Lukwiya and 3 Others v Odiya (Miscellaneous Application 19 of 2023) [2024] UGHC 454 (14 May 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT GULU (MISC. APPLICATION NO. 019 OF 2023 (Arising from Misc. Application No. 012 of 2023) (Arising from Misc. Application No. 041 of 2021) (Arising from Civil Appeal No. 053 of 2018) (Arising from Gulu Chief Magistrates Court Civil Suit No. 014 of 2010) 1. LUKWIYA SAMSON 2. KARAMA CHRIS 3. SPC OLOYA RICHARD 4. OKELLO JOHN BRIAN==================================APPLICANTS VERSUS ODIYA ANTHONY======================================RESPONDENT**

## **BEFORE HON. MR. JUSTICE PHILLIP ODOKI**

### **RULING**

#### **Introduction:**

[1] The Applicant filed this application, by Notice of Motion, pursuant to Section 98 of the Civil Procedure Act and Order 52 rules 1, 2 & 3 of the Civil Procedure Rules, seeking for a consequential order of vacant possession and/ or eviction order against the Respondent arising from Civil Appeal No. 053 of 2018.

### **Background of the application:**

[2] The Respondent instituted Civil Suit No. 014 of 2010 before the Chief Magistrates Court of Gulu, holden at Amuru, against the Applicants seeking for, a declaration that land measuring approximately 122 acres situated at Pamin Olango Village, Latoro/Wii Anaka Parish, Puranga Subcounty, Nwoya County in Amuru District (hereinafter referred to as the 'suit land') belongs to the estate of the late Donasiano Odiya; a permanent injunction to restrain the Applicant from further trespass on the suit land; general damages for trespass and costs of the suit.

[3] The Respondent alleged that his late father, Donasiano Odiya, settled on the suit land in 1961 as the Parish Chief of Pawat Omero. In 1964, the Applicants' father, Oola Peter Labara settled on the adjacent land to the west, separated from the one occupied by Donasiano Odiya by Anaka river. In 1978, Donasiano Odiya applied for a lease of the suit land but died in 1979 before completion of the lease process and he was buried on the suit land. The family of Donasiano Odiya continued to stay on the suit land until 2004 when the Appellants began claiming the suit land to be theirs. The Appellants gave out part of the suit land for construction of a school, sold another part to a priest without the consent of the Respondent and was demanding that the Respondent should vacate the suit land.

[4] In their Written Statement of Defense, the Applicants denied the Respondent's claim. They averred that the suit land belonged to their late father, Peter Oola Labara. It is Peter Oola Labara who gave to Donasiano Odiya a small portion of the suit land measuring 100 meters x 100 meters for settlement only. The Applicants further averred in the Written Statement of Defense that any documents procured by the Respondents or their father in respect of land outside the land measuring 100 meters x 100 meters is fraudulent. The Applicants set up a counterclaim in which they sought for, a declaration that they are the rightful owners of the suit land; cancellation of all documents obtained by the Respondent or his father in respect of land outside the 100 meters x 100meters; a permanent injunction to restrain the Respondents and their agents from further trespass on the suit land; general damages; an eviction order of the Respondent from the land outside the100 meters x 100meters; and costs of the counterclaim.

[5] During the hearing, the Respondent, a son of Donasiano Odiya, testified as P. W.1, Labol Rufina, the widow of Donasiano Odiya, testified as P. W.2, Ocaya Carlos, a son of the late Donasiano Odiya testified as P. W.3 and Okot Maurensio, a neighbor of the suit land, testified as P. W.4. The gist of the evidence of the Respondent and his witnesses was that Donasiano Odiya settled on the suit land in 1961/1962. Oola Peter Labara came later and settled on land neighboring the suit land. Donasiano Odiya applied for a lease of the suit land in 1978 but died in 1979. The family of Donasiano Odiya settled on the suit land from 1961/1962 up to 2004 when the Respondents stopped the Respondent from utilizing it.

