Namuteete v Ndiwalana (Miscellaneous Application 752 of 2023) [2023] UGHCLD 228 (4 August 2023)

### THE REPUBLIC OF UGANDA

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

#### (LAND DIVISION)

#### **MISCELLANEOUS APPLICATION NO.752 OF 2023**

#### (Arising from Miscellaneous Cause No.10 of 2023)

NAMUTEETE HENRY::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### NDIWALANA GEORGE WILLIAM::::::::::::::::::::::::::::::::::

Before: Lady Justice Alexandra Nkonge Rugadya.

#### Ruling.

The applicant by notice of motion brought this application under the provisions of Section 10 & 33 of the Judicature Act cap.13, Sections 82 & 98 of the Civil Procedure Act cap. 71, and Order 46 (1) (a) (b) (4) & (8) of the Civil Procedure SI 71-1 seeking orders that the orders of this court vide *Miscellaneous Cause No.10* of 2023 be reviewed owing to an apparent error on the face of the record. It also seeks that costs of the application be provided for.

#### Grounds of the application:

The grounds of the application are contained in the affidavit in support thereof deponed by Mr. Namuteete Henry Mugwanya, the applicant herein. He states that he instituted **Civil Suit No.32 of 2022** against the respondent for trespass on land 20 comprised in **Busiro Block 542 plot 24 & 25** and that the respondent was found to be a trespasser.

That when the respondent disobeyed the decree and judgment of this court by selling of the suit land which had already been decreed to belong to the applicant, the applicant instituted Miscellaneous Application No.154 of 2021 against the respondent who was found to be in contempt of court.

That the respondent then instituted Civil Appeal No.72 of 2022 arising from Miscellaneous Application No.104 of 2020, and also proceeded to lodge a caveat on the suit land knowing that court had already found him to be in contempt.

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That the applicant instituted Mlscellaneous Cause No.70 of 2023 seeking an order of removal of the respondent's caveat ald when this court gave its ruling, it held that the issues arising therefrom would be considered and determined in Clull Appeal No,72 oJ 2O22. However that this court in its judgement in Ctrttl Appeal No.72 of 2022 did not consider the merits of Mlscellaneous Ccuse No.7O oJ 2O23.

That there is an error apparent on the record warranting a review of the ruling and orders of this court in Mlscellaneous Appllcatlon No.7O oJ 2022' and that this court is vested with the jurisdiction to grant the prayers herein for the ends ofjustice to meet and it is in the interest of justice that this application is granted.

The respondent was duly served with court process as per the directives of this court, but he did not iile an aflidavit in reply. In consequence, this application stands unchallenged. 10

The applicant through his lawyers, M/s John F. Ssengooba & Co. Adaocates and SebanJa & Co. Adaocates liled written submissions which I have considered in the determination of this application.

The main issue for consideration is whether there is justification for a review of the orders of this court.

# Consideration bu court:

Sectlon 82 Cttttl Procedure Act Cdp, 7I, reinforced by Order 46 rale 7 oJ the Clull Procedure Rules Sf 77-7 wh.ic}:, provides that:- 20

nAng person conslderlng htmlher se\$-aggrleued bg a decree or order Jrom uhlcl'r. an appeal is alloued but Jrom whlch no appeal has been preJerred or bg a decree or order Jrom uthlch no appeal is herebg qlloued and who from the dlscovery o;f neut and lmportant matter of evidence uthlch afr.er the exerclse oJ due dlllgence u)(E not utlthln his or her knowledge or could not be produced bg hlm or her at the tlrne uhen the decree was passed. or order utas made or on account of some mlstake or error dpparent on the face of the record or Jor ang other sulficlent reason deslres to obtaln a realettt o;f the decree passed. or order made a,gc;lnst hlm or her mag qPPlg for a reulettt of the Judgment to the court tohlch passed the decree or made the order."

The court in Re: Nakhrubo Chemists (U) Ltd [1979] HCB 12 while interpreting Order 46 held that an applicant in order to succeed in a claim for review has to show

2 M-l't

first, that there is discovery of a new and important matter of evidence previously overlooked by excusable misfortune.

Secondly, that there is discovery of some error or mistake apparent on the face of the record; and thirdly, that review ought to be made by court for any other sufficient 5 reason.

In YusuS[ us. Nokorach [1971] EA IO4, it was held that any other sufficient reason ought to be read as meaning sufficiently of a kind analogous to the first two grounds.

In the present application, the applicant seeks orders that the ruling and orders of this court be reviewed on grounds that there is an error apparent on the face of the record.

