Kintu Ronald Bulere and Another v Grace Power Aligawesa and Others (Miscellaneous Application 387 of 2024) [2025] UGHC 376 (4 June 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT LUWERO

HCT-17-LD-MA-0387-2024

(Arising out of Civil Suit No. HCT-17-LD-CS-0093-2022)

- 1. KINTU RONALD BULERE - 2. KAVUMA SAMUEL (Administrators of the Estate of the late Nsabi Bulere Anderea) :::::::::::::::::::::::::::::::: APPLICANTS

VS

- 1. GRACE POWER ALIGAWESA - 2. FRED LUBOWA - 3. HENRY SSEMAKULA SSEMWOGERERE - 4. SUSAN NAWANGA. S - 5. MUKUNGU FREDRICK - 6. SEMWOGERERE SULPISIO - 7. SSENOGA IMMACULATE - 8. COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

BEFORE: HON. JUSTICE GODFREY HIMBAZA

Introduction

- This application was brought by Chamber Summons filed in this court on $1$ 19^th December, 2024 under Section 98 of the Civil Procedure Act Cap 282 and Order 41 rules 1 of the Civil Procedure Rules for the following reliefs; - a) A temporary injunction doth issue restraining the respondents, their agents, servants and anyone rightfully acting under their directions from evicting, selling, constructing, cultivating on the suit land comprised in Bulemezi Block 620 Plot 4, 5, 7, 9, 10 and $11 -$ (formerly

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Plot 3), at Kibula, Luwero district until final determination of the matn suit.

- b) Costs of this application be provided for. - 2. The grounds of this application are contained in the affidavit in support and affidavit in rejoinder deposed by the first applicant -Kintu Ronald. - 3. Only the lirst respondent -Grace Power Aligawesa filed an afirdavit in reply while the other respondents did not. - 4. When the matter came up for hearing on 86 April, 2025, both counsel submitted that the main suit was partly heard and eventually transferred from Kampala to this court, for further management, I directed parties file their written submissions along the following schedules; applicants by lst April, 2025, respondents by 24t\, April, 2025, applicants' submissions in rejoinder by 2\$\* April, 2025, which they did, save for the third, fourth, fifth and seventh respondents. - 5. On Sttt May, 2025, counsel for applicants informed court that having complied with earlier directions, the third, fourth, fifth and seventh respondents had not filed an affidavit in reply. Counsel for the third to seventh respondents intimated that he had established that the instant application is an illegality and opted not to file an affidavit in reply but only written submissions raising matters of law which had already been filed on ECCMIS. I then directed the parties to file their submissions on the following schedule; third to seventh respondent by 56 May, 2025, first respondent by 9ft May, 2025, Applicant's rejoinder by l6ttt May, 2025, which they did.

Legal Representation

The applicants were represented by Jamal Bakiti Ahmed of Lugoloobi Associated Advocates, whereas the first respondent was represented by Sekajja Elvis on brief for Musoke Ida of Kavuma Kabenge & Co Advocates and the third to seventh respondents were represented by Abu Mayanja of Makeera & Co Advocates. 6

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Background to the application

- 7. The first and second applicants/ plaintiffs sued the first to eighth respondents in Civil Suit No. HTC-17-LD-CS-q)93-2O22(formerly HCCS no. 317 of 2O2ll for declarations as to ownership of the suit land, fraudulent dealings and registrations on the suit land, orders of cancellation of titles, a permanent injunction and general damages. - 8. Whereas the first and eighth respondents/ defendants filed their respective written statements of defence, the third to seventh respondents/ defendants filed a joint written statement of defence, wherein the first, third to seventh defendants denied the plaintifls claims and asserted rival claims of ownership of the suit land as the eight defendant denied liability refuting the plaintiffs' claims. The second defendant did not lile his written statement of defence. - 9. The main suit was then partly heard from the Land Division of the High Court at Kampala and eventually was transferred to this court, for further management, hence this application by the plaintiffs.

I s sue s for detertnlnatlon

- a) Whether this application warrants the grant of a temporary injunction - b) What are the available remedies?

Applicants' case and submissions ln respect of lssue 1.

