Okello v Gulu District Land Board & Another (Miscellaneous Application 53 of 2023) [2024] UGHC 461 (17 June 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT GULU MISC. APPLICATION NO. 53 OF 2023 (Arising from Misc. Application No. 185 of 2021) (Arising from Misc. Cause No. 001 of 2021)**

**OKELLO LAWRENCE=====================================APPLICANT**

# **VERSUS**

**1. GULU DISTRICT LAND BOARD 2. ACAN HILDA=========================================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, Cap 71; Section 33 of the Judicature Act, Cap 13; and Order 1 rules 10(2), 13 & 22 and Order 52 rule 1 of the Civil Procedure Rules SI 71 -1. The application seeks for, leave of this Court to add Gulu City Land Board as a Respondent in Misc. Application No. 185 of 2021; an order that the Applicant be allowed to amend Misc. Application No. 185 of 2021 to include Gulu City Land Board as a Respondent; and an order providing for the costs of this application.

# **Background:**

[2] The Applicant filed an application for judicial review before this Court, vide Misc. Cause No. 001 of 2021, against the Respondents. In the application, he alleged that he is the registered proprietor of land comprised in Leasehold Register Volume HQT394 Folio 7 Plot 31 Gulu Avenue Road, Guku Municipality, Gulu District (hereinafter referred to as 'plot 31'). He stated that in the year 2020, he applied to acquire interest in a 10-meter piece of land adjacent to plot 31 (hereinafter referred to as 'the adjacent land'). His application was approved by Gulu Municipal Physical Planning Committee. He was advised and he did apply to the 1st Respondent for ownership of the adjacent land. Vide minute GDLB (40) min: 5/2020 (c) of 27th - 29th October 2020, the 1st Respondent approved his application to include the adjacent land in plot 31. After the approval, he sought, without success, to have the adjacent land surveyed. He was frustrated, ignored or deliberately failed by the Respondents who refused, ignored or failed to write a forwarding letter communicating the decision of the 1st Respondent to the Lands Office and requesting for instructions to survey the adjacent land. Instead, in February 2021 the Respondents, through the secretary of the 1st Respondent, wrote to him (the Applicant) notifying him of the intention of the Respondents to re – table and review his application to include the adjacent land to plot 31, which application had already been approved. He contended that the acts of the Respondents were illegal, irrational, improper, unreasonable, unfair, unjust, malicious and with ulterior motives.

[3] On the 30th July 2021, my learned brother Judge Ajiji Alex Mackay granted the application and issued, inter alia, an order of mandamus directing the 1st Respondent and its responsible officers to process the Applicant's certificate of title in accordance with its decision in the minute GDLB (40) min: 5/2020 (c) of 27th - 29th October 2020.

[4] On the 21st December, 2021, the Applicant filed before this Court Misc. Application No. 185 of 2021 alleging that the Respondents disobeyed the order of this Court by failing, neglecting and or refusing to process his certificate of title. He prayed that, the Respondents be found in contempt of the orders of this Court issued on the 30th July 2021; the Respondents officials, to wit, the Secretary of the 1st Respondent and the Senior Land Management Officer be arrested and committed in prison for a period of 6 months for disobeying the orders of this Court; the Respondents compensate him with Ugx 50,000,000/= (Uganda Shillings Fifty Million) for mental anguish, damages and inconveniences caused by the disobedience of the order of this Court; and the costs of the application be provided for.

### **Applicant's case:**

[5] The grounds of this application were set out in the Notice of Motion, supported by the affidavit of the Applicant. The gist of the Applicant's case is that following the elevation of Gulu Municipal Council into a City, plot 31 and the adjacent land is now vested in Gulu City Land Board. On the 3rd April 2023 and 4th April 2023, he demanded that Gulu City Land Board should comply with the orders of this Court of 25th August 2021 in Misc. Cause No. 001 of 2021 but its officials ignored his demand. He contends that Gulu City Land Board is now a necessary party in Misc. Application No. 185 of 2021 to enable the Court effectually and completely adjudicate upon and settle all questions involved in the application.

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

[6] The Secretary Gulu City Land Board, Ojok Obwona Michael, swore an affidavit in reply opposing the application. The gist of his contention is that, Gulu City Land Board was not a party to Misc. Cause No. 001 of 2021; is not aware of the nature of the application; and were not given the opportunity to participate in it. He further contended that the Applicant has not presented any application before Gulu City Land Board. He stated he is therefore baffled why Gulu City Land Board should be added as a party to Misc. Application No. 185 of 2021. According to him, contempt of court orders can only be committed by the person to whom an order is directed. He stated that the order in Misc. Cause No. 001 of 2021 was not directed to Gulu City Land Board as they were not a party to the application. He averred that Gulu City Land Board came into operation in July 2021 before the orders in Misc. Cause No. 001 of 2021 was issued. According to him, it is strange that the applicant did not find it necessary, at the time, to add Gulu City Land Board until now. He further contended that the Applicant filed Civil Suit No.024 of 2022 before this Court which is pending disposal. In that suit, there is an order of a temporary injunction restraining any of the parties from interfering with the land in issue until the disposal of the suit. In his view, this application is seeking to circumvent the temporary injunction and there is no useful purpose of adding Gulu City Land Board in Misc. Application No. 185 of 2021.

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

[7] The Applicant was represented by Mr. Isaac Okae of M/s Okae, Basalirwa, Kakerewe & Co. Advocates, while the Respondents were represented by Mr. Walter Okidi Ladwar of M/s Ladwar,Oneka & Co. Advocates. The Court gave directives to counsel to file written submissions, which directives have been complied with, although counsel for the Respondents filed their submission outside the time directed by court. I have all the same considered the late submissions in the interest of justice.

