Serwanga Yoweri v Hanifa Tamale and Another (CIVIL REVISION NO.3 OF 2024) [2025] UGHC 151 (31 January 2025)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION

CIVIL REVISION NO.3 OF 2024

(ARISING FROM MISCELLANEOUS APPLICATION NO. 67 OF 2023)

(ALL ARISING FROM CIVIL SUIT NO. 84 OF 2007)

SERWANGA YOWERI ::::::::::::::::::::::::::::::::::::

VERSES

1. HANIFA TAMALE

2. BULUHANE KAFEERO ::::::::::::::::::::::::::::::::::: 3. ABUBAKER. T. KIGGUNDU

RULING

BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K.

Background.

The Respondents sued the Applicant vide CS No. 84 of 2007 in the Chief Magistrates Court of Nabweru. The suit was heard interparty and the following orders issued:

- a. That the 1^st and 2^nd Defendants ( $f^t$ and $3^{rd}$ Respondents herein) are the true owners of one acre bought on 6/08/1990 situated on Block 196 Plot 239 Komamboga; - b. That the Defendant/ Applicant signs transfer and mutation forms in the Respondents' favor in respect of that one acre; - c. A permanent injunction; - d. General damages of 5,000,000/- for interference and denial of the land since $2007$ ; and - e. Costs of the suit.

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$5$

Being aggrieved by the above orders, the ,r\pp.licant/ Serwanga yoweri then filed HCMA No' 403 of 2o'r1(ia the defuact r{igh court of (}gaada at Nakavza) seeking to tevise and set-aside thc judgcmcnt and dccrcc in CS No. g4 of 2007. Horvever, the application was dismissed by Musene J (as he thcn was), in a ru'ng dated 25/05/2014, noting rhar the rearned t,iar Magisttate exercised rrcr jurisdicdon judiciously.

Subsequendy, d-re ltespondcnts filed FICMr\ No. 131 of 2021 against the;\pphcant (Serwanga Yorve'i) and the commissioner for land l{egisuation seer<ing the lollowing reliefs; -

a. A consequential order to bc madc against the ltespondents/r\pplicant to reconst-iture the sub-divided suit land co.rpr.ised in I(yadondo l]lock 196 plot ²³⁹at I(omamboga following the judgment of the cliief Magistratcs court Nabweru and rhc decrees vidc CS No. 84 of 2011:

- b .'\n order di'ecung the Commrssioncr to rccor.rstitute, ca.cel sub-divisions to enable re-constitution of Plots 239 and cancel aI cntties in the rcgrstcr relating to the land division; - c. . An ordet directing the judgcrnent dcbtor to sign trar-rsfer and mutation forms in favor of d-re Ilespondents to thc extcnt o[ 1 acrc; - d. r\n order directing the commissioner not to dear with the plots sub-divided from l>lot 239 until satisfactron of the decree in favot of the r\pplicant; - e. Payment of tl-rc 5,000,000/- as decrced, and costs in both courts.

f. -I'he above application was heard on mcrit, bur was dismissed by Busingye J., in ^arulrng dated 2/06/2023, noting that"the Applicant tboaldfle afreth ruit b1t wa1 of ordinary ruit against the third parties wlto werc regitlererl in p/o/.r / r 24, ¹/ 25, 1 / 26, / / 27, 7 / 28, I 240 and I 24/ which were mutatedf"oru Bock I ⁹⁶ Plot 239 at Komamboga antl anlt other rubsequent subdiuitiow that haue been createdfroru the uirJ subdiuitions on Block 196 plot 2)9." ⁴⁰

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Upon receiving dre ruling in rhe preceding paragraph, tl-re llespondents on 4/09 / 2023 Frled anotl.rer application vide Mr\ No. 67 of 2023 against the r\ppricant/ Respondent at the chief Magisttates court of Nabweru at Nabweru seeking the following reliefs;

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- a That the Respondent be r-rerd i'contempt of court for refusal to sign transfer forms in favor of the Applicants/plantiffs vide CS No. g4 of 2007; - b' That tl-re Respondent is by tris non-compriant conduct in furthet contempt of court ordets issucd in CS No. 84 of 2007; - c 'fhat the Respondent be found rn contcmpt fot conrinuously using trre land/I(banja aftet tl-re order of permancnt injunctron; - d. r\n order directing the Respondent to immediately sign ttansfer and mutation forms in favot of the Applicants in rcspcct of thc one acrc situate at I(omamboga; - e. An order directing d-re l{espondcnts to produce trre dupLicate title for purpose of identifying a surveyor for sub-division; and - f. General and exernplary damages; penalty; cornmittal to civil pr.ison, arnong others.

