is the reason why the matter was referred to this court. He cited Order 50 rule 7 of the CPR to support his submission.

- 41. Counsel for the 1st Respondent on the other hand submitted that the improper execution does not invalidate a court verdict or cause review. He argued that the 2nd Respondent acted both by virtue of statutory powers to erase a dilapidated structure which has been condemned by health authorities since 1975. He argued that the 1st Respondent was validly sued as the registered proprietor under section 59 of the Registration of Titles Act and the presence of the Applicants in the head suit was irrelevant since they were at sufferance. - 42. Counsel further submitted that section 82 of the Civil Procedure Act Cap 282 and Order 46 rule 1 provides for an aggrieved party but the Applicants are not aggrieved since they are neither registered owners nor in possession at the time of filing of this Application.

#### 43. The law Applicable

44. Order 50 rule 7 of the Civil Procedure Rules provides that-

If any matter to the Registrar to be proper for the decision of the High Court the registrar may refer the matter to the High Court and a judge of the High Court may either dispose of the matter or refer is back to the registrar with such directions as he or she may think fit."

45. Section 82 of the Civil Procedure Act Cap 282 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 judgment 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." 46. Order 46 rule 1 (a) & (b) of the Civil Procedure Rules SI.71 provides that-

#### herself himself or considering "Any person $aggrieved$

(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 $\frac{1}{2}$ 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 judgment to the court *which passed the decree or made the order.*"

## 47. Determination of court

- 48. This Application arise from the decision which was made in Civil Suit No 23 of 2024 between the 1st Respondent and the 2nd Respondent and led to the demolition of the property in dispute. The application was referred to this court by the Assistant Registrar as required by the law. - 49. As stated above, the Applicants were not parties to Civil Suit No. 23 of 2024 but the law above quoted allows parties who consider themselves aggrieved with any decision of court to which they were not parties, to institute their matters by way of review. - 50. Therefore, to establish whether this application is properly before this court, I have to determine whether the Applicants are parties aggrieved with the decision made in Civil Suit No. 23 of 2024.

- 51. Under paragraphs 4 and 5 of the affidavit in support, the Applicants averred that they have been in possession of the suit land since 1986 to date save for the demolition of the property which happened on the 24th of May, 2024 the property in issue having been allocated to their late mother Edith Mary Katunku. - 52. The above fact was also known to the Plaintiff in Civil Suit No. 23 of 2024 (Mbale City) according to paragraph 9 of the affidavit in support and a letter dated 1st of August, 2023 wherein the Applicants through their lawyers of Mutembuli & Co. Advocates wrote to the Town Clerk, Mbale City Council and informed him about the pending suit in respect of the suit property which the 1st Respondent had applied to be demolished. - 53. The pending Civil Suit No. 73 of 2022 was also known to the 1st Respondent who had even filed his written statement of defence in respect of the same. - 54. The occupation of the Applicants' in the suit land was also known to the $2^{nd}$ Respondent even before the above stated letter was written to it as per paragraph 6 of its affidavit in reply. - 55. Consequently, according to the averments advanced by the parties in their affidavit evidence, it is evident that the Applicants are parties aggrieved with the decision which was made in Civil Suit No. 23 of 2024. Hence, this application is properly before court. - 56. Issue No.2: Whether the demolition procedure was lawful? - 57. Counsel for the Applicants submitted that Article 26 (1) of the Constitution of Uganda protects people's right to property and it provides that "Every person has a right to own property either individually or in association with others. - 58. Counsel argued that paragraph 4 of the Constitution (Land Eviction) (Practice) Directions, 2021 (under Article 33 (1) (b) of the Constitution eviction means "the removal of a person from possession of a proprietary interest through valid court order.