The applicant avers t1at he instituted Mlscellaneous Cquse No,7O oJ 2O23 seeking an order of removal of the respondent's caveat and when this court gave its ruling, it held that the issues arising therefrom would be considered and determined in Ciull Appeal No.72 of 2O22. Coltrt in its judgement in Clull Appeal No.72 of 2022 however did not consider the merits of Mlscellaneous Co:use No.70 oJ2023,

In the application the prayers were:

- a. That the respondent should show cquse uthg tlrc cdoedt lodged on the appllcant's land comprised in Buslro Block 542 plots 24 & 25 should not lapse; - b. The crrueo:t lodged bg the respondent be remoaed,l 20 - c, The respondent be Jound ln contempt oJ court orders; - d. The respondent be ordered to pag exemplary damages of Ugx TO,OOO,OOO/=; - e. The respondent be flned Ugx 2O,OOO,OOO as s@nctlons Jor hls contemptuous conduct;

,. Costs oJ the appllcatlon be proulded for.

In the short ruling delivered by this court on 28th February, 2023 this is what court had to say:

The posstbllltg has been coftsldered bg thts court that ordets sought lra thts appllcatlon mag or mag not haae lmpoct on the pendlng appeal:

Clvll Appeal No, 72 of 2022 uthlch was Jlled before thls appllcatlon and ln respect of uthlch appeal dlrectlves ha ue nout been lssued,

Accordlnglg, the conslderatlon oJ thls appllcatlon and all arguments as ralsed tor or ln obJectlon to that appeal, lncludlng the competence of that appeal as ralsed bg counsellor tlv a.ppllcant ln MA No. 7777/2O22' ls pendlng and shall be made afier perusal bg court ol the submlsslons made bg both partles ln respect oJ tlu pendlng appeal.

Costs shall aualt tlrc outcone of the declslon ln Ctrit Appeal No, 72 of 2022.

The judgment dismissing the appea-l was delivered on 17& Aprrl, 2023. This court declared that since the orders granted by the Registrar in Mlscellafteous Cause No.29 oJ 2O22 were a nullity, and of no legal effect. 10

Court therefore set aside the said appeal: Ciull Appeal No. 72 of 2O22 which had been based on an illega-l order having been frled without obtaining leave of court to

appeal. -t5

> It is worth noting that under those circumstances there was no error on the record as the court merely stood over the hearing of the application. What is clear is that the dismissal left the prayers sought in Mlscellaneous Cause No, 7O oJ 2023 hanging in ba-lance and remained unresolved.

Against that backdrop, this court was under obligation to dea-l with the merits of Mlscellaneous Cause Jvo. 70 oJ2O23. 20

Sectlon 33 oJ the Judlcadtre Act, Cap.73 empowers this court to grant such remedies as are lawful to enable the frnal determination of all matters of controversy between parties.

As noted earlier, in Mlscelloneous Appllcatlon No.lO oJ 2023 the applicant herein sought among other orders that the respondent should show cause why the caveat lodged on the land comprised in Busiro Block 542 plots 24 & 25 should not be removed. 25

30 That the respondent be found in contempt of court orders; the respondent be ordered to pay exemplary damages of tlgx 7O,OOO'OOO/= (Ugdnda shilllngs ten mllllon); and be fined Ugx. 2O,OOO,OOO (Ilganda shilrlngs tuentg rnllllonf as sanctions for his contemptuous conduct; and that costs of the application be provided for.

The brief background to that application as contained in the affrdavit in support was that the applicant was the plaintiff in Cluil Sult No,32 of 2O2O which he filed against the respondent at the ChleJ Magistrates Court oJ KalJansl.

The court declared that the applicant was the lawful owner of the suit kibanja, ar,.d the respondent was found to be a trespasser and ordered therefore to vacate the suit kibanja.

That the respondent who was well aware ofthe decree of court against him has never appealed the said order and has chosen to deff the same by selling the srit kibanja to a one Nabirye Sharon.

That the applicant filed Mlscellaneous Appllcat{on .iVo. 154 of 2022 against the respondent for contempt of court and court in that application indeed found that the respondent was in contempt of court. 10

He was ordered to apologize and also surrender the suit kibanja by 18ttt October, 2022. Tl:re respondent however did not comply with the same, nor did he appeal the order.

In addition, that the respondent instead lodged a caveat on the suit land comprised in Busiro Block 542 plots 24 & 25, That the affidavit in support ofthe caveat was however tainted with falsehoods and illega1ities, which could not support the caveat.

