Kisembo & 4 Others v The Board of Governors Rwenzori Saad Islamic Institute & Another (Miscellaneous Application 12 of 2021) [2024] UGHC 1105 (18 December 2024)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-LD-MA-0027-2024 formerly HCT-01-LD-MA-0012-2021**

**(ARISING FROM HCT-01-CV-MA-0003-2016)**

**(ARISING FROM HCT-01-CV-LD-CA-0013 OF 2006)**

**(ARISING FROM KAS-00-CV-LD-CS-0002-2006)**

1. **ARAFAT KISEMBO HAMAD** 2. **SHEIKH KAMURI HAMAD KIWANUKA** 3. **SHEIKH SWALEH MUSENENE** 4. **SHEIKH ZAKARIAH SWALEH** 5. **SHEIKH MUHAMMAD MASUDI AMIRI==========APPLICANTS/OBJECTORS**

**VERSUS**

1. **THE BOARD OF GOVERNORS**

**RWENZORI SAAD ISLAMIC INSTITUTE**

1. **UGANDA MUSLIM SUPREME COUNCIL =================RESPONDENTS**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**RULING**

**REPRESENTATION:**

Applicants/Objectors represented by Ngamije Law Consultants & Consultants

Respondents represented Kaahwa, Kafuuzi, Bwiruka & Co. Advocates

**BACKGROUND:**

This application is brought by way of Notice of Motion under Section 98 of the Civil Procedure Act; Order 22 Rules 55, 56, 57, 58; and Order 52 Rules 1 and 2 of the Civil Procedure Rules seeking orders that:

1. The intended execution by court in HCT-01-CV-MA-0003-2016 arising from HCT-01-CV-LD-CA-0013-2013 by way of giving vacant possession and detention of the objectors from the suit land be set aside, cancelled and/or nullified. 2. Costs of the application be provided for.

The application is further supported by nine affidavits sworn by the applicants as well other members of the Board of Governors Rwenzori Saad Islamic Institute whose general evidence in brief is that:

1. The Objectors were not party in personal capacity to the suit which is a subject of execution. 2. The Applicants’ interest in the disputed land was not a subject of litigation in civil suits HCT-01-CV-LD-CA-0013-2013 and KAS-00-CV-LD-CS-0002-2006. 3. Sheikh Muhammad Twaha Lubega against whom eviction and detention is being sought is deceased having passed away on 12th August 2020. 4. The 1st, 2nd, 3rd and 4th objectors are members of the 1st Respondent the Board of Governors Rwenzori Saad Islamic Institute. 5. The 1st Respondent has never sanctioned and/or instructed any person to apply for detention and eviction of its members. 6. The 1st to 4th objectors herein have never been agents of the 2nd Respondent. 7. Migdad Saad who is behind the Notice to Show Cause why Execution should not Issue has no authority from the 1st Respondent and is therefore an impostor. 8. According to the judgment in KAS-00-CV-CS-0002-2006, Migdad Saad is not the Chairperson of the 1st Respondent as he claims to be. 9. There are currently nine living members of the 1st Respondent. 10. The Applicants are in possession of the subject matter of the intended execution. 11. The Applicants face forceful eviction and detention by impostors claiming as the 1st Respondent. 12. The status quo is in favour of the Applicants. 13. The balance of convenience is in favour of the Applicants. 14. Land is an important source of livelihood. 15. The Applicants are facing irreparable damages. 16. It is just and equitable that the application be granted.

In response to the Application the Respondents filed affidavits sworn by one Hajji Migdad Saad and Geoffrey Mishele.

In his Affidavit in Reply Hajji Migdad Saad stated briefly as follows.

Hajji Saad is the holder of Letters of Administration of the estate of the late Saad, the founder of the 1st Respondent which was licenced of 29th February 1983. In 2005 the 2nd Respondent began to interfere with the management of the 1st Respondent. In 2013 the Court vide KAS-00-CV-CS-0002-2006 found in favour of the 1st Respondent that the certificate of title for the suit land had been securely fraudulently. He further stated that the Court vide HCT-01-CV-LD-CA-0013 made the following consequential orders:

1. In line with the judgment and decree in KAS-00-CV-CS-0002-2006, the land title in respect of Plot 26 Bock 26 Bukonjo Kasese (suit land) in the names of the 2nd Respondent be cancelled. 2. A fresh title free of incumbrances be issued to the 1st Respondent. 3. The orders in KAS-00-CV-CS-0002-2006 be upheld and executed.

The 1st Respondent successfully applied for review of the aforementioned consequential orders vide Miscellaneous Application No. 3 of 2016 upon the failure to effect the orders on account of the suit property being leasehold rather than freehold tenure. The 2nd Respondent then filed Civil Appeal No. 224 of 2016 which is still pending before the Court of Appeal.

