[2023] UGHCLD 205

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DTVTSTON)

# MISCELLANIOUS APPLICATION NO. 27I OF 2023

# (ARTSTNG OUT OF MISCELLANEOUS APPLICATION NO. 1232 oF 2O2O)

## (ARTSTNG OUT OF HCCS NO. 2139 OF 2016)

## DR. MUHAMMED BIIWULE KASASA = APPLICANT VERSUS

- 1. ADMINISTRATORS OF THE ESTATE OF SIR EDWARD MUTEESA II - 2. NALINNYA DOROTHY NASOLO - 3. NALINNYA SARAH KAGERE - 4. PRINCE DAVID WASAJJA - 5. UGANDA NATIONAL ROADS AUTHORITY - 6. ATTORNEY GENERAI, ==== === = === === === = RESPONDENTS

### BEFORE: HON. JUSTICE FLAVIA NASSUNA

#### RULING

# Introduction:

- 1. This application was brought under the provisions of S.98 of the Civil Procedure Act and O.52 rr 1&2 of the Civil Procedure Rules. It was seeking for orders that; - a) a consequential order doth issue directing the release of Ugx. 6,187,212,750 (Uganda Shillings Six Billion One Hundred Eighty Million Two Hundred Twelve Thousand Seven Hundred Fifty Only) to the applicant; - b) respondents be ordered to pay the costs of this application.

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- 2. It was brought by notice of motion which was supported by an a-ffidavit sworn by the applicant. Grounds of the application were laid in the notice of motion and affidavit in support. Briefly the grounds were that; - a) The applicant is the registered proprietor of land comprised in Kyadondo Block 237 Plots 178 and 388 land at Mutungo Luzira, herein referred to as the suit land, having acquired the same in 1978. - b) In 2003, the Administrator General who was administrator of the estate of late Kabaka Muteesal l, filed HCCS. 622 of 2OO3 against the applicant seeking recovery of the said land (suit land). - c) Later on, the Administrator General renounced the grant of letters of administration to the said estate and the )nd, Jtd and 4th respondents applied to be substituted, whereupon they were added as parties to the suit. - d) In 2005, the 2"d,3'd and 4th respondents together with others filed HCCS. NO. 227 of 2OO5 against the 6th Respondent (the Attorney General) seeking to recover damages for loss of the said land (suit land). - e) The two suits were consequently consolidated and given a new number HCCS. NO. 2139 of 2016. - f) After consolidation, HCCS. No.622 of 2OO3 to which applicant was a party was dismissed on a preliminary point of law, which left HCCS No. 227 of 2005 pending, but the applicant is not a party to this suit. - g) The order dismissing HCCS . NO. 622 of 2003 was upheld on appeal.

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- h) The 5th and 6th Respondent compulsorily acquired a right of way through the suit land but the 1st, 2nd, 3rd arrd 4th respondents laid a claim over the same land claiming that it forms part of their late father's estate. - i) While the dispute was still pending the Sth respondent filed an interpleader application seeking to deposit the compensation monies into court pending the determination of the rightful proprietor of the suit land. - j) The court heard the application and a-llowed the sth Respondent to deposit the compensation sums in court with orders that the said sums would be paid to the registered proprietor. - k) That since HCCS. No. 622 of 2003 was dismissed by court, the applicant is the registered proprietor of the suit land and the compensation sums should therefore be released to him' - 3. The 5th respondent did not file any affidavit in reply to this application. However, the 4th respondent filed an aflidavit in reply on his own behalf and on behalf of the lst, 2nd and 3'd respondents by which he called upon court to dismiss the application with costs. Briefly he stated that; - a) The application is incompetent, baseless and an abuse of court process. - b) That the money claimed by the applicant is not due and payable since the consolidated civil suit No. 2139 of 2016 (in which both Civil Suit No. 227 of 20O5 and Civil Suit No. 622 of 2OO3 were merged) is still pending hearing.