- iO. The first applicant deposed that he together with the first applicant, are administrators of the estate of Andereya Nsabi Bulere . That they together with the beneficiaries of the estate of late Andereya Nsabi Bulere and the bibanja holders on suit land enjoyed a quiet and peaceful possession of the suit for over sixty years, utilizing it for cultivation, residential and burial grounds without any third-party claims until April, 2024 when the third, fourth, frfth, sixth and seventh respondents in concert with their agents attempted to enter and evict them from the suit land. - ¹1 . The applicant further deposed that around November 2024 , the respondents' agents destroyed the first applicant's house and stole some

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items and subsequently, on the 25e November,2024, the first respondent in company of others entered the suit land and attempted to take possession and evict the applicants and other occupants by installing boundary poles and construction materials on the suit land despite having lived thereon for over sixty years and as a result, the applicants and entire occupants live in fear of an impending eviction and at the same time stand to suffer irreparable damages if an injunction restraining the respondents is not issued to preserve the status quo.

- 12. Counsel submitted that the court should be pleased to extend leniency and determine the application on its merits notwithstanding the issue of late filing and service. Counsel therefore highlighted the challenges faced on ECCMIS to wit inability to access hearing notices; which he states was acknowledged by the Deputy Registrar. - 13. On whether the applicant has a prima facie case with a probability of success; Counsel submitted that main suit has high probability of success and the same has been partly heard. - 14. On the condition of irreparable harm, while relying on Kiyimba Kaggwa Vs Halji Nasser Katende (19851 HCB 43, counsel submitted that the respondents and their agents together with their advocate --counsel Abu Mayanja made attempts to forcefully enter the suit land and evict the applicants and bibanja holders thereon and around November, 2024, th,e first applicant's house was destroyed by the said agents. He submitted further that the RDC of Luwero directed an illegal distribution of the suit land notwithstanding the on-going dispute. As such, if a temporary injunction is not granted, the respondents will forcefully occupy the suit land leading to loss of lives, properties and bodily injuries. - 15. Counsel further submitted that the balance of convenience lies in favour of the applicants, who together with the bibanja holders have been on the suit land for over fifty (50) years and that the application satisfies the legal requirements for a grant of a temporary injunction.

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First regpondent's case and submissions in respect of issue I

- 16. The first respondent deposed that being the registered proprietor of the suit iand measuring 40.5 hectares, the applicants are neither in occupation nor utilization -cultivation of the suit land and the said bibanja holders were not on the suit land when he purchased it in 2006 and as such, they are fictitious. And further that having been in legal possession since 2006, he stands to suffer damages and as such, the balance of convenience lies in his favour and the status quo be maintained in that regard. - 17. Furthermore, the respondent deposed that the allegations of forced eviction and destruction of property are false, baseless and unsubstantiated and there is no proof of such threats. - 18. It was the submission of counsel for the first respondent that the application is incompetent on account applicant effecting service on the respondent out of time, without seeking for leave of court, contrary to Order 5 rule 1 of the Civil Procedure Rules. Counsel further submitted that the af{idavit in support of the instant application is incurably defective on account of offending Section 21 of the Oaths Act and Section 3 of the Illiterates Protection Act wherein the jurat or certificate of translation was not done by a commissioner for oaths as such, both application and affidavit should be struck off. - 19. On whether the application has a prima facie case with a probability

of success, counsel for the 1"t respondent averred that the main suit is barred by limitation since the first respondent registered his interest on the suit land in 2006 -the time when the cause of action arose and as such, there is no likelihood of success. - 20. Counsel further submitted with regard to the condition of irreparable damages that the applicants have not adduced evidence of any developments made nor of possession of the suit land whereas the first

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respondent has had legal possession since 2006 and as such, he risks suffering irreparable loss.

- 21. Lastly, counsel submitted that the balance of convenience lies in favour of the respondent who risks to suffer inconvenience which will be caused by a grant of an injunction. - 22. As for the third, fourth, fifth and sixth respondents, the gist of their case was confined to preliminary points of law pointing out the defects contained in the applicants' aflidavit in support which, points have been raised by the lirst respondent. In summary, counsel submitted that the instant application which was endorsed on 26ft January, 2O25 was served out of time -34 days later, without leave of court which is contrary to the rules governing service of summons. - 23. Counsel further submitted that the annexures on the affidavit in support are not stamped and sealed and marked in accordance with the Advocates (Commissioner for Oaths) Act and the schedule to the Rules. - 24. The respondents raised some preliminary points of Law. The law provides that when a preliminary objection is raised, it ought to be disposed off first before determining the main suit or application. See Fredrick K. James Juniu and Another Vs. Madhivan Group and Anor. Migc. Appllcatlon no. 688 of 2O15 - 25. O.15r 2 Civil Procedure Rules provides as follows;