- 59. He contended that paragraph 9 of the Constitution (Land Evictions) (Practice) Directions 2021 makes it mandatory for issuance of Notice of eviction or demolition to parties to be affected by an eviction. - 60. Counsel further cited section 9(1) of the Practice Directions 2021 and submitted that whereas the law provides for such notice to be issued in 90 days to the occupants in the suit property, the said order was issued on 3rd of May, 2024 and the demolition was conducted on 24th of May, 2024 just within 14 days from the day it was issued by court which was a breach of rules and amounted to violation of the Applicants' right to property protected under Article 26 of the Constitution rendering the demolition illegal. - 61. Counsel for the $2^{nd}$ Respondent submitted that the Applicants have no locus to challenge this procedure because they were not parties to HCCS No. 23 of 2024 which led into the consent judgment. He added that the Applicants were aware of the existence of Civil Suit No. 23 of 2024 but refused to apply to be added parties to the same.

### 62. The Law Applicable

63. Article 26 (1) & (2) of the Constitution of Uganda provides that-

"(1) Every person has a right to own property either *individually or in association with others.*

(2) No person shall be compulsorily deprived of property or any interest in or right over property of any description..."

64. Paragraph 8 (1) of the Constitution (Land Eviction) (Practice) Directions, 2021, provides that-

> *"Where the court determines that a registered land owner"* or a person with interest in land has a valid claim to *demolish an illegal structure on his or her land, the court shall issue an order of demolition."*

65. Paragraph 9 (1) of the law provides that-

"A court shall, when issuing an order of eviction or demolition, issue adequate and reasonable notice of eviction or demolition of not less than ninety days and not more than one hundred and twenty days to the affected person or persons.

## 66. Determination of court

- 67. According to paragraph 9 of the affidavit in support, the Applicants averred that the 2nd Respondent was aware of their occupation on the suit land. This fact was also confirmed by the 2nd Respondent in his affidavit in reply under paragraph 6 when he said that they were aware of the Applicants' mothers' occupancy on the suit land since 1970. - 68. The 1st Respondent who was the defendant in Civil Suit No. 23 of 2024, was also aware of the Applicants' claim in the suit property since he had filed his written statement of defence in respect of Civil Suit No. 73 of 2022 which was pending in respect of the same property but decided to enter into a consent judgment to demolish it without considering the Applicants' interest in the same. To this court, that action amounted to fraud. - 69. In the view of the above, the existence of the Applicants in the suit property was therefore concealed from court and it issued the order in ignorance of the existence of other interests in the suit property and yet they ought to have also consented to the alleged demolition. - 70. Secondly, the Applicants averred under paragraphs 11, 12 and 16 that the consent order was endorsed on the $3^{rd}$ /5/2024 and the demolition order was also issued on the same day and the building was demolished on 24th of May, 2024. - 71. Paragraph 9 (1) of the Constitution (Land Eviction) (Practice) Directions, 2021, provides that a court shall when issuing a

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demolition order, issue adequate and reasonable notice of demolition of not less than 90 days. However, contrary to that provision, the demolition order issued by court did not specify the period within which to carry out the said demolition and the suit property was instead demolished in less than a month which was improper and irregular.

- 72. In circumstance, it is found that the demolition procedure was unlawful. - 73. Issue No. 3: Whether the $2^{nd}$ Respondent's affidavit in reply is properly before court having been filed out of time without leave of court? - 74. Counsel for the Applicants submitted that the $2^{nd}$ Respondent was served the application on $11th$ of June, 2024 and it was replied to on $2^{nd}$ July, 2024 outside the 15 days without leave of court which was irregular. - 75. Counsel for the $2^{nd}$ Respondent admitted the delay and submitted that the delay was not to deny justice but it was because the Attorney General's Chambers had to seek for detailed instructions from Mbale City to carry out investigations on the disputed building and make inquiries with the authority that were allegedly involved. - 76. He argued that the Attorney General had to make investigations on whether to defend it or to even settle it out which made the delay and prayed for leniency and to validate the affidavit in reply.