[6] The Applicants on the other hand adduced the 1st Applicant, son of the late Peter Oola Labara, who testified as D. W.1, the 4th Respondent, a younger brother of Peter Oola Labara, testified as D. W.2, Oloya Richard, a son of Peter Oola Labara, testified as D. W.3, Okello Emmanuel, a neighbor of the suit land, testified as D. W4 and Odur Raymond, a neighbor of the suit land, testified as D. W.5. The gist of their evidence was that the suit land belongs to Peter Oola Labara who settled on the suit land in 1958. In 1984, the suit land was inspected and Peter Oola Labara was given a lease offer. According to the witnesses, it is Peter Oola Labara who gave Donasiano Odiya part of the suit land. D. W.1 stated that the part of the suit land which was given to Donasiano Odiya by Peter Oola Labara was 2 gardens measuring 2 acres with a homestead. He indicated that he would be able to show to the court that land which was given to Donasiano Odiya by Peter Oola Labara if the court visited the locus in quo. He stated that he was not there when Peter Oola Labara gave part of the suit land to Donasiano Odiya. D. W.2 stated that the part of the suit land which was given to Donasiano Odiya by Peter Oola Labara was measuring 2 acres. He also stated that he was not there when Peter Oola Labara gave part of the suit land to Donasiano Odiya. D. W.4 testified that according to his estimate, the part of the suit land which was given to Donasiano Odiya by Peter Oola Labara

is about 7 acres. He testified that the Respondent has gone beyond the 7 acres. D. W.5 testified that he was not part of the discussion intended to give part of the suit land to Donasiano Odiya by Peter Oola Labara but according to him, the land given to Donasiano Odiya by Peter Oola Labara is big but cannot reach 100 acres. He stated that he was given about 5 gardens.

[7] After both parties concluded their case, the trial Magistrate invoked his powers under Order 16 rule 7 of the *Civil Procedure Rules SI 71 -1* and Section 100 of the *Magistrates Courts Act, Cap 16* to summon Aber Susan Mildred, the District Land Officer of Amuru District who testified as C. W.1. She testified that according to the records in her custody, on the 14th August 1978, Donasiano Odiya applied for 122 acres of land and the land applied for was inspected on the 20th August 1984. On the 19th March 1985 the application was forwarded to Uganda Land Commission, but there is no evidence that the application was granted. With regard to Peter Oola Labara, he made 3 different applications for land at various locations in Wii Anaka. One application, dated 30th May 1964, was for 5000 acres of land at Wii Anaka. The application was approved for 3,500 acres. On the 20th August 1968 Peter Oola Labara wrote to the Minister of Water and Mineral Development that he was not prepared to continue developing the land due to his financial conditions. According to C. W.1 there is another hand written application for a lease dated 30th May 1964 baring 7 applicants, that is Peter Oola Labara, Emmy Komakech, Ongwech Otim, George Ratoo, Chris Karama, David Okwii and Lukwiya Oola. The application was approved. A lease offer was dated 13th May 1985 and instructions to survey dated 14th May 1985. The other two applications relate to land at Wii Anaka Pawat measuring 150 yards x 150 yards for a Petrol Station and shop by Peter Oola Labara and another application by Peter Oola Labara was for land at Pawat Omeru for 1000 yards x1000 yards for a Health Centre.

[8] C. W.1 concluded that from the documents, if the land applied for by Donasiano Odiya is the same land applied for by Peter Oola Labara in 1964, then the suit land belongs to Donasiano Odiya because when he applied for the suit land in 1978 Peter Oola Labara had written a letter withdrawing from the land 10 years earlier.

[9] When the trial Court visited the locus in quo, Ochora Ociti (who was not a witness in Court) showed to the Court the grave of Donasiano Odiya and that of his wife. He also showed to the Court a big tree which according to him was a stand for a granary belonging to Donasiano Odiya and a yago tree. He further showed to the court a garden with 5 mango trees where he said Donasiano Odiya had houses but he could not trace the remains of the house. According to him, the land of Donasiano Odiya goes up to the valley. The court noted that there was no sign of a house in that area. The Respondent testified that the Applicants have land west of Anaka River which is the land Peter Oola Labara applied for. He showed to the Court where their former house, which was made of mud and wattle, was. D. W.4 agreed with the Respondent that Donasiano Odiya had a house at the place which was shown by the Respondent. According to D. W.4, the place where the former house of Donasiano Odiya, it is the land Peter Oola Labara gave to Donasiano Odiya. Both D. W.1 and D. W.4 stated that the Appellants have no claim over that area which was given to Donasiano Odiya by Peter Oola Labara. According to D. W.1 the Respondent had gone beyond the area which was given to Donasiano Odiya by Peter Oola Labara. The trial Magistrate drew a sketch map in which he shaded an area which he stated not to be in dispute. West of that land is Arua Road, south of that land is the road to Aporolala and north of that land is a path to Olwiyo Road/path to Adoa well and east of that land is Okello Emmanuel. Wii Anaka Primary School appears on the southern western part of the shaded area. The purported grave of Odiya Donasiano appears in the middle of the shaed part. The House of Okello Kenneth, son of Odiya Donasiano, is on the southeast of the shaded area. The House of Rachkara Sabastian, son of the Respondent, appears on the northeastern part of the shaded area. The grave of Rufina Labol is on the northern part of the shaded area.