That the kibanja wlnich is the subject of the caveat in issue is found in Kajjansi Subcounty Wakiso district whereas the applicant's land is located in Kasanje town council and it is the applicant's belief that not only does the respondent lack caveatable interest on the applicant's land, he also acted in contempt of court. 20

The respondent on his part stated that he was bor:n and raised on the land at Bukwe/Bogogo Village Kasanje Sub county Wakiso district and that on 24th Aprll

- 2014, he purchased a kibanja at Bukwe/Bogogo Village Kasanje Sub county Wakiso district from a one Sawulo Wayita, one of the beneficiaries of the estate of the late Leubeni Sebulindya and that ever since purchasing the same, he has been in possession and utilization thereof by building a residential house, planting coffee, bananas, and avocados thereon. 25 - That on 16th March 2019, the respondent was approached by the applicant who introduced himself as the owner of the land comprised in land comprised in Buslro Block 542 plots 24 & 25 where the respondent's kibanja is located. 30

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The applicant demanded that he be paid for the mailo interest in the land, or the kibanja be shared between them in exchange for the mailo interest on part of the kibanja slnce he, (the respondent) did not have money to purchase the mailo interest.

5 That the applicant and his family then entered into a memorandum of understanding with the applicant to equally share the kibanja giving the applicant 0.34 cares/34 decimals. A certificate of title was to be issued in the names of the respondent's son's names, which was never done.

That instead the applicant had sued the respondent for trespass in Ctvtl Sult No.32 oJ 2O2O tn the ChleJ Mqglstrdtes Court oJ Ko,lJo:ftsl at KalJansl wherein the applicant obtained an ex-parte judgment in his favour and that he has since attempted to evict the respondent.

The applicant then frled Mlscellaneous Appllcatlon No.7O4 of 2O2O seeking to set aside the trial magistrate's judgement, but the same was dismissed. The applicant then frled Ciatl Appeal No.72 oJ 2O22 challenging the dismissal of the application to set aside the trial magistrate's judgement, and as noted, the same was also dismissed.

According to Seglrlnga Gerald aersus Mutebl Innocent H. C,M. A No. O87 oJ 2076,

"The prlmary ob]ectlae o:f d. cdtEdt ls to glae the colao:tor temporary protectlon, It ls not the lnten,tlorr o:f the ldu tha,t the co:taa:tor should relax and, slt back tor eternlfu utlthout taklng posltfu;c steps to handle the controaersg, so ds to determlne the rights oJ the partles qflectcd bg Its exlstence.'

It is trite law that for a caveat to be va1id, the caveator must have a caveatable interest, legal or equitable, in the land /Sectlon 139(l) oJ the Reglstro;tlon o.f T.ltles

Act; Sentongo Produce & CofJee Farmers Ltd uersus Rose Nakafuma Mugllse H,C. M. A No.69O of 7999; Hunter Intastnents Ltd aersus Ltt)dnganga. & Anor H. C. M. C. No. OO34 of 2O72. 25

In the case before this court, it is not in dispute that the applicant herein was declared the lawful owner of the suit land vide Clull Sutt No.32 of 2O2O, while the respondent was declared a trespasser thereon.

It follows therefore that in the absence of an order setting aside, or turning over the trial magistrate's decision in Ctril Sult No.32 of 2O2O, the applicant is the lawful

owner of the suit land, and the respondent has no interest therein thus cannot sustain a caveat on the land.

It is also not in dispute that the respondent who did not file a reply to this application by implication therefore admitted that he did not comply with the orders of the lower court and in defiance of the orders he sold t}:.e kibanja to a third party.

A party who fails to comply with a court order without proper explalation does so at his/her own peril. Whether unclear, null or irregular a party, it cannot afford or be permitted to disobey an order for as long as it remains undischarged. (see also: Attorneg General os Klruhurd Dlstrict Locdl Gooernmeftt & 2 others HCMA No. 35 oJ 2012| Court frowns upon any acts in violation of its orders.

The above therefore justify the granting of this application, in the terms below:

- 7. The ca ueats lodged bg the respondent on land comprlsed ln Buslro Block 542 plots 24 & 25 be aacated lmmedlatelg; - 2. T|te respondent ls ordered to pdg Agx 2OTOOOTOOO/=, Jor contempt of court orders. 15 - 3. No orders cs to costs.

<sup>20</sup> .... M,a"-

## Alexand.ra Nkonge Rugadga

Judge

4th August, 2023

6 4l{roe <sup>3</sup> tr'Cn"d0^d ' a\*\*t6