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- c) That the applicant deliberately failed to disclose the existence of the temporarSr injunction order granted vide Miscellaneous Application No. 1619 restraining any claim of the sums deposited pending determination of Civil Suit No. 2139 of 2016. - d) That despite the fact that this court had dismissed Civil Suit No. 622 of 2OO3, it still went and heard Miscellaneous Application No 1232 of 2O2O arising out of Civil Suit No. 2139 of 2O2O which mearrs that Civil Suit No. 2139 still exists. - e) That in allowing the application, court acknowledged that there was still an existing dispute between the 1st - 4th respondents and the 5th Respondent in respect of the land to be acquired by UNRA. - f) That the question of who is entitled to compensation as landlord of the suit land is yet to be determined. - g) That following the decision of the Court of Appeal in regard to Civil Suit No. 622 of 2OO3, the 1st -4th Respondents filed a Notice of appeal in the Supreme Court and wrote a letter requesting for the record of proceedings before the Court of Appeal. - h)That as a result, the money deposited by UNRA for compensation cannot be paid out until Civil Suit No. 2139 of 2016 is fully determined. - 4. The 6th respondent also filed an a-ffidavit in reply that was sworn by a one Wanyama Kodoli and also called upon court to dismiss the application with costs. Briefly he stated that;

$\hat{y} = \frac{z}{c}$ $\mathcal{A} = \mathcal{A} \times \mathcal{A} \times \mathcal{A}$ - a) That the application is incurably defective and should be dismissed with costs to the 6th respondent. - b) That no application has been filed in the Court of Appeal applying for the transfer of the decree arising from Civil Appeal No. 152 of 2O2O. - c) That the application offends the lis pendens rule because whereas the orders of Justice Keitirima dismissed C. S. No. 622 of 2O03 which was part of Civil Suit No. 2139, C. S. No.227 of 2005; is still pending hearing in the Land Division. - d) That a temporaqr injunction was issued arising from the consolidated HCCS No. 2139 of 2016, and that this order has never been vacated, varied or vitiated. - e) That the temporaqr injunction restrains the applicant, the 6th respondent, National Water and Sewerage Corporation, Standard Gauge Railway and any other Government Agency from paying any compensation or claim in regard to land or suit properties formerly comprised in MRV 962 Folio 19 now comprised in Kyadondo Block 237 Plots 29, 48, 56, 59, 67, 37, 39, 27, 69,70,81 , 82, 83, 88,92, 111, 114, 115, 142, 147, 148, 138, 103, 131, 150, 154, 155, 178, 179,335,388 and 41O at Mutungo L:uzira pending fina-l determination of the suit. - f) That if the satisfaction of the decree against the 6th respondent is ordered, it will lead to uncertainty as a

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plethora o;3ra parties who have since acquired interest in the disputed land may bring up claims against the 6th Respondent.

- g) That it is in the interests ofjustice that all pending suits be determined before compensation claims are paid out so that there can be a finality to litigation. - h) That the 6th respondent knows that the lis pendens rule forbids this court from entertaining a matter in which the same issues are already up for consideration in another matter pending before the same court which has concurrent jurisdiction. - i) That if this application is granted, an absurdity is bound to occur where different courts may arrive at conflicting judgments on the same matter. - j) That all questions arising between parties to a suit in which a decree has been passed, relating to execution are determined by the Court executing the decree and not a separate suit, or an application like the instant one. - k) That if this court were to entertain this application, it would have to first be after an application for transfer of a decree from the Court which issued the decree; that is the Court of Appeal, which procedure has not been followed by the applicant. - 5. The applicant filed an affidavit in rejoinder in which he stated that; - a) That the affidavit in reply sworn on behalf of the 1"t 4th respondents is full of deliberate material

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falsehoods which render the entire affidavit defective, and these are;

- b) That in paragraph 4(a) of their affidavit in reply, it is claimed that the Consolidated Civil Suit No. 2139 of 20 16 is still pending yet in paragraph 18 of the same affidavit, it is pleaded that Justice Keitirima dismissed Civil Suit No. 622 of 2OO3 (which partially comprised the consolidated suit) on a preliminaqr point of law. - c) That the respondents claim that the matter is still pending hearing yet they later concede that the appeal was dismissed in paragraph 23. - d) That the respondents claim that there is a subsisting temporary injunction restraining the claim of the sums until the hearing of the consolidated suit yet in paragraph 18 they admit that the main suit was dismissed. - e) That it is the understanding of the applicant that Civil Suit No. 2139 of 2O16 was unconsolidated when the High Court dismissed High Court Civil Suit No. 622 of 2003 which sought to recover the subject land thus there is no consolidated suit in existence anymore. - f) That the applicant being the decree holder in regard to Civil Suit No. 622 of 2003 is entitled to the compensation sums. - g) That the compensation was deposited with the High Court pending determination of the rightful owner of the suit land, and since the suit was dismissed by

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both this Court and the Court of Appeal, the applicant remains the registered proprietor. and is thus entitled to the compensation that was deposited in court.

