[2025] UGHCLD 74

# **THE REPUBLIC OF UGANDA**

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

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

**MISCELLANEOUS APPLICATION NO. 2643 OF 2024**

**(ARISING FROM CIVIL SUIT NO. 128 OF 2021)**

#### **AND**

**(ARISING FROM CIVIL SUIT NO. 40 OF 2022)**

#### **COMMISSIONER LAND REGISTRATION ::::::: APPLICANT**

#### **VERSUS**

- **1. J. K OPERATORS LIMITED** - **2. WAVAMUNO ELIZABETH MUBIRU** - **3. UGANDA INTERCITY FOOTBALL AND ATHLETICS** - **4. BUSABALA UNITED FOOTBALL CLUB**

**5. ATTORNEY GENERAL ::::::::::::::::::::: RESPONDENTS**

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

#### *Introduction;*

1. This Application is by Chamber Summons under Order 11 rule 1 and 2 of the CPR, Section 6 and 98 of the Civil

Procedure Rules and Section 37 of the Judicature Act for orders that;

- i) High Court Civil Suit No. 128 of 2021 and High Court Civil Suit No. 40 of 2022 be consolidated. - ii) Costs be provided for.

# *Applicant's Evidence;*

- 2. The Application is supported by Affidavit in Support sworn by Golooba Haruna, the Applicant's Senior Registrar of Titles in which he states; - i) That the 1st Respondent filed Civil Suit No. 128 of 2021 against the Applicant and 5th Respondent seeking inter aila; for the compensation of Ugshs 22,115,702,143/= arising from the fraudulent creation of titles on land comprised in Plot 629 Block 273 Busabala Wakiso (hereinafter referred to as the suit land) which certificates were issued into the Plaintiff lost land measuring 53.44 acres out of its certificate of title and a declaration that the Plaintiff was at law the exclusive owner of the suit land, general damages and costs of the suit.

- ii) That the 1st Respondent filed Civil Suit No. 40 of 2022 against the 3rd and 4th Respondents seeking inter alia: for a declaration that the Plaintiff is the lawful owner of the suit land measuring approximately 2 acres out of land comprised in Kyadondo Block 273, Plot 629 LRV1151 Folio 1 situate at Busabala Wakiso District, declarations that the Defendants are trespassers on the suit land, an order for vacant possession and Quite possession among others as per prayers in the Plaint. - iii)That in the said Plaint the 2nd Respondent states that it is the lawful and bonafide owner of land measuring approximately 2 acres out of land comprised in Kyadondo Block 273 Plot 629 Leasehold Register Volume 1151 Folio 1 Land situate at Busabala Wakiso District which she acquired from the registered proprietor a one J. K Operators Ltd. - iv) That in regard to Civil Suit No.40 of 2022, the 3rd and 4th Respondents filed a Counter claim against the Applicant, the 1st and 2nd Respondents seeking for Orders inter alia: that certificate of title for land comprised in Kyadondo Block 273, Plot 629 purported

lawful and bonafide interest is illegal and ought to be canceled, a permanent injunction restraining the counter Defendant, her servants and or agents from claiming and trespassing upon the counter claimant's land, general damages in trespass, costs of the counter claim, interest, cancellation of certificate of title of land comprised in Kyadondo Block 273, Plot 629 LRV 1151 Folio 1 and any other Order that this court may deem fit to grant.

- v) That the said High Court Civil Suits involve the same and/or similar questions of law and facts. - vi) That the decision in one Civil Suit No.128 of 2021 will automatically affect the decision in the other Civil Suit No.40 of 2022, a fact that might lead to a miscarriage of justice in this regard. - vii) That the claims for relief sought in both suits stem from the same transactions or series of transactions and the same parcel of land.

# *1st Respondent's Affidavit in Reply;*

3. Mrs Petua Kateeba on behalf of the 1st Respondent briefly stated that;

- i) That the Affidavit of Golooba Haruna, Senior Registrar of Titles is not conversant at all with the matters in respect of the suit and matters pertaining to the Application. - ii) That the said deponent alludes to Civil Suit No. 40 of 2022 involving one Wavamunno Elizabeth versus Uganda Intercity Football & Athletics and Busabala United Football Club and that the 1st Respondent is not party to the suit and has not lodged a Written Statement of Defence of the same. - iii)That the cause of action in that Civil Suit is unrelated to that of 128 of 2021. Civil Suit No.40 of 2022 relates to trespass and High Court Civil Suit No.128 of 2012 relates to constitutional rights to property and the enforcement of such rights and by way of compensation. iv) That the said deponent relies on a counter claim lodged in Court by the 1st and the 2nd Defendant and the Counter Claimants who are Respondents in the said Application and insist that the matters should be consolidated as they arise from the same or series of

transactions which is totally false.