[10] In his judgment, the trial Magistrate found that the evidence established that the late Peter Oola Labara settled on the suit land earlier than Donasiano Odiya. Peter Oola Labara applied for the land and he was granted a lease. He further found that there is no evidence that the application of the Donasiano Odiya was granted. He dismissed the Respondent's suit with costs and ordered that the Respondent and his agents be evicted from the suit land.

[11] Dissatisfied with the decision of the trial Magistrate, the Respondent appealed to this Court vide High Court Civil Appeal No. 053 of 2018. Four grounds of appeal were formulated. Namely;

- 1. The learned trial Magistrate erred in law and fact when he failed or neglected to properly evaluate the evidence before him to the effect that the Appellant's father had been in possession of the suit land since 1961, and hence came to the wrong conclusion. - 2. The learned trial Magistrate erred in law and fact when he failed to enter judgment on admission in favor of the Appellant describing that the portion of the suit land the Respondents admit belongs to the Appellant, hence occasioning a miscarriage of justice to the Appellants. - 3. The learned trial Magistrate erred in law and fact when he failed to consider grave inconsistencies and contradictions in the defense evidence regarding the gift and size of the suit land, hence came to a wrong conclusion.

4. The learned trial Magistrate erred in law and fact when he ignored the evidence adduced at the locus in quo and thereby failed to declare the Appellant the lawful owner of the suit land on the eastern side of Anaka river, hence came to a wrong conclusion.

[12] On the 26th November 2019 my learned brother Judge Stephen Mubiru delivered his judgment on appeal. He found, on ground 1 and 4 of the appeal, that none of the parties had proved customary interest in the suit land. As such the determination the rival claims could only be determined on the basis of the party with superior rights of possession of the suit land, under the doctrine of prior appropriation, which has 4 essential elements, that is intent; actual or constructive possession; effective beneficial use; and priority. On intent, he held that both parties adduced sufficient evidence to prove intent to possess or occupy the suit land. On actual or constructive possession, he also held that both parties had adduced sufficient evidence to prove that they had exclusive possession of parts of the suit land, west of Pakwach road. On effective beneficial use, he held that the acts of the Applicants complained of in the plaint occurred 6 years before the filing of the suit to challenge them. The implication being that 6 years before filing the appeal, the current Respondent had lost the capacity to put the part of the suit land complained of to effective and beneficial use. On priority, he held that Peter Oola Labara was the first to make the application for land in the area in 1964. On the other hand, Donasiano Odiya made his application 11 years later in 1978, which lends credence to the Applicant's version that Peter Oola Labara's appropriation was first in time and that it is Peter Oola Labara who gave the part of the suit land measuring 100 meters x 100 meters.

[13] On grounds 2 and 3 of the appeal, he held that in their defense, the current Applicant acknowledge that the late Peter Oola Labara gave a small portion of the suit land measuring approximately 100 meters x 100 meters to Donasiano Odiya for purposes of establishing a homestead. According to justice Stephen Mubiru, when the trial Court visited the locus in quo, it found located within that area, graves of the late Donasiano Odiya, his homestead and mango trees. He held that it was therefore erroneousfor the trial Magistrate to have ordered for eviction of the current Respondent when his occupation on the area measuring 100 meters x 100 meters was uncontested. He ordered that the judgement of the trial Magistrate be set aside and instead the suit of the current Respondent be dismissed with costs. He entered judgment for the current Applicant against the current Respondent on the counterclaim in the following terms;

