Ogbagiorgis v Nakaye & 5 Others (Miscellaneous Application 2918 of 2024) [2025] UGHCLD 27 (17 February 2025)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA**

#### **MISCELLANEOUS APPLICATION NO. 2918 OF 2024**

#### **ARISING FROM MISC. APPLICATION NO.2029 OF 2024**

#### **(ARISING FROM CIVIL SUIT NO.0691 OF 2024)**

#### **OGBAGIORGIS TESFALEM GHERAHTU ::::::::::::::::::: APPLICANT**

#### **VERSUS**

#### **1. NAKAYE LOI**

**2. NAMULI ALEX**

**3. LUUTU MUKEDI ::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **4. KABUYE WILLIAM**

**5. NAMBASA DOROTHY CHRISTINE**

#### **6. COMMISSIONER LAND REGISTRATION**

## **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

#### *Introduction;*

1. This is an application by Notice of Motion brought under section 33(now section 37 of the revised laws) of the Judicature Act, section 98 and 82 of the Civil Procedure Act and Order 46 rule 1 and 8 of the Civil Procedure Rules for orders that;

- i) That the court ruling and order vide Misc Application No. 2029 of 2024 be reviewed and set aside. - ii) Without prejudice to the foregoing that the applicant be added or joined as a defendant vide Civil Suit No. 0691 of 2024 and all applications arising there from. - iii) Costs of the application be provided for

#### *Applicant's evidence;*

- 2. The application is supported by an affidavit in support which briefly states as follows; - i) That the 1st and 2nd respondents filed Civil Suit No.069 of 2024 against the 3rd,4th,5th and 6th respondents claiming that they have a beneficial interest in part of the suit land situate at Kyadondo Block 253 Plot 1583 Kampala at lukuli and a declaration that the 3rd, 4th, 5th and 6th respondents did not acquire good title. - ii) That be that as it may, on the 23rd of July 2024 I purchased land comprised in Kyadondo Block 253 Plot 1583 Kampala from the said registered proprietor the 5th respondent

- iii) That I took physical possession of the land before I leased the same to Ghebru Micheal Brhane who registered his lease under instrument number KCCA 00126987. - iv) That I was informed by my lawyers that Civil Suit No. 0691 of 2024 and Misc. Application No. 2029 of 2024 were filed 3 days after I purchased the suit land and the ruling in the said application was delivered on the 2nd of September 2024. - v) That the 6th respondent in their written statement of defence informed court of the history of the ownership of the land including the fact that I was the registered proprietor. - vi) That there is an error apparent as to the ownership of the suit land on the face of the record which should not be condoned in this court. - vii) That issuing the said temporary injunction on the suit land without affording me a fair hearing amounted to gross violation and a justifiable ground for review and setting aside the same. - viii) That I am aggrieved by the ruling of the honourable court since am the registered proprietor of the suit land.

#### *Respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the 1st respondent which briefly states as follows; - i) That I depone this affidavit with capacity to swear the same on behalf of the 2nd respondent. - ii) That the applicant is not an aggrieved party having leased the same land to one Ghebru Micheal Mrhane for 99 years. - iii) That the 5th respondent and the applicant never acquired good title to the suit land. - iv) That there is no error apparent on the face of record since the 5ht respondent in his affidavit in reply in the temporary injunction application did not mention anything to do with the sale of the suit property to the applicant. - v) That the applicant is not aggrieved by the order in the said application since he is not in occupation of the suit land. - vi) That 1 and 2nd respondent have filed an application to add Ghebru Micheal Brhane as a party to the main suit to enable court determine all the issues involved. - vii) That I have no objection with the applicant being added as a party to the main suit.

#### *Representation;*

4. The applicant was represented by Counsel Sekitto Faisal of M/S Ssekitto & Company Advocates whereas the 1st and 2nd respondents were represented by Counsel Nambubi Jane of M/S Nuwagira, Tusiime Advocates and the 5th respondent was represented by Counsel Moses Kiyemba. Only the applicant, 1st and 2nd respondents filed their affidavits and respective submissions which I have considered in the determination of this matter.