- 7. Both parties frled written submissions which I have carefully studied and I need not reproduce them here. - 8. The issue to be decided by court is whether the sum of Ug. Shs. 6,187,212,75,01= (Six billion, one hundred and eighty seven million, two hundred and twelve thousand seven hundred and fifty) deposited in court in Misc. Application No.1232 of 2O2O should be released to the applicant.

After carefully studying the record of proceedings, a1l pleadings and submission of both parties in this matter, I noted as follows.

- a) this application seeks for consequential orders after HCCS. No. 622 of 2OO3 was dismissed by court and the order dismissing the same upheld by court of appeal. In the case of Pentecostal Assemblies of God Ltd v. Joel Mukalu & Anorl HCMA No. 29O of 2022, Justice Musa Sekkaana rightly defined a consequential order as '...an order following naturallg in tenns of consistencg and giuing effect to the main .judgment... making the pincipal order eJfectiue and effectual or tuhich necessarilg as being incidental to the pincipal order i.n. the matter.' - b) It is important to note that HCCS. NO. 622 of 20O3 was never determined on merits but was dismissed on a preliminar5r point of law. None the less, the case was premised on fraud

 as it had been alleged that the applicant had acquired the suit tand fraudulently. The court did not make any finding on this allegation. It would therefore be difficult for this court to assume that consequential orders would naturally follow from a matter that was not heard on merit.

- c) 2ndly, HCCS. No.622 of 2003 was consolidated with HCCS. No. 227 of 2005 into HCCS. NO. 2139 of 2016 because the subject matter in the two cases was the sarne. While it is true that HCCS. No. 622 of 2OO3 was dismissed on 20l3l2O2O, HCCS. No. 227 of 2005 is still pending. In this case it is still alleged that the applicant acquired the suit land fraudulently. Therefore, issue concerning fraudulent acquisition of this land by the applicant is yet to be determined and will definitely be considered in HCCS. No.227 of 2O05 which is still pending. - d) 3rd1y, after the dismissa-l of HCCS. 622 of 2003, the 5th respondent filed Misc. Application No. No.1232 of 2O2O by which it sought to deposit compensation monies for the suit land with court. This application was a-llowed and a decision was made on l2ll2l2O2O long after HCCS. No. 622 of 2O03 had been dismissed. - e) It is therefore clear that at the time the order depositing this money was made, HCCS. NO. 622 of 2003 was no longer in existence and the trial judge was alive to this fact. At Page 18 of the ruling, the trial judge noted

"it is euident that the respondents claim aduerselg to each other the suit lond and the compensation to be deiued there from as a result of the applicant's projectitundertakes to carry


out". The trial judge was therefore alive to the fact that one ol the suits had been dismissed but still ordered the money to be deposited pending the outcome of the matter that was still pending in court.

- f) Therefore, whereas it is true that the applicant is not party to HCCS. NO. 227 of 2005, the subject matter in the two cases is the sarne. In HCCS. NO. 227 of 2005 the plaintiff alleges that this land was fraudulently transferred into the names of the applicant. His name is indeed cited in the pleadings in HCCS. NO. 227 of 2005. As already stated above the court is yet to decide whether this allegation is true. - g) Furthermore, whereas it is true the applicant is the registered owner of the suit land, the manner in which he acquired the said land is still subject of contention in HCCS. No. 227 of 2005, because it is alleged therein that he acquired the same fraudulently. The court is yet to make a finding on this allegation. - h) Since in HCCS. NO. 227 of 2005, the 1"1, )nd, Jrd and 4th respondents are seeking for compensation for the suit land which they allegedly lost, and the applicant is also seeking for release of the compensation monies for the same land to him, the said monies cannot be released until the disposal of HCCS. NO. 227 of 20O5 which is still pending before the court.

In my view, it would be erroneous for court to order release of the compensation monies to a person who is alleged to have acquired registration fraudulently before exhausting the matter. Any release of the said monies at this stage would be

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rather premature. The said monies shall be released after the disposal of HCCS. NO. 227 of 2005.

This application therefore hereby fails and the same is accordingly hereby dismissed with costs to 1"t, 2nd, 3'd, 4th, and 6th respondents.

Dated at Kampala this day of 2023.

FLAVIA N UNA Judge.

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