- 1. A declaration that, save for the 100 meters x 100 meters of the land given by the late Peter Oola Labara, to the late Odiya Donasiano for purposes of establishing a homestead, the current Respondent is in unlawful possession of the rest of the suit land, west of the road to Pakwach. - 2. A permanent injunction issues restraining the current Respondent, his agents and persons claiming under him from committing further acts of trespass onto the suit land, outside the 100 meters x 100 meters of land given by Peter Oola Labara, to the late Odiya Donasiano for purposes of establishing a homestead. - 3. Since the appeal succeeded in part, each party was to bear their own costs, both in counterclaim and of the appeal.

[14] After the judgement on appeal, the Applicants applied to this court for execution of the decree on appeal by way of vacant possession and demolition of illegal structures of the Respondent on the suit land. The Registrar of this Court issued a notice to show cause why execution should not issue. On the 21st April 2021 when the matter came up for hearing, counsel for the Respondents opposed the application for execution on the ground that there is no order for vacant possession and demolition in the judgment on appeal. The Registrar declined to issue the execution in the manner sought subject to clarification of the decree on appeal from the Judge.

### **The Applicants' case:**

[15] The grounds of this application are contained in the Notice of Motion, supported by the affidavits of the 1st and the 2nd Applicants dated 24th May 2021; the supplementary affidavit of the 1st Applicant dated 9th March 2023; and the affidavit in rejoinder dated 23rd March 2023. The gist of the Applicants' case is that immediately after the judgement of this Court, the Respondent and his agents refused to voluntarily vacate the suit land. The Applicants have, in effect, been denied enjoyment of the fruits of the judgment obtained on appeal. They content that court cannot grant orders in vein. According to the Applicants, given that this Court declared that, save for the 100 meters x 100 meters of the land given by the late Peter Oola Labara, to the late Odiya Donasiano for purposes of establishing a homestead, the Respondent is in unlawful possession of the rest of the suit land, west of the road to Pakwach, and he has refused to voluntarily vacate the same, it is in the interest of justice that an eviction order is issued. The Applicants concede that when the trial Magistrate visited the locus in quo, the graves of the Respondent's family were shown to the Court, but the exact location of the land measuring 100 meters x 100 meters were not demarcated. The Applicants however contend that they know the exact location of the land measuring 100 meters x 100 meters on ground which is where the Respondent has a homestead and burial site and nothing beyond it as shown in evidence at the locus in quo. The Applicants therefore seeks a consequential order that the Respondent be evicted from the suit land, save for the 100 meters x 100 meters.

### **The Respondent's case:**

[16] The Respondent deponed an affidavit in reply dated 14th June 2021 and a supplementary affidavit in reply dated 20th March 2023 opposing the application. He contended that when the trial Magistrate visited the locus in quo, the Applicants conceded that several parts of the suit land measuring more than 50 acres was not in contention and they did not have interest in it. That part of the land was indicated in the sketch map as "no dispute". On the north of that part

was indicated to be Adoo well/ spring, road to Aporolala on the south, West is Arua Road and Okello Emmanuel on the East. He further contended that when Justice Stephen Mubiru delivered his judgement in open court on the 26th November 2019 in High Court Civil Appeal No. 053 of 2018, he correctly described the boundary of his land as starting from Aporolala road up to Laminwena stream. According to the Respondent, all parties were satisfied with the decision, none appealed against it. However, in a twist of events, the typed copy of the judgment which was released by Justice Stephen Mubiru on the 3rd July 2020 restricted him (the Respondent) to land measuring 100 meters x 100 meters. He complained to Justice Stephen Mubiru on the 7th July 2020. On the 14th July 2020 Justice Stephen Mubiru responded to his complaint stating that when he delivered his judgment on the 26th November 2019, he indicated that it was subject to proof reading to be done later. Upon proof reading he realized that reference to Aporolala road up to Laminwena Stream was a regrettable and inadvertent reference to the feature to the North of the land in dispute, which was never established to be the common boundary. He stated that phrase had to be edited out of the fair copy of the judgment when it was eventually printed out representing the true intention of the Court under Section 99 of the *Civil Procedure Act*,*Cap 71* which permits the Court to correct clerical or arithmetical mistakes in judgments. The Respondent contended that the alterations made on the judgment were major and illegal as the parties were not heard in review of the judgement and the alteration exceeded changes in judgments under the slip rule.