- v) That the Applicant cannot purport to consolidate High Court Civil Suit No.128 and High Court Civil Suit No.40 of 2022 as they are merely defendants and the cause of actions are unrelated and distinctive in both civil suits, the reliefs sought do not relate to the same transactions or series of transactions. - vi) That further, the 1st Respondent i.e J. K Operator Limited has not been served with any Court process in this main suit and its counter claim and the 1st Respondent's lawyers have advised that the counter claim having not been served, it has abated and stands dismissed without notice by the Court and therefore the 1st Respondent cannot be added as a party to a suit to which they have not lodged a defence. - vii) That the Applicant seems to be totally unaware that on the 29th day of November 2022, a joint survey report was eventually submitted to this Honorable Court by the Permanent Secretary Dorcas Okallany by way of letter dated 21.11.22 in High Civil Suit No. 128 of 2022 and a judgement on admission was entered in that Civil Suit.

- viii) That the judgement on admission and the joint survey report does not list the 2,3,4 respondents as beneficiaries of the overlapping titles created over 54 acres, the Applicant as such cannot claim any interest in such land. - ix)That the land that was subject to investigation in Civil Suit No. 128 of 2021 relates to 54 acres scooped out of the 1st Respondent's title and placed in another Block 259 and which land is not the subject of Civil Suit No.40 of 2022. - x) That the land under litigation in High Court Civil Suit No.40 of 2022 is the residue of which the Plaintiff is claiming trespass by the other Respondent on those 26 acres.

## *2nd Respondent's Affidavit in Reply;*

- 4. Wavawuno Elizabeth, the 2nd Respondent, gave Evidence through an Affidavit in Reply and stated as follows; - i) That the 2nd Respondent is the Plaintiff in Civil Suit No. 40 of 2022 vide Wavamuno Elizabeth Mubiru Vs Uganda Intercity Football and Athletics and Busabala United Football club.

- ii) That the 2nd Respondent is also the Counter Defendant in Civil Suit No.40 of 2022 vide Uganda Intercity Football and Athletics and Busabala United Football Club Vs Wavamuno Elizabeth, J. K Operators Ltd and the Commissioner Land Registration. - iii)That the Respondent admits to the contents of paragraph 1 of the Affidavit in support of the Notice of Motion of the Application. - iv) That the contents of paragraph 2 of the Affidavit in support of the Application are denied in toto and deponent shall be put to strict proof thereof. - v) That in specific reply thereto, the 1st Respondent J. K Operators Limited is not the Plaintiff in Civil Suit No. 128 of 2021 as the Plaintiff is J. K Operators Limited which is distinct entity from the 1st Respondent hence the Application be dismissed with costs. - vi) That in further reply to the contents of Paragraph 2 of the support of the Application, land comprised on Block 273 Plot 629 land at Busabala is approximately 80 acres of which the Plaintiff in Civil Suit No.128 of 2021 is seeking compensation of land approximately 53.44

acres out of 80 acres hence there is remaining 26 acres of land.

- vii) That Civil suit No.128 of 2021 is a claim of compensation against the Defendants thereunder having erroneously issued out overlapping titles measuring approximately 53.44 acres whereas Civil Suit No.40 of 2022 is an action of Trespass by the owner of the two acres comprised in Kyadondo Block 273 Plot 629 LRV 1151 Folio 1 land at Busabala Wakiso District therefore the suits do not in any way involve similar causes of action nor similar questions of law or fact. - viii) That the allegations of the Deponent are not factual as there is no way the decision that might arise in one of the suits will prejudice the outcome of the other suit since both suits have different causes of action and therefore cannot occasion any miscarriage of justice in the circumstances. - **ix)**That the 2nd Respondent's claim arises from a sub-lease Agreement that was executed between her and J. K Operators Limited on the 10th day of April 2019 whereas the claim in Civil Suit No. 128 of 2021 is as a result of

the 2nd Defendant thereunder creating over lapping titles on the Plaintiffs 53.44 Acres out of the total 80 acres of the Plaintiff and as such the Deponent cannot purport to claim that the two transactions are similar or accrue from the same transaction.