The 2nd Respondent then unsuccessfully applied for an interim order for Stay of Execution before the Court of Appeal and thereafter filed a second application for Stay of Execution wherein it was decided by consent of the parties that the 2nd Respondent would vacate the school by 9th December 2016.

The 2nd Respondent did not vacate the school till 23rd February 2017 when the school was handed over to the 1st Respondent. The Applicants in their individual capacities then decided to establish a parallel school which establishment was blocked by the Principal Inspector of Schools.

The Applicants are not members of the 1st Respondent and have no relationship with the 1st Respondent and have persistently frustrated the 1st Respondent’s efforts to utilize the suit land by orchestrating fruitless applications and appeals.

In addition to the above, one Mishele Geoffrey swore a supplementary affidavit in reply in which he stated inter alia that being an advocate of the Courts of Judicature he was appointed by the 1st Respondent as School Lawyer and In-house Counsel and to that extent he was knowledgeable about the facts. He outlined the history of the matter basically averring that the Applicants in this matter have no claim in this matter and that they are only relying on falsehoods about being members of the 1st Respondent whereas not. He further averred that their claims are frivolous and intended to protect the applicants from execution of court orders.

There was also an Affidavit in Reply sworn by one Abdul Hakim Juma Kirarira affirmed on behalf of the 2nd Respondent. In the Affidavit it was averred that the Applicants were not on the disputed land in any capacity. He further affirmed that the Applicants were not agents of the 2nd Respondent. He then went on to outline the history of the matter and basically averred that the conflict over the suit land was primarily between one Hajji Migdad Saad and the 2nd Respondent. He further averred that the application for objector proceedings has exposed illegalities behind the execution and eviction necessitating Court’s disposal of the appeal HCT-01-CV-CA-0043-2008.

By way of rejoinder Applicant Arafat Kisembo Hamad swore an Affidavit largely refuting the assertions of both respondents and essentially insisted that as the rightful members of the 1st Respondent the intended execution against the Applicants was illegal.

**Applicants’ Submissions:**

Counsel for the Applicants/Objectors submitted that the evidence in this matter was to the effect that the objection to the intended execution is wrongly engineered by one Migdad Saad falsely representing himself as Chairperson of the 1st Respondent contrary to the decision of the Court in KAS-00-CV-LD-CS-0002-2006. To that extent Counsel for the Applicants/Objectors submitted that the execution was founded on illegality and ought to be stopped by Court citing the Supreme Court decision in **Makula International v His Eminence Cardinal Emmanuel Nsubuga** – **Civil Appeal No. 4 of 1981** and Section 37 of the Judicature Act.

Counsel further submitted that the Applicants were not agents of the 2nd Respondent and that the application to evict and detain them is based on illegality and the 1st Respondent has never sanctioned the said execution. Counsel also invited Court to investigate the legality of Migdad Saad regarding the eviction and detention of the Applicants.

**1st Respondent’s Submissions in Reply:**

Counsel for the 1st Respondents submitted in reply outlining the genesis of the matter and argued that the Applicants were not party to the proceedings in the Chief Magistrate Court and could not purport to benefit therefrom. Furthermore the Applicants were not agents of the 2nd Respondent in this matter. It was further argued that the Applicants were acting in bad faith by bringing this Application and that the objector application was untenable as the execution sought was not by attachment. Furthermore since the land was already decreed to the 1st Respondent, the Applicants could no longer claim it as agents of the 2nd Respondent.

**ANALYSIS:**

I have studied the pleadings and submissions in this matter carefully. In this matter the Applicants take issue with the intended execution in HCT-01-CV-MA-0003-2016 arising from HCT-01-CV-LD-CA-0013-2013 by way of giving vacant possession of the suit land to the 1st Respondent and detention of the Applicants.

This matter’s historical roots go back to a decision of the Chief Magistrate Court in Kasese vide **The Board of Governors Rwenzori Saad Islamic Institute v Uganda Muslim Supreme Council – KAS-00-CV-CS-0002-2006.** This suit ultimately resulted in the High Court making Consequential Orders vide HCT-01-CV-LD-MA-0003-2016 wherein the Court ordered on 9th September 2016 that:

1. UMSC as Respondent be cancelled as registered proprietor on the Certificate of Title for Leasehold Register Volume 3497 Folio 13 Bukonjo Block 26 Plot 26 in Kasese district. 2. The Applicant (Board of Governors Rwenzori Saad Islamic Institute) be entered on the Certificate of Title for Leasehold Register Volume 3497 Folio 13 Bukonjo Block 26 Plot 26 in Kasese district. 3. An order of vacant possession for the suit land be issued in favour of the Applicant. 4. Each party to bear its own costs.