[17] The Respondent averred that immediately after the response by Justice Stephen Mubiru, he instructed his lawyers who on the 15th September 2020 filed an application in the Court of Appeal for extension of time within which to appeal to the Court of Appeal. The Respondent contended that the judgment on appeal did not describe the boundaries of the purported 100 meters x 100 meters, no evidence was led by the Applicant to that effect, he does not know the area claimed to be 100 meters x 100 meters and yet he (the Respondent) was in absolute possession of the entire suit land and he denied the gift. The Respondent further contended that this Court cannot issue a consequential order and yet the same decision is subject to an appeal before the Court of Appeal. In the alternative, the Respondent prayed that this Court should amend the judgement and declare that he owns the entire suit land as evidenced at the locus in quo that he was in possession as per the first judgment of this Court.

#### **Legal representation and submissions:**

[18] At the hearing of this application, the Applicants were represented by Mr. Lobo Akera of M/s Nimungu Associated Advocates, while the Respondent was represented by Mr. Brian Watmon of Ms Odongo & Co. Advocates.

[19] Counsel for the Applicants submitted that this is a fit and proper case for a consequential order. Counsel submitted that although this Court in Civil Appeal No. 053 of 2018 decreed that save for the 100 meters x 100 meters of the land given by the late Peter Oola Labara to the late Odiya Donasiano for purposes of establishing a homestead, the current Respondent is in unlawful possession of the rest of the suit land, west of the road to Pakwach, it omitted to expressly order for vacant possession and / or eviction of the Respondent from the suit land to give effect to the decree on appeal. Counsel relied on Section 33 of the *Judicature Act, Cap 13* on the power of the High Court to grant remedies all matters in controversy between the parties may be completely and finally determined to avoid multiplicity of legal proceedings and Section 34 of the *Civil Procedure Act, Cap 71* which gives the Court executing the decree the power to determine all questions arising between the parties to the suit in which a decree was passed relating to execution of the decree. Counsel also relied on the case of *Kalibaala Vincent and anothers versus Attorney General High Court Miscellaneous Application No.*

# *70 of 2015* and *Mugerwa John Bosco and another versus Mss Xsabo Power Ltd High Court Miscellaneous Application No. 273 of 2018* on the meaning of a consequential order.

[20] Counsel for the Applicant further submitted that although in the sketch map of the locus in quo there is a part which was indicated to be 'not in dispute', which the Respondent claims to be more than 50 acres, that part was actually in dispute since some of the features in that area is Wii Anaka Primary School which the Respondent alleged that the Applicant had given to the school. Counsel argued that the Respondent is only attempting to further the dispute by opening new areas of dispute.

[21] In Reply, counsel for the Respondent raised 2 preliminary objections. The first objection was that the affidavit of the 1st and 2nd Applicants in support of this application, filed on the 24th May 2021 bear the stamp of the Chief Magistrates Court of Gulu without indicating the name of the alleged person who commissioned the affidavit. Counsel argued that the failure of the person who commissioned the affidavit to state his or her name and title in the jurat makes it illegal. In support of his argument, counsel relied on Section 5 of the *Commissioner for Oaths (Advocates) Act, Cap 5* and the case of *Hon. Alice Alaso versus Electoral Commission and another High Court Election Petition No. 0005 of 2016.* Counsel prayed that the affidavits should be struck off. The second objection was that the 1st and 2nd Applicants swore affidavits in support of the application on behalf of the other applicants without a letter of authority or power of attorney by the 3rd and 4th Applicants. Counsel argued that the affidavits contravene Order 1 rule 12; Order 3 rule 1; and Order 3 rule 2(1) of *The Civil Procedure Rules SI 71 -1.* In support of his submission, counsel relied on the case of *Lena Nakalema Binaisa and others versus Mucunguzi Myers High Court Miscellaneous Application No. 0460 of* *2013*. Counsel argued that without the affidavits in support, the application remains hanging without any evidence to support it.