#### 77. The Law Applicable

78. Article 126 (2) (e) of the Constitution of Uganda provides that-

"*In adjudicating cases of both a civil and criminal nature,*" the courts shall, subject to the law, apply the following *principles-*

(e) Substantive justice shall be administered without *undue regard to technicalities. "...*

79. Section 96 of the Civil Procedure Act Cap 282 provides that-

"Where any period is fixed or granted by the court for the doing of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge that period, even though the period originally fixed or granted may have expired."

**Uganda Advocates** $\mathbf{v}.$ **Byaruhanga** $\mathbf{g}$ Co. 80. In **Kasirye** Development Bank, SC Civil Application No. 2/97 where it was held that-

> "...a litigant who relies on the provisions of Article 126" (2) (e) of the Constitution must satisfy the Court that in the circumstances of a particular case before the Court it was not desirable to pay undue regard to the relevant technicality."

- 81. In the instant case, it is not in dispute that the 2nd Respondent filed his affidavit in reply 18 days beyond the stipulated time frame. He however pointed out the reason which necessitated his delayed filing which was the investigations that were to be conducted by the office of the Attorney General to ascertain the real dispute and whether to defend it. - 82. Therefore, since the purpose of affidavit is to adduce evidence to court for proper determination of the matter, the 2nd Respondent's affidavit in reply is accordingly validated. - 83. Issue No. 4: Whether the $2^{nd}$ Respondent's plaint in HCCS No. 23 of 2024 leading to the consent order was lawful without involvement of Attorney General? - 84. Counsel for the Applicant submitted that the pleadings in the Plaint commencing in Civil Suit No. 23 of 2024 were signed and filed by

the Town Clerk, Wamboga Kassim which was improper as it was contrary to public policy where the Attorney General is by law mandated to act on behalf of Government entities under Article 115(5) of the Constitution and he cited the case of **Aribariho** Andrew V. Nakayiki Gilaida Misc Application No. 56 of 2021 to argue that at the time of filing the impugned plaint, the Respondent clearly did not have the authority.

- 85. Counsel argued that such an illegality renders the order incompetent and the order to demolish the Applicants' property was void *abnitio*. - 86. Counsel for the 1st Respondent on the other hand submitted that whereas counsel for the Applicants relied on Article 119(3) and 115(5) of the 1995 Constitution and Mbale District Local Government V. Samuel Wegoye Advocates HCMA 009 of 2024, the same is distinguishable. He argued that not every decision of the public officer requires consent of the Attorney General. - 87. Counsel contended that the claim in Mbale District Local *Government* concerned payment of huge sums of money which was going to cause a gross effect on the public funds and property hence required the consent of the Attorney General but in this case does not in any way create a vessel on use of public funds and property. - 88. Counsel submitted that enforcing the elimination of a 60 years old building in the city which had been condemned by the health officials as too dangerous to public and human life does not require the consent of the Attorney General. - 89. He contended that the $2^{nd}$ Respondent took the right procedure by obtaining a court order to do so.

# 90. The law Applicable

91. Article 119 (3) of the Constitution of the Republic of Uganda provides that-

> "The Attorney General shall be the principal legal advisor to Government"

92. Article 119 (5) of the Constitution of the Republic of Uganda provides that;

> "Subject to the provisions of this Constitution, no agreement, contract, treaty, convention or document by whatever name called, to which the Government is a party or in respect of which the Government has an interest, shall be concluded without legal advice from the Attorney General, except in such cases and subject to such conditions as Parliament may by law *prescribe.* (Underline the emphasis in mine)

93. Regulation 2 (1) of The Local Governments (Requirements for seeking Technical and Legal Advice" Regulation 2007 provides that-

> "A person holding a political or public office at a district or lower local Government Council shall, before directing or concurring in the use of public funds or property whenever giving effect to the direction that is likely to result in the decision being challenged in court or in the loss of public funds seek technical or legal advice."

