[2024] UGHC 959

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# MISC. APPLICATION NO.406 OF 2023

# (ARISING FROM CIVIL APPEAL NO.169 OF 2021)

(ARISING FROM MISC. APPLICATION NO.11 OF 2014)

#### (ARISING FROM CIVIL APPEAL NO.055 OF 2010)

(ARISING FROM CIVIL SUIT NO.49 OF 2003)

**.....................................** MUDANGHA POLCYCAP :::::::::::::::

#### **VERSUS**

**<u>....................................**</u> **DAUYA TALIBA :::::::::::::::::::::** $\cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots$

#### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

# 1. Introduction

- 2. This application was brought by way of chamber summons under section 98 of the Civil Procedure Act Cap 285, and Order 22 rules 26 & 89 (1) of the Civil Procedure Rules SI 71-1 for orders that; stay of execution in Misc. Application No. 11 of 2014 be granted and costs. - 3. This application was supported by the affidavit of the Applicant which has been relied upon the determination of this application and briefly states that - a. He was the unsuccessful party in Misc. Application No. 11 of 2014; - b. He is currently in ownership and use of the suit land pending the hearing and determination of this application and was in occupation of the same even during proceedings of the lower courts; - c. Owing to the judgment and orders of the lower court and the appellant court, the Respondent is now threatening to evict him and demolish structures on the same, and as a result, he shall suffer substantial loss;

$\mathbf{1}$

- d. He was dissatisfied with the ruling/orders in Misc. Application No.11 of 2014 and lodged Civil Appeal No.169 of 2021 in the Court of Appeal of Uganda at Kampala; - e. Civil Appeal No.169 of 2021 is pending hearing in the Court of Appeal of Uganda at Kampala; - f. The orders of Civil Appeal No.169 of 2021 will be rendered nugatory if this application is not granted since the Respondent intends to execute the orders of Misc. Application No.11 of 2014; - g. This application has been brought without unreasonable delay. - 4. This application was opposed by the affidavit of the Respondent which has been relied upon the determination of this application and briefly states that - a. she will at the hearing, raise a preliminary objection that the application is incompetent and untenable in law; - b. when she bought the suit land on 20^th March 2003 from Watibika Stephen, the Applicant was not in occupation of the suit land; - c. Having purchased the suit land which at the time had squatters, she duly compensated all the squatters who themselves voluntarily demolished their houses and handed over possession to her; - d. Shortly the seller, Watiba Stephen turned around and wanted to retake the land that she had purchased which resulted into a criminal matter that led to the prosecution and conviction of Watiba Stephen; - e. After release from prison, Watibika Stephen filed a case against her in the land tribunal which case was later transferred to the Chief Magistrates of Mbale and registered as Civil Suit No.49 of 2003; which was in respect of the disputed piece of land comprised in Plot 18 Nile Drive in Mbale district; - f. On the 4^th May 2010, the trial Magistrate delivered judgment in respect of Civil Suit No.49 of 2003, declaring part of the suit land to Watibika Stephen; - g. She was dissatisfied with the decision of the trial Magistrate upon which she lodged Civil Appeal No.55 of 2010 in this court;

- h. Upon hearing of the appeal, judgment was entered in her favour setting aside the decision of the lower court and it was decreed that Plot 18 Nile Drive belongs to her; - i. In 2014, the Applicant filed Miscellaneous Application No.11 of 2014, Mudangha Polycap Vs Dauya Taliba and Watibika Stephen wherein he sought for review of the judgment in Civil Appeal No.55 of 2010; - j. Upon hearing the application interparty; the same was dismissed with costs on the $27$ ^th September 2019; - k. The Respondent having forcefully entered the land in course of the court hearing, is to date occupying the suit land which was decreed to her by this court and there is no pending appeal to change the decision in Civil Appeal No.55 of 2010; - l. Since the land had been decreed to her on appeal, she filed Miscellaneous Application No.052 of 2023, Dauya Taliba Vs Watibika Stephen and Mudangha Polcycap in which a consequential order was issued.

