Salongo Lukwago and 2 Others v Ssentongo and Another (Miscellaneous Appeal 482 of 2024) [2024] UGHCLD 146 (24 May 2024)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVTSION

# MISCELLANEOUS APPEAL NO. 482 OF 2024

ARISING FROM MISCELLANEOUS APPLICATION NO.366O OF. 2023

ARISING FROM CIVIL SUIT NO. 1385 OF 2023

#### 1. SSALONGO MICHEAL LUKWAGO

#### 2. B1IIIRE GIBSON

3. LULE DAVID APPLICANTS

#### VERSUS

# 1. GEOFREY SSENTONGO

2. ABDUL SEBBI RESPONDENTS

# BEFORE HON. LADY JUSTICE FLAVIA NASSUNA MATOVU

#### RULING

1. This was an appeal against the decision of the Deputy Registrar in Miscellaneous Application No. 3660 of 2023. The appellants sought for orders that the injunctive order that was issued by the deputy registrar restraining them from continuing in occupation of the suit land and in effect evicting thern be set aside and replaced with an order maintaining the status quo until the determination of the main suit.

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- 2. Tt:e application was brought by notice of motion which was supported by urr affidavit sworn by the 2"d appellant. The grounds of the application were laid in the notice of motion and affidavit in support. They are on court record and I need not reproduce them here. - 3. The respondents filed an a-ffidavit in reply which was sworn by the l"t respondent by which they called upon court to dismiss this application with costs. - 4. Both parties filed written submissions which I carefully studied together with the entire record of proceedings. After carefully studying the same I noted as follows: - 5. The respondents filed Miscellaneous Application No. 3660 ol 2023 by which they sought for a temporar5r injunction restraining the appellants, their agents, servants or workmen or any person deriving interest from them from occupying, selling, transferring, developing or in any way dealing with the suit property until the disposal of the main suit.

The appellants were duly served with the said application but did not file any affidavit in reply to the sarne. The matter was fixed for hearing before the deputy registrar onl3 ll2/2O23 on which date they were granted an opportunity to file a reply by 20lL2 12023 and a-lso lile written submissions. This they did not do and by the time the ruling was delivered they had not filed any document on the court record.

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It is thus clear that the appellants opted to exclude them selves from participation in the proceedings before the deputy registrar. In the case of Kaahwa Francis Vs Commissioner Land Registration HCMA No. 2 of 2OL2 it was established that failure to file an affidavit in reply by the respondent implies that the respondent does not oppose the application. Therefore fact that the appellants in the instant application did not make any response to the application before the registrar implies that they were in agreement with all that was stated in the said application and also implied that they had no objection to the orders that were being sought in the said application. In the case of William Akankwasa V Registrar of Titles; HCMA No. 33 of 2OO8, it was further stated that facts adduced by affidavit evidence that are neither denied nor rebutted are presumed to be admitted.

Suffice to note that the orders that were issued by the registrar were drafted in the exact terms as were sought by the respondents which the appellant did not oppose.

The appeliant having opted not to oppose the application before the registrar cannot seek to set aside the orders that were granted. They are indeed bound by the sarne.

In addition I note that the orders appealed against were issued by the deputy registrar on 14 l2l2O24 artd the appellants filed the instant application on ll3l2O24. S.79 (b) of the Civil Procedure Act provides that every appeal against the order of a registrar shall be filed with in seven days from the date of the order of the registrar. In the case of Murangwa Bruno & Anor Vs. Luyimbazi James, Misc. Appeal No. OO16 of 2OL9, the Hon. Justice

Kawesa observed thus: "Under Section 79(1)(b) oJ the Ciuil Procedure Rutes appeals against the decision of the Deputy Registrar are within 7 (seaen) dags from tle date oJ tlrc decision.

The instant appeal was filed 15 days after the decision of the registrar and without leave of court to file out of time.

The same is accordingly improper before court and cannot be entertained.

For the reasons advanced above, this application hereby fails and is accordingly dismissed with costs to the respondents.

DATED at Kampala tt ir ..\*.fiS or 2024.

DGE AG.