[8] Counsel for the Applicant submitted that before Misc. Application No. 185 of 2021 could be heard and disposed of by Court, Gulu City was created and the land in issue is now under the jurisdiction of Gulu City Land Board. Counsel argued that Gulu City Land Board is now a necessary party to Misc. Application No. 185 of 2021 to enable the Court effectually and completely adjudicate upon and settle all questions involved in the application. In support of his submissions, counsel relied on, Order 1 rules 10(2) of the *Civil Procedure Rules SI 71 -1*; the case of *Samson Sempasa versus P. K Sengendo HCMA No. 577 of 2013*; and *Departed Asians Property Custodian Board versus Jaffer Brothers Ltd SCCA No. 09 of 1998.*

[8] Counsel for the Respondent on the other hand submitted that the adjudication of Misc. Cause No. 001 of 2021, which is for judicial review, is complete. For that matter, counsel argued, Gulu City Land Board will not play any part in the hearing of the application for judicial review which is already complete.

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

[9] I have carefully considered the application the affidavits in support and against the application and the submissions of both counsel. The law on joinder of necessary parties is found in Order 1 Rules 10(2) the Civil procedure Rules, which provides that;

*"The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.* Underlined for emphasis.

[10] The criteria used to determine whether the presence of a person is necessary or not under Order 1 Rule 10(2) of the Civil Procedure Rules was well stated in the case of *Departed Asians Property Custodian Board v. Jaffer Brothers Ltd* (supra). In that case, Mulenga J. S. C held that;

*"For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in* *the suit would legally affect the interest of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such person joined so that he is bound by the decision of the court in that suit. Alternatively, a person qualifies, (on application of a defendant)to be joined as a co-defendant, where it is shown that the defendant cannot effectually set up a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person."* Underlined for emphasis.

[11] Therefore, the issue for the determination of this Court is whether the orders, which the applicant seeks in Misc. Application No. 185 of 2021 would legally affect the interest of Gulu City Land Board, and whether it is desirable, for avoidance of multiplicity of suits, to have Gulu City Land Board joined so that it is bound by the decision of the court in Misc. Application No. 185 of 2021.

[12] As I have already stated in paragraph 4 above, the Applicant prayed in Misc. Application No. 185 of 2021 that this Court finds Gulu District Land Board and Acan Hilda to be in contempt of the orders of this Court dated 30th July 2021. Proceedings for contempt of court orders, by their very nature, are against the individual contemnors who are accused to have disobeyed the order of court. That is precisely why to be found in contempt, it must be proven, among others, that the party accused: (i) knew the order existed, (ii) had the ability to comply with the order but violated it knowingly, and (iii) lacks just cause or excuse for the violation. Civil contempt, like the one which is the subject of Misc. Application No. 185 of 2021, is designed to coerce the contemnor into compliance. It is prospective because it focuses on getting the contemnor to comply with the court order in the future. The purpose is remedial, and for the benefit of the complainant. See: *Richard Adoi Adome versus Uganda Electricity Generation Company Limited (UEGCL) HCMA No. 1088 of 2022*.

[13] In my view, if this Court were to find that Gulu District Land Board and Acan Hilda are in contempt of the orders of this court in Court in Misc. Cause No. 001 of 2021, the only way they can be ordered to purge themselves of the contempt, would be to order them to comply with the Court order, by processing the certificate of title of the land in question and yet the land in question is now, by operation of the law, vested with Gulu City Land Board. In effect, the decision to force the Respondents to comply with the court order will no doubt affect the interest of Gulu City Land Board as the person now vested with the land in question.

[14] In addition, the Applicant has alleged in this application that on the 3rd April 2023 and 4th April 2023, he demanded that Gulu City Land Board should comply with the orders of this Court of 25th August 2021 in Misc. Cause No. 001 of 2021 but Gulu City Land Board ignored his demand. What that means is that the Applicant is alleging that Gulu City Land Board is also in contempt of the same order. This would ordinarily mean that a separate application for contempt against Gulu City Land Board would have to be filed. In order to avoid multiplicity of applications for contempt of the same order, it is prudent that Gulu City Land Board is joined as a party in Misc. Application No. 185 of 2021.

[15] I have not found any merit in the contention of the Secretary Gulu City Land Board that Gulu City Land Board, was not a party to Misc. Cause No. 001 of 2021; is not aware of the nature of that application; and was not given the opportunity to participate in it. I do not find any merit in his contention that, the Applicant has not presented any application before Gulu City Land Board; that contempt of court orders can only be committed by the person to whom an order is directed; and that the application is seeking to circumvent the temporary injunction. In my view, those arguments can be presented to Court by Gulu City Land Board when it is joined as a party and Court will pronounce itself on those arguments. The arguments have no bearing on the determination an application for grant of leave to the Applicant to join Gulu City Land Board as a Respondent in Misc. Application No. 185 of 2021.

[16] I have equally found no merit in the submissions of counsel for the Respondents that the adjudication of Misc. Cause No. 001 of 2021 for judicial review is complete and therefore Gulu City Land Board cannot play any part in the hearing of the same application which is already complte. With all due respect, it would appear that counsel for the Respondent was under the misapprehension that Misc. Application No. 185 of 2021 was seeking to join Gulu City Land Board as a party in Misc. Cause No. 001 of 2021, which is not the case.

[17] In the end, I find that this application has merit. It is accordingly granted; the Applicant is granted leave to amend his application in Misc. Application No. 185 of 2021 by adding Gulu City Land Board as a Respondent. The costs of this application shall abide the outcome of Misc. Application No. 185 of 2021.

I so order.

Dated and delivered by email this 17th June 2024

Phillip Odoki

**Judge.**