Pancras John Mukasa Sebuwufu v Kamoga Muhammad (Miscellaneous Application No. 0001 of 2025) [2025] UGHCLD 60 (18 April 2025)

#### **THE REPUBLIC OF UGANDA**

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

#### **(LAND DIVISION)**

#### **MISCELLENEAOUS APPLICATION NO. 0001 OF 2025**

# **(ARISING FROM MISCELLENEAOUS APPLICATION NO.2211 OF 2024)**

**(ALL ARISING FROM CIVIL SUIT NO. 0694 OF 2024)**

#### **PANCRAS JOHN MUKASA SSEBUWUFU ::::::::::::::: APPLICANT**

#### **VERSUS**

# **KAMOGA MUHAMMAD ::::::::::::::::::::::::::::::: RESPONDENT BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

#### *Introduction;*

- 1. This was an application by way of Notice of motion brought under Section 82 and 98 of the Civil Procedure Act, Order 46 Rules 1 & 8, Order 52 rule 1, 2 & 3 of The Civil Procedure Rules SI 71-1, for orders that: -, - i) The dismissal order of the temporary injunction in Miscellaneous Application No. 2211 of 2024 be reviewed or set aside and a temporary injunction be granted restraining the Respondent by himself and or his agents

acting under him or with his authority from alienating, subdivision, selling, constructing on, disposing of, carrying out any activity or any development on the suit land and interfering with the Applicant's possession of his property measuring 1.02 acres comprised in Kyadondo Block 80 Plot 275 land at Buwambo, Ssabawaali subcounty- Wakiso District.

ii) Costs of the application be provided.

## **Background;**

- 2. The Applicant filed Miscellaneous Application No. 2211 of 2024 against the Respondent for a grant of a temporary injunction, the matter was heard interparty and the same was dismissed by the Learned Assistant Registrar. - 3. The applicant being dissatisfied with the said ruling filed this application to review and set aside the same and asked this Honourable Court to grant a temporary injunction on land comprised in Kyadondo Block 80 Plot 275 at Buwambo, Ssabawaali subcounty in Wakiso District.

# *Applicant's evidence;*

- 4. The application is supported by an affidavit in support deponed by Mr. **KAMOGA JOSHUA**, an Advocate and Counsel in conduct representing the Applicant which briefly states as follows; - i) That the Applicant filed MA No. 2211 of 2024 against the Respondent for a grant of a temporary injunction restraining the Respondent by himself and or his agents acting under him or with his authority from alienating, subdivision, selling, constructing on, disposing of, carrying out any activity or any development on the suit land and interfering with the Applicant's possession of his property measuring 1.02 acres comprised in Kyadondo Block 80 Plot 275 land at Buwambo, Ssabawaali subcounty- Wakiso District. - ii) That the matter was heard interparty and on the 8th day of November 2024, the application was dismissed on grounds that the Respondent demonstrated that he was in possession, occupation and utilization of the suit land carrying on developments, the reason for Court not granting the order. - iii)That the Applicant in his affidavit showed Court that apart from fencing, no further developments had been done on the disputed land and it is unnerving how the registrar concluded

on the developments referred to in the ruling without even carrying out a locus visit.

- iv) That this is an apparent error as to how the Learned Registrar reached that conclusion as all the annexures attached by the Applicant had no developments thereon and no evidence in the reply was given to the contrary. That the Applicant brought the application with the intention to protect the land in dispute pending the determination of the main suit which was not granted and it ideally puts the suit land at the risk of not only being disposed of but also destroyed which will render the main suit null defeating justice in the end. - v) That it is in the interest of justice that the ruling and dismissal of MA No. 2211 of 2024 be reviewed and set aside and a temporary injunction be granted so as not to render the Applicant's suit nugatory.

#### *Respondent's evidence;*

- 5. The application is responded to by an affidavit in reply deponed by Mr. **KAMOGA MUHAMAD,** the respondent which briefly states as follows; - i) That the Respondent shall raise a preliminary point of law that this application is frivolous and vexatious and lacks

merit as it does not present grounds for review, does not show an error apparent on the face of record but seek that this Court re-evaluates the evidence which is a matter for an appeal and not review.

- ii) That I bought the land from the Applicant and he confirmed the sale, we went on locus with his wife and Attorney and cannot claim an injunction against me after two years well knowing that I have sold most of the land to my clients. - iii)That the Applicant's affidavit in support already discloses that fencing has been done on the land which is development and therefore the Learned Registrar relied on the available evidence to reach the conclusion that the developments were made on the land. - iv) That I have been advised by my Lawyers which information I verily believe to be true that locus visits are not mandatory especially in applications for temporary injunctions and they are made at the discretion of Court where the Court finds it necessary to confirm testimonies of the parties. - v) That the Learned Registrar's role was to consider whether the Applicant had sufficient grounds for a temporary injunction in which this Court found that the status quo had already

been changed which defeats the purpose of a temporary injunction.

vi) That the application is incompetent, lacks merit and it's an abuse of court process thus should be dismissed.