### 5. Legal Representation

6. Counsel Were Safiyu appeared for the Applicant while Counsel Mooli Allan appeared for the Respondent.

#### 7. Submissions

8. At the hearing of this application, both counsel were given schedules to file their respective submissions and they both complied. This court has considered them in the determination of this court.

### 9. Analysis of court

- Since there so many Applications in this court which arise from Civil Suit 10. $N_0$ . 49 of 2003, I have again found it necessary to reecho the background of this Application like I did in Miscellaneous Application No. 404 of 2023. - The background of this matter is that a one Watibika Stephen instituted $11.$ Civil Suit No.49 of 2003 against Dauya Taliba for vacant possession of the unsold portion of Plot No.18 Nile Drive, Mbale Municipality among other orders wherein the trial magistrate found that the plaintiff only sold part of his land to Dauya Taliba but not the whole of it and, the defendant being

dissatisfied with the above judgment and orders appealed to this court under Civil Appeal No.055 of 2010 wherein justice Stephen Musota (as he then was) determined the appeal in favour of Dauya Taliba/Respondent herein.

The Applicant herein, filed Miscellaneous Application No. 11 of 2014 against 12. Dauya Taliba and Watibika Stephen seeking to review and set aside Civil Appeal No.55 of 2010 and that he be added as a party to both Civil Suit No.49 of 2003 and Civil Appeal No.55 of 2010, so that he can be heard. Justice Susan Okalanyi dismissed that application on the ground that Mudangha Polucap could not be joined as party to Civil Appeal No.55 of 2010 since he is a total stranger to the trial in the lower court. My learned sister in her words stated-

> "It goes without saying that the basis of an appellate court's decision are the proceedings and judgment of the lower court. The grounds of appeal are framed from the said proceedings and judgment. With due respect to Mr. Mutembule

> , it is legally impractical for Mr. Mudangha to be added as a party to the said appeal at this point, having not been a party to Civil Suit No.49 of 2003 in the lower court."

- Following the decision in Miscellaneous Application No.11 of 2014, Dauya 13. Taliba/Respondent herein, filed Miscellaneous Application No.052 of 2023 seeking for consequential orders, eviction orders and demolition of the structures which was allowed on 20^th October, 2023 by Justice Godfrey Namundi (RTD). - Under paragraphs 5, 6 and 7 of the affidavit in support of Miscellaneous $14.$ Application No. 406 of 2023, the Applicant avers that he was dissatisfied with the ruling or orders in Miscellaneous Application No.11 of 2014 and lodged Civil Appeal No.169 of 2021 in the Court of Appeal of Uganda at Kampala which is pending hearing and therefore, that appeal therein will be rendered nugatory if this application is not granted since the Respondent intends to execute the orders of Misc. Application No.11 of 2014.

Mudangha Polycap Vs Dauya Taliba and Watibika Stephen wherein he sought for review of the judgment in Civil Appeal No.55 of 2010 and upon hearing of the same interparty, it was dismissed with costs on 27^th September 2019.

- Following the above analysis of the background of this matter, it is 16. apparent that there is a decision of court in Civil Appeal No. 55 of 2010 and an order of court in Miscellaneous Application No. 052 of 2023. All these decisions and orders of court arise from Civil Suit No. 49 of 2003 in which the Applicant was not a party. - It follows therefore that stay of execution of the orders in Miscellaneous 17. Application No. 11 of 2014 will not stay execution of the court orders in Civil Appeal No.55 of 2010 and Miscellaneous Application No. 052 of 2023 hence, rendering court orders unenforceable which is an acceptable practice. - It is also important to note that it would be outrageous and out of 18. procedure for a party to be added to a suit that was concluded without his participation. - I am surprised that the Applicant is well represented by advocates who 19. can properly advise him but they do not play their part. In my view, the proper procedure would be to at least if need be, file a fresh suit than loading this court with these useless Applications. This was the implication or natural interpretation of the decision in Miscellaneous Application No. 11 of 2014. - In the circumstance, this Application is dismissed for lack of merit. 20. - Costs are awarded to the Respondent. 21.

I so order.

# LUBEGA FA Ag. JUDGE

Ruling delivered via the emails of the advocates of the parties on $14^{th}$ day of October, 2024