Tushabe v Musoke (Miscellaneous Application 2641 of 2024) [2025] UGHCLD 11 (13 January 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS APPLICATION NO.2641 OF 2024** *(Arising from Civil Suit No. 439 of 2015)* **TUSHABE RASHIDA BABIGUMIRA:::::::::::::: APPLICANT VERSUS**

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

**MUSOKE MOSES :::::::::::::::::::::::::::::::: RESPONDENT**

### *Introduction*

- 1. Tushabe Rashidah Babigumira hereinafter referred to as the applicant brought this application against Musoke Moses hereinafter referred to as the respondent for orders that; - i) The ex-parte judgment/decree in Civil Suit No. 499 of 2015 and all applications made thereunder be reviewed and set aside. - ii) Civil Suit No. 499 of 2015 be reinstated and heard on its merits. - iii) Costs of the application be provided for.

#### *The applicant's evidence;*

- 2. The application is supported by the affidavit deponed by the applicant which briefly states the grounds of the application as follows; - i) The applicant together with Babigumira Agaba jointly acquired land comprised in Bulemezi Block 56 Plot 244 situate at Janda approximately 1.885 hectares from Wasswa Abdullah in 2014. - ii) That the applicant and Babigumira Agaba got registered on the said land comprised in Bulemezi Block 56 Plot 244 situate at Janda as joint proprietors in 2014. - iii)The applicant on the 2nd day of September,2024 discovered that the property in which she is a joint proprietor has been the subject of litigation in Civil Suit No 439 of 2015 instituted by the respondent and that the respondent obtained an exparte judgment. - iv) That the respondent on the 18th day of April 2016 filed an Amended plaint in Civil Suit No 439 of 2015. - v) That there is no proof of service of the said amended plaint and service of summons on the parties.

- vi) That the applicant was not a party to Civil Suit No 439 of 2015. - vii) That the said exparte judgment affects the applicant's interest in the said property and leaves her at the risk of losing her property. - viii) That there exists sufficient reasons for granting of this application which will not prejudice the respondent.

### *The respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the respondent and briefly states as follows: - i) That the applicant purchased the Kibanja on the 31st day of July 1995 from its previous owner Yusuf Kaggwa and took possession. - ii) That in September 2014, the applicant's husband together with Wasswa Abdullah and Mperesa Godfrey descended on the applicant's plantations and destroyed his crops. - iii)That the applicant reported the case to the Luwero police station and were jointly charged with Criminal trespass and malicious damage to property at the Chief

Magistrates Court of Luwero.

- iv) That Civil Suit No.499 of 2015 against the defendants upon their trespass on the suit Kibanja and the findings of court are only in respect of the persons that trespassed on the Kibanja. - v) That the applicant is a stranger to the proceedings and cannot claim to be aggrieved. - vi) That the suit against the defendants is against the defendants for their trespass on the Kibanja but not to impeach the applicant's title.

#### *Representation;*

4. The applicant was represented by M/S Kiprotich Advocates whereas the respondent was represented by M/S MBS Advocates. Both parties filed written submissions which I have considered in the determination of this ruling.

## *Issues for determination;*

*Whether the applicant is aggrieved by the judgment in Civil Suit No. 439 of 2015?*

*Whether there are sufficient grounds to warrant review of the*

#### *exparte judgment in Civil Suit No 439 of 2015?*

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

# **Issue 1: Whether the applicant is aggrieved by the judgment in Civil Suit No. 439 of 2015?**

- 5. Section 82 of the Civil Procedure Act Cap. 71 provides that: Any person considering himself or herself aggrieved—(a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit. - 6. To have locus to bring such an application, court must determine if you are an aggrieved party in the consent judgement and the Application from which the consent judgement originated. - 7. Section 82 of the Civil Procedure Act limits the locus standi for purposes of review to a person aggrieved by a decision of court and this aggrieved person may include a third party who was not a party to the original proceedings.

- 8. In the instant case, the plaintiff's case in Civil Suit 439 of 2015 was based on a Kibanja measuring approximately 4 acres. The brief background of the suit is that the plaintiff (now respondent) in Civil Suit No. 439 of 2015 initially reported a case to the police in Luwero where Babigumira Agaba and others were charged and convicted for trespass however for a successful claim for compensation the respondent was advised to pursue the matter in Civil Courts. It is against that background that the suit was commenced in court and proceeded exparte. - 9. It is the applicant's case that she was never a party to the said proceedings and was not aware of the said proceedings until recently. She adds that the exparte judgment affects here interest in the said property and leaves her at the risk of losing her property. - 10. I have carefully perused the record, and it is clear to me that Civil Suit No. 439 of 2015 was commenced against Wasswa Abdullah, Babigumira Andrew and Babigumira Agaba. The suit was for among other orders a declaration that defendants trespassed on the suit "Kibanja" and a declaration of the plaintiff's interest in the suit Kibanja. - 6 11. The plaintiff sought for declarations that the

defendants (as he deemed fit) were trespassers on the Kibanja after the defendants were convicted in the Criminal Case. The proprietorship of the legal interest as brought out by the applicant was never an issue in the case.