## *Representation;*

6. The applicant was represented by M/S Kintu Nteza & Co. Advocates while the respondent was represented by M/S KOB Advocates and Solicitors. Both parties filed their affidavits and submissions which I have considered in the determination of this application.

#### *Issues for determination;*

*i) Whether the application raises just reasons to review or set aside the dismissal order in MA No. 2211 of 2024?*

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

7. Counsel for the Applicant in his submissions discussed the law on review and relied on the provisions of Section 82 of the Civil Procedure Act, Order 46 rule 1 of the Civil Procedure rules and the authority of **Edison Kanyabwera v Pastori Tumwebaze SCCA No. 6 of 2004.** That the Applicant informed Court that he was the registered proprietor of the suit land and that whereas he sold to the Respondent one (1) acre off the titled land, he proceeded to grade more than the land sold to him and put a fence thereon.

- 8. That the Applicant explained the status quo and attached pictures of the suit land at the time of filing, the Respondent claimed to be making developments but attached no evidence to defeat the Applicant's claim of the status of the land and without visiting the suit land, the Trial Registrar stated that the Respondent demonstrated that he was in possession and utilization of the land a conclusion which is neither reflected in the reply of the Respondent or any other pleadings whatsoever. - 9. That the Registrar reaching this conclusion without visiting the ground to confirm status quo in a contentious matter like that was an error apparent and an irregularity that puts the justice system to embarrassment. - 10. The Respondent in reply raised a preliminary point of law that the Applicant proceeded under a wrong procedure which is contrary to Order 50 rule 8 of the Civil Procedure Rules by not appealing as provided for, that the High Court's inherent powers cannot override express procedural law. Counsel relied on the

authority of **Khainza & 4 others v Mweru MA No. 437 of 2023** where the Learned Judge Hon. Mr. Farouq Lubega held that reviewing the Registrar's orders would be using the High Court's inherent powers to override the express procedural laws under Order 50 rule 8.

#### **Analysis by Court**

- 11. Before delving into the merits of the application, I shall first resolve the preliminary point of law as raised by the Respondent. - 12. That the Applicant proceeded under a wrong procedure which is contrary to Order 50 Rule 8 of the Civil Procedure Rules by not appealing as provided for instead of filing the instant application for review and setting aside the orders in MA No. 2211 of 2024. - 13. Counsel for the Applicant in response stated in his submissions in rejoinder that the word **"may"** in the wordings of the provisions of Order 50 rule 8 of the Civil Procedure Rules is not coached in mandatory terms that any grievance as a must shall be appealed. That it is merely suggesting that the aggrieved party may appeal to a High Court Judge. - 14. That the applicant was aware of the possibility of appeal but not preferring the same decided to apply for review as the

procedure is also available to an aggrieved party against an order that was passed dismissing this application for temporary injunction.

- 15. The ultimate issue is whether a judge of the High Court may review and set aside the decision or order of a Registrar. - 16. Order 50 rule 8 of the Civil Procedure Rules is explicit; "Any person aggrieved by any order of the registrar may appeal from the order to a judge of the High Court." - 17. This provision clearly outlines the statutory mechanism through which a person aggrieved by a Registrar's decision may seek redress which is by way of an appeal. The argument by Counsel for the Applicant that the word **"may"** in the wording of the provision is not coached in mandatory terms is misleading as the language is both mandatory and specific. - 18. I am fortified by the decision of my Learned Brother, Hon. Justice Farouq Lubega of **Khainza Milly & 4 others v Mweru Mike Henry HCMA No. 0437 of 2023** where he noted that Order 50 of the Civil Procedure Rules which provides for the powers of the registrar provides that the decision of the registrar can only be challenged by an appeal under rule 8 of the same order.

- 19. More pertinently, Counsel brought the application under the provisions of Section 82 and 98 of the Civil Procedure Act and other enabling laws. - 20. While it is acknowledged that Section 98 of the Civil Procedure Act preserves the inherent powers of Court to make such orders as may be necessary for the ends of justice or to prevent abuse of Court process, Courts have also repeatedly emphasized that these powers must not be invoked where a specific legal procedure exists. Where rules of procedure provide a clear path, it must be followed and respected unless exceptional circumstances exist. - 21. The Applicant dissatisfied with the orders of the Learned Registrar did not file an appeal as provided for under Order 50 Rule 8 but instead filed an application seeking for this Court to review and possibly set aside the order in the exercise of its general powers. - 22. Respectfully, such a course of action is procedurally flawed and to hold otherwise would encourage procedural indiscipline and forum shopping within the Court. - 23. In light of the foregoing, I find that the proper and lawful procedure for challenging a registrar's order is by way of appeal

to a Judge of the High Court in accordance with the provisions of Order 50 rule 8 of the Civil Procedure Rules.

24. Therefore, I find this application incompetent and the same is here by dismissed. Costs shall abide the outcome of the main cause.

#### **I SO ORDER.**

# **NALUZZE AISHA BATALA**

### **Ag. JUDGE.**

### **18/04/2025**

## *Delivered Electronically via ECCMIS on the 18th day of*

# *April 2025*