The successful applicant who is now the 1st Respondent in this matter sought to execute the orders and served the Applicants a Notice to Show Cause why Execution should not Issue for the orders above. According to the Notice dated 26th February 2021, the 2nd Respondent in this present Application was required to show cause why execution by way of vacant possession and detention of the Applicants in this present Application should not issue.

When I consider the background related to the intended execution for which the Notice to Show Cause arose there is a preliminary issue that in my view overrides the merits of the application.

The issue is with regard to whether Objector Proceedings are the correct procedure to be adopted in relation to the nature of orders that were intended for execution.

As concerns objector proceedings Order 22 Rule 55(1) of the Civil Procedure Rules provides that where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that the property is not liable to the attachment, the court shall proceed to investigate the claim or objection with the like power as regards that examination of the claimant or objector, and in all other respects, as if he or she was a party to the suit; except that no such investigation shall be made where the court considers that the claim or objection was designedly delayed.

In this matter the Applicants are objectors to the execution of the orders of the Court vide HCT-01-CV-LD-MA-0003-2016. However, the primary order of the Court for which the Applicants are raising an objection speaks to vacant possession of the suit land. By the very wording of Order 22 Rule 55(1) the only basis on which a claim can be raised in preference to or in objection to that of a decree holder is with regard to attachment of property.

Black’s Law Dictionary, 2nd Edition defines attachment in the following terms,

*“The act or process of taking, apprehending, or seizing persons or property, by virtue of a writ, summons, or other judicial order, and bringing the same into the custody of the law; used either for the purpose of bringing a person before the court, of acquiring jurisdiction over the property seized, to compel an appearance, to furnish security for debt or costs, or to arrest a fund in the hands of a third person who may become liable to pay it over. Also the writ or other process for the accomplishment of the purposes above enumerated, this being the more common use of the word. Of persons. A writ issued by a court of record, commanding the sheriff to bring before it a person who has been guilty of contempt of court, either in neglect or abuse of its process or of subordinate powers. …”*

By the definition above and in relation to the Application before this Court, the process of attachment would speak to seizing of property by virtue of a judicial order for the purpose of acquiring jurisdiction over the property seized. However, in this instance the process of acquiring jurisdiction arose from the order of the Court to place the property in the names of the Board of Governors Rwenzori Saad Islamic Institute. In my view the Court order that is the subject of intended execution cannot be construed as an attachment within the meaning of Order 22 Rule 55(1). The purpose for which attachment is sought as per the definition above with respect to property is to furnish security for debt or costs. To that extent the attachment is done as a means of establishing a lien or temporary jurisdiction over the property for purposes of meeting a judgment debt or costs.

In matters that concern legal determination of ownership of property, execution by way of attachment cannot apply. If in a dispute over property the Court determines that the property belongs to one of the parties, the successful party cannot be deemed to be attaching the property as attachment presupposes that the party against whom the attachment is sought is the legal owner of the property but another party seeks to enforce either a debt or costs through attachment of said property.

I therefore find that on a procedural level this application is misconceived as the suit property is not a subject of attachment within the meaning of Order 22 Rule 55(1). The suit property in this matter is a subject of determination of ownership and not resolution of a debt or costs. The nature of the decree and consequential orders in this matter are such that enforcement of execution can only be achieved by virtue of Section 38(f) of the Civil Procedure Act wherein it is provided that subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree holder, order execution of the decree in such other manner as the nature of the relief granted may require. A decree holder may choose the manner of execution of their decree but this is always subject to discretion of court (see **Mandavia v Rattan Singh [1968] EA 146 at** 149). In this case the Court in its discretion specifically ordered for vacant possession among other specific orders in line with the relief sought.

The other specific orders granted by Court related to cancellation of the Certificate of Title for the suit property as registered in the names of the 2nd Respondent in this matter and thereafter the registration of the 1st Respondent as the lawful owner of the property. It is after these two orders that the Court then calls for vacant possession. I cannot therefore understand why in this matter there is a hurry to cause vacant possession at this point in time. According to Paragraph 17 of the Affidavit in Reply sworn by Hajji Migdad Saad reference is made a copy of the Certificate of Title for the suit land comprised in Leasehold Register Volume 3497 Folio 13 Plot 26 Bukonjo Block 26 in Kasese district and annexed as R16. As of 2nd June 2021 when the Affidavit was commissioned the property was still registered in the names of Uganda Muslim Supreme Council. This is despite the Court order cited above requiring that the Certificate of Title vesting legal ownership of the suit land in the 2nd Respondent be cancelled and the 1st Respondent registered as the lawful owner of the suit property. The Consequential Orders that are the subject of execution need to be executed in the order that the Court issued them. Vacant possession should not therefore be put ahead of cancellation and fresh registration of the suit property.

