Wabulo and Another v Kintu (Civil Appeal No. 27 of 2007) [2009] UGCA 63 (23 March 2009)

## THE REPUBLIG OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE A. E. MPAG!-BAHIGEINE, JAJ HON. JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE C. N. B. KITUMBA, JA.

# GML APPEAL No.27 OF 2OOT

| l0 | 1. | RICHARD WABULO | l | APPELLANTS | |----|--------|----------------|---|------------| | | 2. | SAMUEL KIVUMBI | I | | | t5 | VERSUS | | | | | | | DICK KINTU | | RESPONDENT | | | | | | |

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[Appeal from the ruting of the High Court (Opio Aweri, J) dated 14th December 2OO5 in Miscellaneous Application No.744 of 20041

### JUDGEMENT OF KITUMBA, JA.

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This is an appeal from the ruling of the High Court, (Apio Aweri, J), whereby he dismissed the appellants' application in objector proceedings.

I(l The followin'g is the background to the appeal.

Dick Kintu, hereinafter, referred to as the respondent filed H. C C. S No.548 of 1997 against one Benedicto Nsubuga, seeking, inter alia, the order evicting him from the suit premises. Benedicto Nsubuga filed a written statement of defence and a counterclaim that the respondent obtained the suit land fraudulently. That he was the lawful owner of the suit property. Judgement was entered in favour of the respondent and Benedicto Nsubuga's counterclaim was dismissed.

An attempt was made to execute the judgement and to put the respondent in possession by evicting Richard Wabulo and Samuel Kivumbi, the appellants in this appeal. 5

The two appellants resisted the eviction and filed objector proceedings by Notice of Motion under sections 34, 44, 64 and 98 of the Civil Procedure Act and Order 19 Rules 55 - 57 and Order 48 Rules 1 - <sup>3</sup> of the Civil Procedure Rules.

They sought the following orders from the High Court.

(a) The developments on Kyaddondo, Block 217, Plot 308 and

- 309, are not liable for attachment. - (b) The warrant of attachment of the applicants' property in execution of the decree be sef aside and the said property be released from attachment.

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### (c) The cosfs of fhr's application be provided for.

The grounds of applications were contained in the appellant's affidavits in support of the motion and the relevant ones for this appeal were as follows -

1. The developments on Kyaddondo Block 217, Plots 308 and 309 belong to the appellants and not to Benedicto Nsubuga.

- 2 That the appellants are bonafide occupants of Kyaddondo, Block 217, Plot 308 and 309 that were decreed to the respondent in HCCS No.548 of 1997 which suit was between the respondent and Benedicto Nsubuga. - That the appellants had security of occupancy over their respective holdings and the respondent bought the suit land subject to the appellant's interests. 3 - ln his affidavit, the respondent denied the appellants' claim of ownership. He deponed that all along the appellants were aware of the land dispute over the suit land between him and Benedicto Nsubuga. However, they continued to construct buildings, inspite of a court injunction and other warnings. 10

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The learned trial judge dismissed their application on the grounds that the respondent was the rightful owner of the suit property and as such was entitled to quiet enjoyment of the same. He could not declare that the appellants had interest in the property because there was not enough evidence to support their claim.

The appellants were dissatisfied with the ruling of the learned trial judge and hence this appeal on the following grounds.

The learned judge erred in law and fact in finding and holding that upon the respondent being adjudged the rightful owner of the suit land, the appellants bonafide occupants of the suit land, could not object to the attachment of the suit property in an objector application. t5 1

- 2. The learned judge erred in law and fact in finding that on the evidence available, the appellants had not proved that they had any interest or possessory interest in the attached properly. - The learned judge erred in law and fact in finding and holding that matters concerning real property can not be determined in an objector application but only in an ordinary regular suit. 3.

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Counsel for both parties agreed that the three grounds of appeal cover one issue and which is

"Whether the appellant's objector proceedings in Miscellaneous Application No.744/2004 arising out of HCCS 548/97 had merit or not."

ln this judgement, I will deal with that issue only

lVlr. Charles Mbogo for the appellants contented that the appellants were in possession of Plots 308 and 309 of land at Kiwatule and were, therefore, entitled to bring the application. He submitted that the learned trial judge was alive to the principles concerning what the court has to consider in objector applications. However, the trial judge erred in law and dismissed the application on the basis of legal title. ln support of his submissions, he relied on the following authorities. l{)

John Verjee and Another Vs Simon Kalenzi and Others- C. A. Civil Appeal No.71 of 2000.

Trans African Assurance Go. Vs National Social Security Fund. SC. CivilAppeal No.1 of 1999.

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Muwonge V Stephen Kyeyune S. C. Civil Appeal No.12 of 2007.

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[tlr. Musoke - Kibuuka for the respondent supported the judgement of the learned trial judge.

He submitted that the matter before the judge did not concern attachment of property. According to counsel, the issue was to put the respondent in possession. He had been declared by court as the rightful owner of the property. He argued that section 38 of the Civil Procedure Act provides six modes of executing a decree and one of

- them is delivery of any property specifically decreed. He submitted that in HCCS No.548 of '1997 the decree specified. l(l - (a) Eviction of one Benedicto Nsubuga from the suit property (i.e Kyaddondo Block 218, Plots 308 and 309 Kiwatule). - He submitted that the effect of the decree was to deliver physical possession of the suit propefty, which is governed by Order 19 r.32 and, 33 of he Civil Procedure Rules. l5

I have carefully perused the record of proceedings, the conferencing notes and listened to the oral submissions of both counsel.

ln High Court Civil Suit No.548 of 1997, the respondent was declared to be the lawful owner of the suit land. Benedicto Nsubuga, who was the defendant in that suit land, was claiming a customary interest in the same land. He had filed a counterclaim alleging that the respondent had fraudulently acquired title to the suit land. The

counterclaim was dismissed,

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The appellants claim to be bonafide occupants of the same land namely plots 308 and 309. This is contained in their affidavits in support of the motion. However, they do not indicate the dates when

began occupying the land. They do not show who was their predecessor in title. On the other hand, the respondent in para 5 of his affidavit in reply deponed that when he bought the land on 1"t September 1995 from Charles Mpanga, the plot was empty. The respondent also by his affidavit and other attachments thereto has adduced evidence to prove that Benedicto Nsubuga and his agents/appellants continued to construct buildings on the suit land, inspite of a court injunction and other warnings requesting them to stop.