" Where issues both of Law and fact arise in the same suit, and the Court is of the opinion that the case or any part of it may be disposed off on the issue of Law only, it shall try those issues first and for that purpose may , if it thinks fit postpone the settlement of the issues of fact until after the issues of law have been determined"

Resolutlon of prellminary Polnts of Law

a) Whether the application is incomoetentlu before court for hauing been serued out of time without leaue qf court

6lPage ItllL-,-- - 26. Order 5 rule 1 of the Civil Procedure Rules states that service of summons shall be effected within 21 days from the date of issue and where the time lapses and the plaintiff omits to apply for extension of time within which to serve those summons, the suit shall be dismissed. - ²⁷. The aforementioned rules are very instructive on the effecting of service of summons and the effect of not abiding by the said timelines. - 28. In the case of Bitamiei Namuddu Vs. Rwabuganda Godfrey, SCCA No. 16 of 2014, the court held as follows;

"The consequences of failure to serve summons within twenty one days from the date of issue and of not making application for extension of time in the prescribed period are clear and straightforward-The suit stands dismissed without notice. The provision does not give court discretion to decide whether to dismiss or not dismiss the suit. The court's action is dictated by law and it is mandatoq/.

29. Furthermore, I am in agreement with my learned brother Justice Stephen Mubiru in EJab Famlly Investlaent and Trading Company Ltd Vs. Centenary Rural Development Bank Ltd HCCS No. 01 of 2OO4 wherein he observed as follows;

> "The timelines in the rules are intended to make the process of judicial adjudication and determination swift, fair, just, certain and even-handed. Indeed, public policy demands that cases be heard and determined expeditiously since delay defeats equity and denies the parties legitimate expectations. See Fitzpatrick Vs. Batger & Co. Ltd 1196712 AIIER 657.1t is for those reasons that non-compliance with the requirement of renewal of summons is considered ^a fundamental defect rather than a mere technicality and it

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cannot be cured by inherent powers since issuance and service of summons goes to the jurisdiction of the Court"

- 30. Counsel for the applicant in his submissions made a plea as follows; ". . . We wish to plead with this court to continue with its application of its discretion and be lenient to all parties and disregard technicalities in the interest of Justice. We wish to further inform court that the Deputy Registrar and now trial Judge allowed the parties to file their affidavits in replies out of time." - 31. Unfortunately, as stated in the case of Ejab Family Investment and Tradlng Company Ltd Vs. Centenary Rural Development Bank Ltd HCCS No. 01 of 2OO4 (cited above), the defect cannot be cured by exercise of inherent powers as it goes to the jurisdiction of the court. - 32. Applications whether by Chamber Summons or Notice of Motion and or hearing notices are by Law to be served following after the manner of the procedure adopted for service of summons under O. Srule 1(2) of the CPR. This position was taken in the case of Amdan Khan Ve. Stanbic Bank(U) Ltd HCCM9OO of 2013 in which this court followed the Supreme Court decision in the case of Kanyabwera Vs. Tumwebwa (2OOS! 2 EA 86 at page 94 where Oder JSC stated as follows...rahat the rule stipulates about seruice of summons in my opinion applies equallg to seruice of hearing notices". - 33. In the instant application, the Chamber Summons was duly endorsed and sealed with the Court seal by the Registrar on 26m January 2025. For all intents and purposes, that is the date of filing from which computation of the time for service on the opposite party began to run. The applicants did not serve the application on counsel for the respondents until 18s March 2025, which was about ² months after the same had been issued. Clearly the 21 days

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stipulated in the rule had long expired and any service of the application was out of time set by the Law. Therefore, the service of the application upon the respondent's counsel was outside the time prescribed by law, for such service without applying to court for the extension of time within which to serve the application renders the application incompetent before court. In the case of Kevin Otim vs. Eskom Uganda Limited Misc. Application no. fi)41 of 2023, my learned sister Justice Faridah Bukirwa stated that since the provisions under O. 5 rule I of the Civil Procedure Rules are of mandatory application, it results into a penalty as a result of default in accordance to O. 5 rule 1(3) (a) (b) of the Civil Procedure Rules which is dismissal of the suit or application. She referred to Gladys Senkubuge & Another vs. Klblrango Joyce Misc. Application no. l7O4 of 2019.