## 94. Determination of court

95. The Applicants averred under paragraph 20 of the affidavit in support that local governments cannot enter into consent judgments without the consent or approval of the Attorney General and that this particular order was executed without the consent of Attorney General and therefore the consent was null and void.

- 96. Under section 56 of the Public Health Act, the law allows the local authorities to prevent or remedy danger to health arising from unsuitable dwelling. Following that provision of the law, the 2nd Respondent instituted Civil Suit No. 23 of 2024 wherein it entered into a consent judgment with the $1^{st}$ Respondent to demolish the alleged building. - 97. Article 119(5) of the Constitution of Uganda provides that no agreement, contract, treaty, convention or document by whatever name called, to which the Government is a party or in respect of which the Government has an interest, shall be concluded without legal advice from the Attorney General. - 98. A consent judgment entered into by the $1^{st}$ and $2^{nd}$ Respondents is in form of an agreement that required approval of the Attorney General before it is executed by any Government entity/agency. It does not matter whether the said agreement has monetary implication or not. What is important to understand is that, will the agreement like the one in the present case have implication that will lead to suing the Attorney General? - 99. It was therefore incumbent upon Mbale City the 1st Respondent herein to seek approval of the Attorney General before entering into the said consent. - 100. In the circumstance, I did agree with the submission of counsel for the Applicants in that respect. - Issue No. 5: Whether Applicants have sufficient grounds 101. to review and set aside consent judgment in Civil Suit No. 23 of 2024 - Section 82 of the Civil Procedure Act and Order 46 of the Civil 102. Procedure Rules gives circumstances under which an application for review can be brought.

# In Edison Kanyabwera V. Pastori Tumwebaze, Supreme 103. Court Civil Appeal No. 6 Of 2004, Court held that

"In order that an error may be a ground for review, it must be one apparent on the face of the record, i.e. an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no Court would permit such an error to remain on record. The error may be one of fact but it is not limited to matters of a fact and includes also error of law."

Also in FX Mubuuke V. UEB High Court Misc. Application 104. No.98 of 2005 Court gave the grounds to be proved for review to include-

- That there is a mistake or manifest mistake or error $(a)$ apparent on the face of the record. - That there is discovery of new and important evidence $(b)$ which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made. - That any other sufficient reason exists. $(c)$ - The principles stated therein shall guide this court in the 105. determination of this issue as below.

## Whether there is mistake or error apparent on the face 106. of record?

From the averments stated in the 1st issue, it has been 107. demonstrated that the Applicants have been in the suit property

since 1986 to date. It is also clear that the 1st Respondent is the legally registered owner of the suit property but what I can gather from the evidence is that though he is the legal owner, he has never been in possession of the suit property. This fact was also known by the $2^{nd}$ Respondent as per Paragraph 6 of its affidavit in reply.

- The above facts were however not brought to the attention of 108. the Assistant Registrar before the order of demolition was issued. Secondly, since the $2^{nd}$ Respondent was aware of the presence of the Applicants on the suit property, he ought to have added them as parties to Civil Suit No. 23 of 2024 but he did not. - It should be noted that land in Uganda is owned in different 109. tenures. For example, it can be Mailo, Free hold, Lease hold and Customary tenures. The other form of ownership is bonafide occupants who may have equitable interests on registered land which the Applicants are claiming for. - Therefore, the $2^{nd}$ Respondent having had knowledge about 110. the existence of the Applicants' equitable interests in the suit property since 1970s, he ought to have sued them as well. Having failed to do so, means that the demolition order was entered under ignorance and mistake of facts. - Whether there is discovery of new and important 111. evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made. - Counsel for the Applicants submitted that the Applicants were 112. not aware that the Respondents had irregularly commenced a suit before this honorable court over the same property to demolish it to deprive the Applicants property ownership. He argued that this information was just newly discovered when the demolition

occurred on the basis of the consent they were not a party to yet the order was affecting them.