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It is trite law that one who brings objector proceedings must be in possession. However, this must be lawful possession, The objector proceedings are not intended to protect trespassers.

The learned trial judge was alive to the principles that govern the oblector applications. He referred to Trans African Assurance Co. Vs National Social Security Fund, (SC) Civil Appeal No.1 of 1999 (unrepo(ed). ln that case, Wambuzi CJ, as he then was, quoted with approved the case of Harilal Co. vs Buganda lndustries Ltd [1 960] t5

"What has to be decided under 0.19, r. 55, which is the lndian 0.21, r. 58 is set out in CHITALEY AND RAO's coDE oF ctvtL PR)1EDURE (6th Edition)," P.1880:

"What is fo be investigated is indicated by the next three following rules, viz r.59, r.60 and r.61 . The question to be decided is, whether on the date of the attachment, the judgement-debtor or the objector was in possession, or whether the court is satisfied that the property was in possession of the objector, it must be

EA 318, wherein it was stated: l{) found whether he held it on his own account or in trust for the judgement-debtor. The sole question to be investigated is, thus, one of possession. Questions of legal right and title are not relevant, exce t in so far as the ma affect the decision as to whether the possession is on account of or in trust for the iudqement-debtor or some other person. To that extent the title ma be art of the in ui. . But ultimate guesfions of trust, or complicated questions like the benami nature of a transactions, are not within the scope of the inquiry and are not intended to be gone <sup>i</sup>nto."

(Underlining mine)

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- l5 From the facts of this appeal it is obvious that the appellants are claiming possession on account of Benedicto Nsubuga, who was claiming customary interest over the same land. His claim was rejected by the trial court. The judgement in that suit case namely: HCCS No.548 of 1999 is still valid and has not been overturned by any court of law. I agree with the learned trial judge that if the parties are claiming interest in the suit land, they should do so by filing an ordinary suit in which their claims would be determined but not in this objector application which is a summary application. l0 - I appreciate the argument by counsel for the respondent that the warrant that was rssued was not for attachment and sale of the property. lt was merely to put the respondent in possession. I am unable to fault the learned trial judge for his decision.

Before I take leave of this appeal, I would like to note that tttlr. Charles Mbogo of lVbogo and Company Advocates was counsel for Benedicto Nsubuga in HCCS No.548 of 1999, whereby he claimed a customary interest in the suit property. The same counsel was advocate for the appellants in the High Court in lVliscellaneous Application No.744 of 2004 when they filed the objector application. The genesis of the appellant's claim to the suit land is not very clear to me but it is apparent that it is from Benedicto Nsubuga. Counsel Mbogo handling HCCS. No. 548 of 1999 and prosecuting objector application, in lVliscellaneous Application No.744 is obviously an abuse of court process by an advocate l0

ln the result, I find that this appeal is devoid of merit. I would dismiss it with costs to the respondent in this Court and in the High Court

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Dated at Kampala, this .. -l L) day of lq-Crc,t- <sup>2009</sup>

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l5 C. N. B. Kitumba JUSTICE COURT OF APPEAL

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

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## **CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA** HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA

CIVIL APPEAL No. 27 OF 2007

#### **RICHARD WABULO** 1. $10$

$\mathsf{S}$

$2.$ SAMUEL KIVUMBI :::::::::::::::::::::::::::: APPELLANTS

## **VERSUS**

DICK KINTU :::::::::::::::::::::::::::::::::::: 15 (*Appeal from the ruling of the High Court (Opio Aweri, J) dated* 14<sup>th</sup> December 2005 in Miscellaneous Application No. 744 of $2004)$

#### **JUDGEMENT OF HON. A. E. N. MPAGI-BAHIGEINE, JA** 20

I agree with the judgement of my Lord C. N. B. Kitumba, JA.

Since my Lord Twinomujuni, JA is of the same opinion, the appeal stands dismissed with costs to the respondent here and below, as proposed by Kitumba, JA.

Dated at Kampala tt ir2.3.faay or 2009.

l0 HON. A. E AGI \_ BAHI E, JA JUSTICE OF APPEAL

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## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE. JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. N. B. KITUMBA, JA \,/

## CIVIL APPEAL NO.27 OF 2OO7

# I. RICHARD WABULO

2. SAMUEL KIVUMBI.... ........,APPELLANTS

## VERSUS

DICK KINTU RESPONDENT

### [Appeal from the ruling of the High Court (Opio Aweri, J) dated l4rh December 2005 in Mis appl. No.744 of 20041

## JUDGMENT OF TWINOMUJUNI JA

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I have had the benefit of reading the judgment, in draft, of her Lordship Hon. Justice C. N. B. Kitumba, JA. I concur and I have nothing useful to add.

. L\,J tqc- t-Dates at Kampala this .day of .........2009.

U J wlnomuJ unl Ho JU EOF n.l PEAL.