I therefore find that as much as the Applicants in this matter proceeded in error by filing objector proceedings, it is also apparent that the execution against which they are objecting is also premature to the extent of seeking vacant possession. The orders issued by Court ought to be implemented in the logical order that Court issued them. To do otherwise would simply invite unnecessary legal challenges as the party seeking execution has no legal basis upon which to seek vacant possession as the title is still in the names of another party. Once the 1st Respondent has been registered as the lawful owner of the suit land only then can they proceed to take vacant possession and take independent action against any persons they deem to be trespassers.

I also noted that with regard to the intended detention of the applicants in execution of the consequential orders, this is also premature and misconceived. It is misconceived to the extent that in terms of arrest and detention under the Civil Procedure Act, Section 40 therein provides only for the arrest of judgment debtors. The subject matter of the intended execution is not a judgment debt but rather the vesting of legal ownership of property in the 1st Respondent. The 1st Respondent cannot therefore proceed to cause detention of the Applicants in this matter when it is clear that they were not parties to the suit from which the intended execution arises and therefore not judgment debtors within the meaning of Section 40 of the Civil Procedure Act. Even if they had been parties to the suit they would still not be deemed judgment debtors as the subject matter had nothing to do with a debt claim.

In light of the above and in the interest of justice and prevention of abuse of court process I also find that the intended execution as laid out in the Notice to Show Cause Why Execution Should Not Issue vide HCT-01-CV-LD-MA-0003-2016 is misconceived and premature to the extent that vacant possession is sought before implementation of the orders of Court concerning cancellation of Certificate of Title and fresh registration of the same. Furthermore the intended execution is also inconsistent with the Consequential Orders of Court as detention of the Applicants/Objectors in this application was neither ordered by Court nor an action necessary for implementation of the said Orders.

I do also find that the arguments and counter-arguments about who constitutes the 1st Respondent for purposes of ownership of the suit land and the school thereon cannot be effectively resolved in objector proceedings. Firstly, this is because the objector proceedings are themselves misconceived and secondly, even if the objector proceedings were procedurally correct, they are restricted to ascertaining the rights of third parties in matters of execution of orders or decrees. In this matter what is clear is that the 1st Respondent is entitled to the suit land by virtue of the Consequential Orders of Court in HCT-01-CV-LD-MA-0003-2016. The issue of who is supposed to be on the 1st Respondent Board of Governors is a separate subject of contention which cannot be appropriately dealt with in the context of objector proceedings.

As concerns the 2nd Respondent I find that while they are named as Respondents and dutifully submitted an Affidavit in Reply in this matter I failed to see the reason why the Applicants included them as there is no claim against them evident in the pleadings or submissions of the Applicants. As much as the history of the matter from which the objector proceedings arose involved the 2nd Respondent, I found no material basis for their inclusion as respondents in the present application especially since they are not even decree-holders in this matter.

Based on the foregoing analysis I hereby make the following orders.

**ORDERS:**

1. This Application fails on the basis that the intended execution is not an attachment of property within the meaning of Order 22 Rule 55(1) of the Civil Procedure Rules. 2. The intended execution of Consequential Orders arising from HCT-01-CV-LD-MA-0003-2016 to wit vacant possession of the suit property and the detention of Arafat Kisembo, Sheikh Amuri Hamad Kiwanuka, Sheikh Muhammad Twaha Lubega, Sheikh Swalleh Musenene, Sheikh Zakaria Swalleh and Sheikh Muhamud Masudi Amiri is hereby quashed. 3. The 1st Respondent should proceed to implement the Consequential Orders of the Court in HCT-01-CV-LD-MA-0003-2016 in the priority outlined by the Court starting with cancellation of the Certificate of Title in the names of the 2nd Respondent and thereafter registration of the 1st Respondent as lawful owner. It is only after being registered as lawful owner that the 1st Respondent may proceed to take vacant possession of the suit land and enforce their rights against any person or persons that they deem to be trespassers. 4. The Applicants and 1st Respondent shall bear their own costs with regard to the intended execution. 5. The Applicants shall meet the costs of the 2nd Respondent in relation to the objector proceedings as the 2nd Respondent is not the decree holder seeking execution and to that extent should not have been a party to these proceedings.

I so order.

Ruling delivered this 18th day of December 2024.

**David S. L. Makumbi**

**JUDGE**