#### *Issues for determination;*

*Whether the temporary injunction granted by this court can be reviewed, discharged, varied and set aside?*

*Whether the applicant should be added or joined as a defendant vide Civil Suit No. 691 of 2024?*

*What remedies are available to the parties?*

#### *Resolution and determination of the issues?*

5. Counsel for the 1st and 2nd respondents raised a preliminary objection which this court shall first determine before proceeding with the merits of the application.

- 6. The preliminary objection raised by counsel for the 1st and 2nd respondent relates to the fact that the affidavit in support states that it's sworn by the applicant and signed by Gollapalli Mohan Rao, raising questions as to whether the applicant appeared physically before commissioner for oaths as required under the law. - 7. Counsel for the 1st and 2nd respondents submitted that rule 7 of the commissioner for oaths rules provide that a commissioner before taking an oath must satisfy himself or herself that the person names as the deponent and the person before him are the same and that the person is outwardly in a fit state to understand what he or she is doing. - 8. Counsel for the 1st and 2nd respondents further submitted that the said illegality rendered the affidavit as one that failed to comply with the statutory requirements and cannot be cured under article 126(2)e of the constitution. - 9. I take note of the submissions by counsel for the 1st and 2nd respondents. - 10. The perusal of the first part of the affidavit in support of the application reads that "*I OGBAGIORGIS TESFALEM GHERAHTU*

# *c/o M/S SF SSEKITO Co. Advocates of plot 75 Bukoto Street opposite Ruthent Towers house b st floor, P. O. Box 170366 Kampala do solemnly swear and state as follows;"*

- 11. However, the last part of the said affidavit in support indicates that "SWORN AT KAMPALA by the said GOLLAPALLI MOHANA RAO" and signed by the same person before the commissioner for oaths. - 12. The said averments indicate that it's not the applicant who signed the said affidavit in support but rather the same was signed Gollapalli Mohana Rao. - 13. The commissioner for oaths rules under rule 7 state that a commissioner before taking an oath must satisfy himself or herself that the person named as the deponent and the person before him are the same…" - 14. I am of the view that it's not the applicant who deponed the said affidavit and the person who deponed the same is not a party the instant application nor its not indicated anywhere that he was deponing the same on behalf of the applicant. - 15. The supreme court of Uganda in **Kasala Growers Coorperative Society vs Kakooza Jonathan and Anor SCCA No. 019 of 2010**

held that a defective affidavit is one where the deponent did not sign or date the same whereas an affidavit that has failed to comply with a statutory requirement is one where a requirement of the statute has not been complied with and the latter is fatal.

- 16. In the instant application it appears that the person referred to as the deponent is not the one who physically appeared before the commissioner for oaths to sign the said affidavit something that's contrary to rule 7 of the commissioner for oaths rules. Further the deponent of the said affidavit is not a party to the instant application and it's not indicated anywhere in the said affidavit that he deponed the same on behalf of the applicant. - 17. Affidavit evidence is one which should be within the knowledge of the party, but before court relying on the same evidence, it must satisfy its self that the person who deponed the same is the right person to do so. Court cannot rely on evidence of a deponent who is not a party to the application nor holds any authority or capacity to depone the said affidavit, such evidence would not only be misleading but unfounded as well. - 18. It's to the finding of this court that the affidavit in support of the instant application is hereby struck out for non-compliance of

the statutory requirements and the same cannot be relied upon by this court. That leaves the application without a supporting affidavit rendering the same incompetent.

19. Therefore, the preliminary objection raised by counsel for the 1st and 2nd respondent is upheld by this court and the instant application is hereby dismissed with no orders as to costs.

### **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE**

#### **17 th/02/2025**

#### **Delivered electronically via ECCMIS on this 17 th day of February 2025.**