[22] On the merit of the application, counsel for the Respondent submitted that the case of *Kalibaala Vincent and anothers versus Attorney General* which was cited by counsel for the Applicant is not applicable to this case since it dealt with calculation of retirement benefits which meets the test in Section 99 of *The Civil Procedure Rules SI 71 -1.* In his view, consequential orders are usually concerned with Section 177 of the *Registration of Titles Act, 230* as per the case of *Nabukeera versus Nansikombi and others High Court Misc. Cause No. 42 of 2011* which was cited with approval in the case of *Mpanga John Musisi versus Twabaje Edward and 3 others High Court Misc. Cause No. 055 of 2020*. Counsel further submitted that consequential orders cannot be granted if it amounts to a fresh, unclaimed and unproven relief as per the dictum in *Mugerwa John Bosco and another versus Mss Xsabo Power Ltd* cited above. Counsel pointed out that in this case, the Applicant seeks to evict the Respondent from the suit land and restrict him to possession of some unknown 100meters x 100 meters. Counsel further pointed out that no witness gave evidence as to the boundary of the 100 meters x 100 meters and none of the witnesses was present when the alleged land was given to Odiya Donasiano. Counsel argued that this Court cannot issue an order of eviction of the Respondent from land not known, as confessed by the Applicant. He further argued that a homestead implies a settlement and homes where someone derives sustenance, which can even include 1000 acres.

[23] In rejoinder, counsel for the Applicant submitted that if any omission were done in determining the location of the area measuring 100 meters x 100 meters, under Section 98 of the *Civil Procedure Act, Cap 71* and Section 33 of the *Judicature Act, Cap 13* this court is empowered to see that the omission is rectified in all possible ways, including, but not limited to, having the 100 meters x 100 meters surveyed under the supervision of the Court or working with the parties or the Applicants to identify and map out the 100 meters x 100 meters.

## **Analysis and determination of the Court:**

[24] I shall begin with the preliminary objections which were raised by counsel for the Respondent. The first objection relates to the form of the jurat in the affidavits in support of this application with regard to the name and title of the commissioner of the affidavits. Section 5 the *Commissioner for Oaths (Advocates) Act, Cap 5* provides that:

*"Every commissioner for oaths before whom any oath or affidavit is taken or made under this Act shall state truly in the jurat or attestation at what place and on what date the oath or affidavit is taken or made."* Underlined for emphasis.

# [25] Rule 9 of the *Commissioner for Oaths Rules* provides that:

*"The forms of jurat and of identification of exhibits shall be those set out in the Third Schedule to these Rules."*

[26] The Third Schedule to *Commissioner for Oaths Rules* provides for the form of the jurat as follows:

*"Sworn/Declared before me,….…this………day…….of……..…, 20…. , at……... Commissioner for Oaths"*

[27] In *Col. (Rtd.) Dr. Besigye Kizza versus Museveni Yoweri Kaguta and another Supreme Court Election Petition No. 1 of 2001* the 1st Respondent's affidavit did not indicate the name or title of the person before whom the affidavit was made. It merely contained a signature and the seal of the High Court. A similar objection, like the instant, one was raised regarding the admissibility of the affidavit. Counsel for the Petitioner argued that the affidavit did not conform to the form of the jurat because the affidavit did not show before whom it was sworn. It was submitted for the 1st Respondent that the signature was for the Registrar of the High Court, Mr. Gidudu, who had power to administer as affidavit by virtue of his office. Mr. Gidudu subsequently made an affidavit confirming that he is the person before whom the affidavit was made. Odoki, C. J., held that:

*"The Registrar of the High Court has by virtue of his Office all the powers and duties of a Commissioner for Oaths in accordance with Section 4 of the Commissioner for Oaths (Advocates) Act. The Registrar's jurat fulfilled the essential requirements of the jurat namely the place and date the affidavit was made. But it should have included his name and title to strictly comply with the Form of Jurat contained in the schedule. The lack of proper form was however cured by the affidavit sworn by Mr. Gidudu. Accordingly, the objection raised against the affidavit sworn by the 1st Respondent had no merit."* Underlined for emphasis.