#### *Representation;*

- **5.** The applicant was represented by Counsel Sekabira Moses, Counsel Tusasire Godwin and Counsel Arinaitwe Sharon whereas the 1st respondent was represented Counsel Yese Mugenyi of by M/S Mugenyi & Co Advocates, 2nd respondent was represented by Counsel Isabirye Derick M/S Deric Advocates and Solicitors, 3rd and 4th respondents were represented by Counsel Katongole Arthur of M/S Katongole and Co. Advocates and the 5th respondent was represented by Counsel Mugisha Moses. - **6.** Counsel for the Applicant filed written submissions which have been relied on in this Application.

## *Issues for determination;*

**i) Whether Civil Suit No.128 of 2021 and Civil Suit No. 40 of 2022 can be consolidated?**

#### *Resolution and determination of the issue;* - 7. Counsel submitted and cited the law under Order 11 rule 1 of the Civil Procedure Rules which states that where two or more suits are pending in the same court, based on the same facts, founded on more or less similar grounds and seeking similar relief from the court, although filed separately in which the same or similar questions of law or fact are involved or common to all may arise, such suits may be consolidated, either upon the Application of one of the parties or at the court's own motion and its discretion. - 8. The court must interpret and apply the Rules so as to secure the just, most expeditious and least expensive determination of every civil proceeding on its merit. - **9.** Counsel submitted that the rationale for consolidation of actions is to avoid a multiplicity of proceedings, to promote the most expeditious and least expensive resolution of disputes, and to avoid inconsistent judicial findings and further the case of **UME v Ifediorah (2001)8 NWLR (Pt 714)** 35 at page 38 as follows; **"The rationale for consolidation of actions is to save time and resources which would otherwise be expended in multiple trials**

# **in respect of the same issues of fact and law arising in two or more suits."**

- **10.** Counsel further submitted that according to the cases of Prince Balera & 7 Others v Attorney General & Anor HCMA 176/2017 and Kilembe Mines v Jinja District Land Board & Ors HCMA No.139 of 2020, it was held that for consolidation of suits to occur; - i) There must exist two suits pending before the same court. - ii) There must be similar questions of law or fact in issue in both suits.

#### Existence of two suits pending before the same court;

- 11. Counsel submitted that in the instant case, there are two civil suits pending before this Honorable Court in respect to the same contested property. - 12. There is Civil Suit No. 40 of 2022 filed by Wavammuno Elizabeth Musoke against Uganda Inter- City Football & Athletics and Busabala United Football Club. In the same vein, the second suit is Civil Suit No.128 of 2021 filed by J. K Operators Ltd against the Attorney General and the

Commissioner Land Registration. Moreover, in both suits, the Plaintiffs claim to be rightful owners of this impugned land.

13. That it is only proper that these suits are consolidated to enable court to pronounce itself and determine who is the rightful owner of this property and give the remedies it deems fit to all the parties that would be affected by the decision.

# There are similar questions of law or fact in issue in both suits;

- 14. Counsel for the Applicant submitted that in both suits, the dispute is over land comprised in Kyadondo Block 273 Plot 629 LRV 1151 Folio 1 land at Busabala Wakiso District registered in the name of the 1st Respondent as the Proprietor on the 8th day of January 2022 they seek orders for compensation and a declaration of the Defendants as trespassers. - 15. They claim compensation on the basis that the Defendants have been using the land without the consent of either of the Plaintiffs.

- 16. That the 1st Respondent obtained a lease from the Uganda Land Commission and also subleased part of this land to the 2nd Respondent. - 17. However, it has to be prudently noted that this entire land initially belonged to the King of Buganda pursuant to the Restitution of the Traditional Rulers Act Cap 1993 as FC 18143 Kyadondo Block 273 Plot 5 as of the 8th day of October 1993. - 18. Counsel also submitted that in the instant case, the claims for relief sought in both suits stem from the same transaction or series of transactions and the same parcel of land. All the claims arise from Kyadondo Block 273 Plot 629 LRV 1151 Folio 1 land at Busabala Wakiso District. - 19. Therefore, in order for this Honorable Court to properly determine both suits without causing absurdity, it is prudent to have both Civil Suits consolidated.