- 12. However, be that as it may, the applicant is a joint registered proprietor with Babigumira Agaba to which land the respondent claimed a Kibanja. The Kibanja interest cannot entirely be detached from the legal interest as both parties can maintain actions in trespass. - 13. The Supreme Court in Mohammed Alibhai v W. E Bukenya Mukasa and Anor (Civil Appeal No.56 of 1996) stated that; "an aggrieved party within the meaning of section 83 of the CPA means a person who has suffered a legal grievance. "it further agreed with the holding in **Re Nakivubo Chemists (U) Ltd and In the matter of Companies Act (1979) HCB 12, where Yusuf Nokrah (1971) EA 104** was cited with approval that an aggrieved party includes any party who has been deprived of his property. - 14. I believe the applicant falls squarely within such definition and is thus an aggrieved party with locus to

bring this application.

## **Issue 2: Whether there are sufficient grounds to warrant review of of the exparte judgment in Civil Suit No 439 of 2015?**

- 15. Section 82(a) if the Civil Procedure Act provides that any person considering himself or herself aggrieved: a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit. - 16. Order 46(1) of the Civil Procedure Rules provide thereof that:-1. Any person considering himself or herself aggrieved-a) By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or b) By a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was

passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him or her, may apply for a review of judgment to the Court which passed the decree or made the order.

- 17. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party, except where the ground of the appeal is common to the applicant and the appellant, or when, being respondent, he or she can present to the appellate Court the case on which he or she applies for the review. - 18. The grounds for review were enunciated in the case of **FX Mubuuke v UEB HCMA No 98 of 2005**:-

i) That there is a mistake or manifest or error apparent on the face of the record.

ii) That there is discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced by him or her at the time when the decree was passed or the order made.

iii) That any other sufficient reason exists.

- 19. I have carefully read and considered the submissions of both counsel in respect of this issue and will proceed to determine the same in light of the respective submissions. - 20. However, I have noted that counsel for the applicant raises several issues regarding pleadings and non-service of summons in Civil Suit No. 439 of 2015 where she was not party. As errors apparent on the face of the record, the applicant raises the following; - i) Filing of documents without leave of court and nonservice. - ii) Filing of a reply to the written statement of defense and introducing a party not originally sued. - iii)Filing of an application for leave to amend and add a party. - iv) Failure to serve or non-service of the amended plaint. - 21. I need to emphasize that the applicant in this case was never party to Civil Suit No.439 of 2015 and in the same spirit, none of the defendants in Civil Suit No. 439 of 2015 are applicants in the instant application.

- 22. In my considered view, it would not be judicious to permit an individual who was never a party to the main suit to diminish or offer commentary on the nature of the pleadings, nor to raise concerns regarding the alleged nonservice of summons, particularly where the parties to whom such service was ostensibly due have themselves raised no objection. - 23. The applicant further ventures to question the propriety of Miscellaneous Application No. 327 of 2016, despite not being a party thereto. In the circumstances, I am of the firm belief that it is not her place to make such a case. - *24. Sufficient cause;* It is not in dispute that the applicant was not party to Civil Suit No 439 of 2015. It is also not in dispute that the applicant is a joint proprietor of Land comprised in Bulemezi Block 56, Plot 244 land at Janda. - *25.* The said Kibanja interest which the respondent sought this honorable court to declare his interest sits on the same piece of land to which the applicant is a registered proprietor. Although the Kibanja is distinct from the legal interest of the land, it cannot be ruled out that the existence of the Kibanja directly goes to the root of the

rights and proprietorship of the land comprised in Bulemezi Block 56, Plot 244 land at Janda.

- *26.* It is therefore equally important that the determination of any interests on land comprised in Bulemezi Block 56 Plot 244 land at Janda cannot be dealt with without according the right to be heard to those that are supposed to be heard in determination of such rights. The applicant clearly has a proprietary interest in the land in question as such the Kibanja interest cannot be detached from her legal interest given the current legal regime governing tenants by occupancy. - *27.* I am persuaded by the decision of my learned brother Justice Taddeo Asimwe in **Nakakande Margret and Anor v Solome Mayanja and 3 Ors High Court Miscellaneous Application No 1488 of 2024.** The declaration that the respondent has a Kibanja on the suit land directly affects the applicant's interest in the suit land. - *28.* Article 28 of the 1995 Constitution of Uganda guarantees the right to a fair hearing in both Civil and Criminal matters. - *29.* I therefore find that there is sufficient reason to set aside the exparte judgment and orders in Civil Suit No 439

of 2015.

- *30.* The application therefore succeeds with the following orders; - *31.* The ex-parte judgment/decree in Civil Suit No. 499 of 2015 is hereby reviewed and set aside. - i) Civil Suit No. 499 of 2015 should proceed and be heard on its merits. - ii) The applicant is hereby added as a defendant to Civil Suit No. 499 of 2015. - iii)No orders as to costs.

## **I SO ORDER.**

## **NALUZZE AISHA BATALA**

**Ag. JUDGE.**

**13th – 01- 2025**

*Delivered electronically via ECCMIS on the 13th day of*

*January 2025.*