[28] In *Suggan versus Roadmaster Cycles (U) Ltd (2002) EA 25* an affidavit was not dated. Justice Mpagi – Bahigeine J. A.,(as she then was) held that it is trite that defects in the jurat or any irregularity in the form of the affidavit cannot be allowed to vitiate an affidavit in view of Article 126(2)(e) of the 1995 Constitution, which stipulates that substantive justice shall be administered without undue regard to technicalities. She further held that a judge has powers to order an undated affidavit to be dated in court or that the affidavit be re-sworn before putting it on record and may penalize the offending party in costs.

[29] The import of the decision in *Col. (Rtd.) Dr. Besigye Kizza versus Museveni Yoweri Kaguta and another* and the case *Suggan versus Roadmaster Cycles (U) Ltd* cited above is that defectsin the form of affidavits are curable. In *Nabukeera Hussein Hanifa versus Kibuule Ronald and another High Court Election Petition No. 0017 of 2011*, the Court was faced with similar facts, as in this case. In a bid to cure the defect in the impugned affidavit, the Court ordered that a supplementary affidavit of the judicial officer before whom the oath was taken be made before the next hearing of the petition. In the instant case, the preliminary objection was raised in the final submissions. Making a similar order, that the defect in the affidavit should be cured by the judicial officer swearing an affidavit confirming commissioning the affidavit, would further delay the determination of this application. I have therefore decided to disregard the impugned affidavits which do not comply with Rule 9 of the *Commissioner for Oaths Rules*. In any case, counsel for the Applicant did not make any effort to have the defect in the affidavits cured during the hearing.

[30] I however do not agree with the submission counsel for the Respondent that without the impugned affidavits, the application remains hanging without any evidence to support it. The 1st Applicant swore a supplementary affidavit on the 9th March 2023, which affidavit was not challenged, detailing the grounds of the application. In addition, this application does not need evidence. It requires the Court to examine the record of the lower Court and the record of the appeal in order to determine this application. Therefore, whereas I agree with counsel for the Respondent that the affidavits of the Applicant filed on the 24th May 2021contravene Rule 9 of the *Commissioner for Oaths Rules* and ought to be struck off, which I do hereby strike them off the court record, I do not agree with counsel that the striking off the affidavits have any bearing on the competency of this application.

[31] The 2nd preliminary objection was that the 1st and 2nd Applicants swore affidavits in support of the application on behalf of the other applicants without any letter of authority or power of attorney by the 3rd and 4th Applicants. In *Bankone Limited versus Simbamanyo Estaes Limited HCMA No. 645 of 2020* where a similar objection was raised, my learned brother Judge Stephen Mubiru had occasion to consider several available decisions positing the principle that a person is not to swear an affidavit in a representative capacity unless he or she is an advocate or holder of power of attorney or duly authorized and that where there is no such written authority to swear on behalf of other, the affidavit is defective. According to Justice Stephen Mubiru, there is no basis for that principle in the rules of evidence nor the rules of procedure. The principle appears to have been developed from the analogy of representative suits, which in his view was misplaced. He thus held that;

*"Affidavits are a means of adducing sworn, written evidence and must be used in applications where sworn evidence is required by the court. The validity of the affidavit therefore is subject to the same rule as that which governs oral evidence found in section 117 of The Evidence Act, to wit; all persons are competent to swear an affidavit unless the court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind."*

## [32] Justice Stephen Mubiru further held that;

*"From the above discourse it then becomes clear that throughout the web of legal provisions relating to affidavits, one golden thread is always to be seen; that what is required in affidavits is the knowledge or belief of the deponent, rather than authorisation by a party to the litigation. Their content is dictated by substantive rules of evidence and their form by the rules of procedure. Competency to sear an affidavit* *is pegged to ability "to depose to the facts of the case," which in turn is circumscribed by the deponent's ability to "swear positively to the facts," on account of personal knowledge or disclosure of the source, where that is permitted."*

[33] I find the above decision highly persuasive in this matter. I have read all the affidavits of the 1st and 2nd Applicants. They do not state that they swore the affidavits on behalf of the 3rd and 4th Applicants. In addition, there is no legal requirement for the 1st and 2nd Applicant to obtain authorization or power of attorney from the 3rd and 4th Respondent before deponing their affidavits. I therefore find that the 2nd preliminary objection has no merit.