#### *Analysis of Issues;*

19. The law relating to consolidation of Suits is provided for under the **Order 11 of the Civil Procedure Rules** which states that: -"Where two or more suits are pending in the same court in which the same or similar questions of law or

fact are involved, the court may, either upon the application of one of the parties or of its own motion, at its discretion, and upon such terms as it may deem fit:-

- i) order a consolidation of those suits and - ii) that further proceedings in any suit be stayed until further order" - 20. **The Black's law Dictionary 9th Edition at Page 351** defines consolidation to mean the court ordered unification of two or more actions, involving the same parties and issues into a single action resulting in a single judgment or sometimes, in separate judgments. - 21. In the case of **Visare Uganda Limited vs Muwema and Co Advocates and Solicitors Misc. Application No. 0826 and 0827 (Consolidated)** court observed that in matters of consolidation of suits, a court must balance interests of expediency and convenience with possible prejudice to the parties. in weighing efficiencies and fairness of the order, court has to consider a variety of facts including: -

- i) the extent of the difference or commonality of the facts or issues in the proceedings. - ii) The status of the progress of the several proceedings and - iii)The convenience and inconvenience, in terms of money, due process and administration, of bringing and proceeding together. - 22. I have noted that Civil Suit N0. 128 of 2021 was brought by the 1st respondent against the applicant and the 5th respondent seeking among others a declaratory order that she is the lawful owner of land comprised in Kyadondo Block 273 Plot 269 Busabala. - 23. I have also noted that the 2nd respondent brought Civil Suit N0. 40 of 22 against the 3rd and 4th respondents seeking among others and order that she is the lawful owner of land Comprised in Block 273 Plot 629 LRV 1151 Folio 1. - 24. However, in the same suit the 3rd and 4th respondents brought a counter-claim against the applicant, 1st and 2nd respondents seeking among others for an order that the title for Block 273 Plot 269 LRV 1151 Folio 1 is null

and void and that the 1st respondent was fraudulently registered on the title of land Comprised in Kyadondo Block 273 Plot 629.

- 25. In Civil Suit 128 of 2021, Hon Justice Wasswa Basaza in a ruling dated 30th November,2023 entered a judgment on admission for the plaintiff (the 1st respondent) pursuant to a joint survey report in the following terms; - i) A declaration is hereby made that the applicant is the registered proprietor of the suit land comprised in Kyadondo Block 273 Plot 629 at Busabala comprising 32.333 hectares. - ii) A further declaration is also made that the Commissioner Land Registration created an Overlap of the suit land. - iii)A further declaration that Plot 629 does not fully exist on ground because Block 259 constituting Plots 2,4,6,7,8,9,10,11,12,13,14 and 111 occupies part of it as shown in annex B of the Joint Survey Boundary Opening Report.

- 26. The learned Judge is her ruling stated that the only questions that remained to be determined were: - i) Whether the Actions of the Commissioner Land Registration in creating the said overlapping titles and Block were illegal and or fraudulent as claimed by the plaintiff? - ii) Whether the plaintiff was entitled to compensation for the said overlapping titles? - iii)Whether there is any nexus between the head suit and Civil Suit Number 40 of 2021 or any other suit as claimed by the Commissioner Land Registration? - 27. From the aforementioned, it quite clear that the subject of litigation that is common to all cases is Block 273 Plot 269. - 28. The proprietorship of the 1st respondent although settled in Civil Suit No 128 of 2021 by a judgment on admission is still in contention in Civil Suit Number 40 of 2022 where in the counter-claimant seek for a declaration that the 1st respondent was registered fraudulently on the Certificate of title of land comprised in Block 273 Plot 269.

- 29. The declaration made by way of judgment on admission in Civil Suit No. 128 of 2021, affirming the 1st Respondent as the registered proprietor of the suit land, does not bind the parties in Civil Suit No. 40 of 2022 namely Uganda Inter-City Football & Athletics, Busabala United Football Club, and Wavumuno Elizabeth Mubiru whether by operation of the doctrine of res judicata or the maxim ut lite pendente nihil innovetur (nothing new should be introduced during the pendency of the suit). - 30. It is also clear that the plaintiff in Civil Suit No 40 of 2022 claims to have acquired her interest from JK Operators Limited the 1st respondent whose interest is challenged by the Counter Claimants in the same suit. It thus follows that there is a nexus between the two suits whose proprietary questions once determined can settle both suits finally. - 31. I agree with the applicant that it is good and proper for the two matters to be consolidated to avoid a multiplicity of suits. Even where either suit is settled, it is quite clear that relitigating proprietary questions earlier on settled will seem inevitable.

- 32. Accordingly, the application is hereby granted with the following orders; - i) Civil Suit No.128 of 2021 and Civil Suit No 40 of 2020 are hereby consolidated. - ii) No orders as to costs.

## **I SO ORDER.**

### **NALUZZE AISHA BATALA**

## **Ag. JUDGE.**

#### **26 th /05/2025**

#### **Delivered Electronically via ECCMIS on the 26 th day of**

### **May 2025.**