Counsel for the 1st Respondent on the other hand submitted 113. that the evidence concerning the existence of Civil Suit No. 73 of 2022 was not in any way relevant to Civil Suit No. 23 of 2024 since it could not change the fact that the structure was condemned unfit for human use and public nuisance since 1975.

#### **Determination of court** 114.

- From the averments of all parties on the court record, it is 115. obvious that the Applicants were not parties to Civil Suit No. 23 of 2024. - According to paragraphs 18 and 19 of the affidavit in support, 116. the Applicants averred that the consent judgment and the order of demolition was entered without their knowledge and consent as the occupants of the suit property and in disregard of Civil Suit No. 73 of 2022 that is pending before this court. - They contended that if they had been informed, they would 117. have adduced evidence to show that the buildings subject to demolition were subject matter in Civil Suit No. 73 of 2022 which is new and important evidence that court had no knowledge about. - The above implies that the Applicants only came to know $118.$ about the existence of Civil Suit No. 23 of 2024 much later after the demolition, which means they did not know about it and therefore could not adduce evidence regarding the existence of Civil Suit No. 73 of 2022. - Therefore, the existence of Civil Suit No. 73 of 2022 is 119. important evidence which the Applicants could not produce at the time when the decree in Civil Suit No. 23 of 2024 was passed because they were not parties to the same.

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#### Whether any other sufficient reason exists. 120.

- The other sufficient reason which I can consider for this 121. Application is that both the Plaintiff and the Defendant in Civil Suit No. 23 of 2024 had knowledge regarding the interests of the Applicants in the suit property but concealed that information from court which made it to issue an erroneous order. - Secondly, the 1st Respondent and the 2nd Respondent having 122. had knowledge about the existence of the Applicants claim in the suit property prior to instituting Civil Suit No. 23 of 2024 and decided to enter into a consent without their involvement, presumably implies collusion between the two mentioned parties. - The conduct of the $2^{nd}$ Respondent being a public body is 123. tainted with so many questions as to why it did not sue the Applicants as well in Civil Suit No. 23 of 2024 yet it had knowledge about their interest or claim in the suit property. - In the view of the above, the existence of the Applicants in the 124. suit property was therefore concealed from court and it issued the order in ignorance of the existence of other interests in the suit property which makes the consent judgment and the orders therein irregular. - Before I handle the last issue, it is important for me to address 125. some of the preliminary points of law that were raised by the Respondents. - Locus standi; the Respondents argued that the Applicants 126. have no *locus standi* to institute this Application having not been parties to Civil Suit No. 23 of 2024. However, considering my resolution under issue No.1, it is obvious that the Applicants had the locus to institute this Application. - Cause of action; counsel submitted for the 1st Respondent that 127. the Applicants have no cause of action since they alleged new and important facts but they did not particularize them.

- However, in the view of my discussion in the body of this 128. ruling, this claim has already been answered. - The above preliminary objections are overruled. The rest of the 129. preliminary objections have been impliedly addressed in the body of this ruling.

### Issue No. 6: What remedies are available to the parties? 130.

- The Applicants prayed that the consent judgment in Civil Suit 131. No. 23 of 2024 be reviewed, Civil Suit No. 23 of 2024 be set aside, and a declaration that the demolition of the Applicants' building was illegal and uncalled for plus costs of this Application be provided for. - In the view of my discussion above, this Application 132. accordingly succeeds in the following terms- - (a) It is declared that the demolition of the Applicants' buildings did not follow the procedures provided for in the law hence, it was illegal. - (b) The orders issued in the consent judgment in Civil Suit No. 23 of 2024 are hereby set aside save for the orders and declarations 1 to 4 which have already been executed. - (c) Costs of this application are awarded to the Applicants.

I so order

**LUBEGA FAROUO JUDGE**

Ruling delivered via the emails of the parties on $4^{th}$ day of September, 2024.