[34] On the merit of this application, a consequential order is an order which gives effect or meaning to a judgment or ruling. It is traceable or flowing from the judgment or ruling prayed for and made consequent upon reliefs claimed by the plaintiff or applicant. It must be incidental and flow directly and naturally from the evidence and more so if the justice of the case demands, from reliefs claimed by the plaintiff or applicant. It is an offshoot of the main claim and it owes its existence to the main claim. It cannot be granted where it introduces an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial, which does not fall in alignment with the original reliefs claimed in the suit or application, or where it was not in the contemplation of the parties that such relief would be the subject-matter of a formal executory judgment or order against either side to the dispute. See: *Kalibaala Vincent and anothers versus Attorney General High Court Miscellaneous Application No. 70 of 2015*; *Mugerwa John Bosco and another versus Mss Xsabo Power Ltd High Court Miscellaneous Application No. 273 of 2018*; *Dr. Joseph Kabuubi and another versus Wilson Kashaya and 3 others HCCS No. 0385 of 2020;* and *Pentecostal Assemblies of God Limited versus Joel Mukulu and another HCMA No. 0290 of 2022*.

[35] Therefore, the Court should not view the power to make consequential orders as a blanket cheque to go on a voyage of discovery to make orders that are in conflict with the reliefs or with the evidence which was adduced in court, thereby introducing extraneous matters. A party is not entitled to a relief he has not established in his favor by seeking a consequential order.

[36] In the instant case, no evidence was led on the exact location of the land measuring 100 meters x 100 meters. No evidence was led as to any physical features which form the boundsry of the 100 meters x 100 meters. The 1st Applicant conceded to this fact. During the trial before the lower Court, no witness mentioned about land measuring 100 meters x 100 meters in evidence. As I have stated in paragraph 6 above, D. W.1 stated that the part of the suit land which was given to Donasiano Odiya by Peter Oola Labara was 2 gardens measuring 2 acres with a homestead. D. W.2 stated that the part of the suit land which was given to Donasiano Odiya by Peter Oola Labara was measuring 2 acres. D. W.4 testified that according to his estimate, the part of the suit land which was given to Donasiano Odiya by Peter Oola Labara is about 7 acres. D. W.5 testified that the land given to Donasiano Odiya by Peter Oola Labara is big but cannot reach 100 acres. He stated that he was given about 5 gardens.

[37] The evidence at the locus does not also clarify the exact location the land measuring100 meters x 100 meters. As I have stated in paragraph 9 above, the Respondent showed to the Court where their former house, which was made of mud and wattle, was. Both D. W.1 and D. W.4 indicated to the court that the Appellants had no claim over that area. The trial Magistrate made a sketch map which was to indicate the area where the Applicants do not have a dispute. The area includes the land where Wii Anaka Primary School is which is clearly in dispute.

[38] In light of those inadequacies in the evidence of the Applicant which was adduced before the trail Court, counsel for the Applicant has argued that this court is empowered to see that the omission is rectified in all possible ways including but not limited to, having the 100 meters x 100 meters surveyed under the supervision of the Court or working with the parties or the Applicants to identify and map out the 100 meters x 100 meters. I do not agree with counsel, as that would be introducing fresh evidence which was not adduced during the trial. In any case, the parties are not in agreement over the issue. That approach would mean that this Court would have retry the case, which is not permissible in an application for consequential orders. The Court would be going on a voyage of discovery to make orders that are in conflict with the evidence led before the trial Court.

[39] In the end, I find that this is not a proper case in which this Court can give a consequential order for eviction or vacant possession from land which location is unknown and uncertain. The Applicant was under a duty to adduce evidence of the exact location of the 100 meters x 100 meters in the evidence and possibly show physical features marking boundaries of the land to assist in executing any order that may be issued, but did not do so. The Respondent has indicated that he has already applied for leave to appeal to the Court of Appeal over the same issue. In my view, the Court of Appeal is better placed to make a determination on whether this Court was right to have made a judgement on appeal in the manner it did and issue appropriate orders.

[38] In the end, I find that this application has no merit. It is accordingly dismissed with costs to the Respondent.

I so order.

Dated and delivered by email this 14th day of May 2024.

Phillip Odoki

Judge.