34. In light of the above, I have no reason to depart from the decisions of my learned brothers/ sisters in the cases cited above. I consequently uphold the preliminary objection that the application is incompetent for being served out of time, without seeking leave to extend time.

b) Whether the aoollcdnt's affidavlt ln sttpport ls defectlue

- 35. Section 2 of the Illiterates Protection Act Cap 288 envisages that where an illiterate signs a document, the person shall indicate a statement with their full name and address, stating that the said document was read over and explained to the illiterate before he/she appended their signature. - 36. Section 1 of the Oaths Act Cap 2l lays out the various oaths taken in Schedule 1 - Form A of the act. With regard to the form of a jurat, it can be administered by either the commissioner for oaths or any third person who has read the aflidavit to the deponent and the same is to be commissioned - 37. A jurat is different from a certificate of translation; Counsel for the respondent seems to be misguided in this regard. The first applicant's

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affidavit in support has a certificate of translation made in line with Section 2 of the Illiterates Protection Act and as such there is no requirement for its commissioning.

- 38. Furthermore, the aforementioned provisions do not restrict the making of a certificate of translation to only commissioners for oaths but to any person knowledgeable of both English and a local language understood by the illiterate. What is important is that the impugned affidavit was commissioned with a certificate of translation thereon and the translator stated their full names and address. - 39. However, it is a legal requirement that annextures to an affidavit should be signed and stamped by the Commissioner for Oaths. Counsel for the 3rd,4th ,sth, and 6fr respondents argued that the annextures to the affidavit in support of the application are not stamped and sealed by the Commissioner for Oaths and therefore render the application defective. Under Rule 8 of the Commissioner for Oaths Rules which requires that annextures / exhibits to affidavits " shall be secarelg sealed to the affidauits under the seal of the Commissioner and shall be marked utith serial letters of identification" gee Kassami Vs, Commissloner Land Registration Miscellaneous Applicatlon to.424 of 1996 and Byeshamika John Vs Kankwerere Lydla Misc. Application to. 82 of 2OO5. That requirement is couched in mandatory terms. - 40. In the case of BaryaiJa Jullus Vs. Klkwlsire Zaveio, & Anor CACA No. 324 of 2o25 the court of appeal while dealing with a similar issue stated as follows; - 'Pirst of all, we do not agree with the argument of counsel for the applicant that the judgement of court attached to an affidavit need not be securely sealed by the commissioner for oaths. Sealing is a requirement of rule 8 of the Commissioner for Oaths Rules which does not provide for any exceptions. If at all the framers of that rule intended judgements of court to be exempted, they would have

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provided for exceptions under the rules which they did not do... Be that as it may, it is still the duty of this court to determine whether non-compliance with that provision of the Law is a mere irregularity which can be ignored or it is fatal, in which case the annextures should not be relied on. To answer this question, we have looked at the purpose of rule 8 of the Commissioner for Oaths Rules by considering the language used and the object of those rules as guided in Project Blue Sky Inc. Vs. Australian Broadcasting Authority (1998) 194 CLR 355 which was followed by the Supreme Court in Sitenda Sebalu Vs. Sam K. Njuba & Anor Supreme Court Election Petition no. 26 of 2OO7.lt is the view of this court that the purpose of rule 8 of the Commissioner of Oaths Rules is to ensure authentication of the documents referred to in the affidavit and attached thereto. The mischief to be avoided is attachment of and reliance on a document other than the one referred to in the affidavit. That is why the rule requires the secure sealing of the exhibits and marking with serial letters of identification". The import of this statement is that the rules are of universal application.

41. In view of the above reasons, I am inclined to agree with counsel for the respondents on the preliminary objections raised. It is my view that the preliminary objections render the application incompetent. I therefore strike out the application. Costs shall abide the outcome of the main suit. I so order

l(< {(/^r ^e Dated ... ......dayof ..2025 .-'l-- GOD AG. JUDGE

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