Namusoke and Another v Mbaine (Miscellaneous Application 288 of 2022) [2024] UGHCCD 116 (23 July 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO. 288 OF 2022 (ARISING FROM CIVIL REVISION NO. 17 OF 2018) (ARISING FROM CIVIL SUIT NO. 004 OF 2016 OF ENTEBBE CHIEF MAGISTRATES COURT)**

**1. PROSSY NAMUSOKE 2. CHRISTOPHER KAKEMBO ::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS VERSUS MBAINE ARCHANGEL ::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE: HON. JUSTICE BONIFACE WAMALA**

### **RULING**

## **Introduction**

[1] This application was brought by Notice of Motion under Section 98 of the CPA, Section 33 of the Judicature Act and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules seeking orders that;

- a) A consequential order doth issue for vacant possession of property located at Buzzi Sissa sub county Wakiso District against the Respondent, his agents, servants or any other person or entity deriving authority. - b) A consequential order be made ordering the Respondent to hand over the certificate of title for land comprised in Busiro Block 404 Plot1052 land at Buzzi Sissa to the Applicants to enable the 1st Applicant transfer it into her names. - c) The costs of the application be provided for.

[2] The grounds of the application are set out in the Notice of Motion and in an affidavit in support of the application deposed by **Christopher Kakembo**, the 2nd Applicant. Briefly, the grounds are that the Respondent filed Civil Suit No. 004 of 2016 against the Applicants in Entebbe Chief Magistrates Court upon which an order for vacant possession of the suit premises was granted. On the basis of the decree of the trial court, the Respondent applied for execution and the Applicants were evicted from the suit premises. The Applicants filed Revision Cause No. 17 of 2018 which was determined in their favor by the Court declaring the judgment and decree of the trial court as being null and void for want of jurisdiction and accordingly set them aside. The deponent averred that before the judgment and orders of the trial court in the said civil suit, the Applicants were in occupation and possession of the suit premises and the Respondent is now illegally in occupation of the suit premises which were constructed by the Applicants. He further averred that the Applicants continue to suffer irreparable damage having been deprived of their right to use and occupy their matrimonial house. He concluded that their application for consequential order is for an eviction order; to give effect to the High Court Order vide Revision Cause No. 17 of 2018.

[3] The application was opposed through an affidavit in reply deposed by **Mbaine Archangel**, the Respondent who stated that in the Ruling in Revision Cause No. 17 of 2018, the Court advised the Respondent to institute a fresh suit against the Applicants. The Respondent filed HCCS No. 136 of 2019 against the Applicants in the Land Division. He also filed an application for a temporary injunction vide M. A No. 1869 of 2022 which was granted. The Applicants also filed HC Civil Suit No. 0107 of 2023 against him and the tenants on the disputed land, still in the Land Division. The Respondent averred that the fact that there are temporary injunction orders by the High Court in his favour, then granting the instant application will lead to collision and confusion in the administration of justice in the matter. He concluded that the instant application is overtaken by events, has no relevance and should be dismissed.

## **Representation and Hearing**

[4] At the hearing, the Applicants were represented by **Mr. Mulindwa Hamis** from M/s Balyejjusa & Co. Advocates while the Respondent was represented by **Mr. Muhame Allan** from M/s Muhame & Associated Advocates. The hearing proceeded by way of written submissions which were duly filed by both counsel and have been taken into consideration in the determination of the matter before Court.

[5] The issue for determination by the court is **whether the application is a proper one for grant of the consequential orders sought**.

## **Submissions by Counsel for the Applicants**

[6] Counsel for the Applicants cited the case of *Davanti Union Ltd v Tony Kipoi Nsubuga & 2 Others, HC Miscellaneous Cause No. 193 of 2109* to the effect that the purpose of a consequential order is to give effect to a judgment of court. Counsel submitted that the instant application seeks to give effect to the ruling in Revision Cause No. 17 of 2018 which set aside the orders of the trial court. Counsel stated that the suit property ought to be in the hands of the party it was in before the decision of the trial court. Counsel argued that the Applicants are exercising their rights as owners of the suit property since the decree and orders upon which the Respondent secured possession thereof were rendered null and void and set aside by the court. Counsel submitted that the Respondent is in illegal occupation since the eviction of the Applicants from the suit premises was set aside and there is no appeal against the decision of the High Court. Counsel concluded with a prayer that the Court grants an order for the Respondent to handover vacant possession of the suit premises and the certificate of title thereof be handed back to the 1st Applicant.

#### **Submissions by Counsel for the Respondent**

[7] In reply, it was submitted by Counsel for the Respondent that the purpose of a consequential order is to give effect to a judgment of the court and it must not be granted if it amounts to a fresh and unclaimed or unproved relief. Counsel argued that there are numerous fresh claims over the same land between the parties to this application vide HCCS No. 136 of 2019 and the applications thereto plus HCCS No. 0107 of 2023 which are still before competent courts for determination. Counsel argued that the grant of this application would mean that the Applicants will go straight to the execution process and evict the Respondent or his agents before the determination of the two land claims before the High Court Land Division. Counsel concluded that it is in the interest of justice and fairness that this Honourable Court dismisses the application so that the parties can ably pursue their two cases before the Land Division to their logical conclusion and have the fate of each party finally determined.

#### **Determination by the Court**

[8] The position of the law is that a consequential order follows naturally in terms of consistency and giving effect to the main judgment or decision. It is an order flowing from a judgment or a given decision. It is essentially one which makes the principal order effective and effectual or which necessarily follows as being incidental to the principal order in the matter. It is an order founded on a claim of the successful party, ancillary or connected with the main relief granted that is made in order to work out or give effect to the final judgment or order of the Court. See: *Pentecostal Assemblies of God v Joel Mukalu & Anor HCMA No. 290 of 2022*.

[9] On the case before me, it is true that the present Applicants were evicted from the suit premises pursuant to the judgment and decree of the lower court, and that the Applicants successfully had the said decision of the lower court set aside vide Civil Revision No. 17 of 2018. The foregoing would imply that upon setting aside the decree and orders of the trial court, the status quo on the suit land would be reversed with the effect of undoing the execution that followed the decision of the lower court. In effect, the Applicants would be entitled to take back possession of the suit land. However, evidence has been led before this Court showing that upon disposal of Revision Cause No. 17 of 2018, the present Respondent was left at liberty to institute a proper suit in a court of competent jurisdiction. Indeed, the Respondent filed HCCS No. 136 of 2019 against the present Applicants in the High Court Land Division. Under the said suit, the Respondent obtained an order of a temporary injunction restraining all parties to the suit from interfering with the status quo on the suit land until disposal of the main suit. It is further claimed that the present Applicants went ahead and also filed HCCS No. 0107 of 2023 against the Respondent and the tenants that are in possession of the suit land; still in the High Court Land Division. This evidence has not been controverted.

[10] From the above facts, it is clear to me that the dispute between the parties is subject of litigation, awaiting final determination on the merits. It is also subject of an interlocutory injunctive order. This Court cannot be expected to issue any order with the effect or potential of contradicting the said court process and orders. I am therefore in agreement with learned Counsel for the Respondent to the effect that the circumstances in the present case are not proper for grant of the consequential orders sought in this application.

[11] Upon the above premises, therefore, the Applicants have not satisfied the Court on a balance of probabilities that this case merits grant of the consequential orders sought for. The application thus fails and is accordingly dismissed with costs to the Respondent.

It is so ordered.

*Dated, signed and delivered by email this 23rd day of July, 2024.*

**Boniface Wamala JUDGE**