Tlre application was also heard on merit and grante<J on 19/02/2024 with ttre following orders; -

- a. That the ltcspondent/r\pplicant be cornmitted to civil ptison for a period of ⁴ months for disregard of coutt orders; - b. 'l'l-rat t[-re i{cspondcnt shall, immcdiatc\, nf6"r serwing the above detention, pay ^a 6nc of 1,000,000/-; - c. A preliminary dectee, against the l{espo,dents, to sign transfcr and mutation forms in favor of the 1" and 2'"r r\pplicant upon ptoof by the Applicants that the Itespondent is dre same pe\$on as Joel Selwanga, the registcred proprietor of land compriscd in Blocli 196 Plot 1124 and 1125 land siruatcd at I(omamboga;

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- d. That the Applicants, through the office of the Commissioner for Land Registration, shall avail court with certified entries from land registry, transfer forms, specimen signatures, copies of identification cards and passport photos used in respect of Kyadondo Block 196 Plot 1124 and 1125 to confirm the identity of the Respondent in the search reports attached, for which a final decree shall be entered; and - e. General damages of $6,000,000/-$ and costs. - Before putting the above orders into effect, the 1^st and 3^rd Respondents (*Abubaker* Tamale Kiggundu and Hanifa Tamale) sought to execute the orders in HC-Misc. Cause No. 131 of 2021 by filing HCCS No. 780 of 2023 against the Applicant together with Tumwebaze Ken, Doreen Tumwebaze, Robinah Tushemereirwe and Commissioner Land Registration on $19/07/2023$ , with the following prayers;- - a. A declaration that the Plaintiffs are the rightful owners of 1 acre out of land 80 comprised in Kyadondo Block 196 Plot 239 and currently comprised in Plots 1124, 1125, 1126 and 1127 at Komamboga; - b. A declaration that the 1^st Defendant's/Applicant's parceling out, mutating or subdividing of the land comprised in Kyadondo Block 196 Plot 239 into Plots 1124, 1125, 1126 and 1127 was illegal, fraudulent and done in bad faith; - c. A declaration that the 2^nd, 3^rd and

4^th Defendants' purported purchase of land comprised in Kyadondo Block 196 Plots 1126 and 1127 was illegal and fraudulent; - d. An order directing the 5^th Defendants to vest the certificates of title for land comprised in Kyadondo Block 196 Plot 1124 and 1125 registered in the names of the 1^st Defendant to the Plaintiff; - e. An order to sub-divide/mutate off the area encroaching on the plaintiffs' one acre from the certificate of title for land comprised in Kyadondo Block 196 Plot $1126$ registered in the 3^rd and 2^nd Defendant's names;

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- f. An order to sub-divide/mutate off the area encroaching on the plaintiffs' one acre from the Certificate of Title for land comprised in Kyadondo Block 196 Plot 1127 registered in the 4^th Defendant's names; - g. An order directing the 5^th Defendant to merge and/or amalgamate the certificates of title for Kyadondo Block 196 Plots 1124, 1125 together with portions mutated off from Kyadondo Block 196 Plots 1126 and 1127 to constitute 1 acre being the plaintiffs' land; - h. An order directing the 5^th defendant to enter the Plaintiffs on the register as proprietors of one acre upon merging; - i. A declaration that the 1^st Defendant having disposed of one acre, had nothing left to sale and transfer to the 2^nd, 3^rd and 4^th Defendants; - j. An order directing the 1^st to 4^th Defendants and their agents to deliver vacant possession of the portion of the suit land in their occupation; and - k. A permanent injunction, general damages and costs of the suit. - All the Defendants in the above suit filed their written statements of defence, and other necessary documents for the hearing of the suit, whose contents I shall not reproduce. During pendency of the said suit, and being aggrieved with the orders in MA No. 67 of 2023, the Applicant filed the instant application under the provisions

of Section 83 and 98 of the Civil Procedure Act, Section 14 & 33 of the Judicature Act Cap 13, and Order 52 rules 1 and 3 of the Civil Procedure Rules for orders that: The ruling and orders made by the learned Magistrate Grade One at the Chief i. 115 Magistrate's Court of Nabweru at Nabweru vide MA No. 67 of 2023 be revised. - The ruling and orders made vide Misc. Application No. 067 of 2023 be set $\overset{\cdot\cdot}{11}.$ aside. - The costs of the Application be provided for. 120 iii.

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Address

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I have appreciated that the orders sought to be set aside in MA No. 67 of 2023 are about contempt of court, and touch on the proprietorship of property comprised in Kyadondo Block 196 Plot 239 which is the gist of prayers in HCCS No. $0780/2023$ , which is pending in this court, before my brother Asiimwe J.

Legal representation; the Applicant was represented by Counsel Mutyaba Benard while the Respondents were represented by Counsel Kidiya Herbert. Both Counsel filed written submissions, which are to be considered in this ruling.

In view of the background, the issue to resolve is: Whether the orders sought in Civil Revision No.003 of 2024 can be granted?

130 It is evident that the orders sought to be revised and set-aside include an order against the Applicant to sign transfer and mutation forms in favor of the 1^st and 2^nd Respondents for land comprised in Block 196 Plot 1124 and 1125 land situated at Komamboga. I note that a similar order is being sought by the Respondents, according to paragraph 7 of their plaint in CS No. 780 of 2023. Therefore, there is a real possibility that deciding the merits of this application, without considering the 135 merits of CS No.780 of 2023, can result into contradictory court orders over the same land.

I have considered the law and principles on consolidation of suits (Order 11 rule 1 of the Civil Procedure Rules; Mugisha Benon Grace & 3 Ors Vs Chwezi Properties Ltd Misc. Civil App No. 1053 of 2020; and Fountain Publishes Ltd & 2 Ors Vs Prime Finance Co. Ltd. HCMA No. 1066 of 2020). However, I found that the same do not apply in the circumstances at hand, since this application is not a suit. In the alternative to that, considering that the application and HCCS No.780 of 2023 is pending before the same court, this court will avoid delay, by invoking its inherent power under Section 17(2)(b) of the Judicature Act Cap.16 and orders that the questions raised herein be determined concurrently in civil suit no $780/2023$ . Accordingly, the application is hereby sent to the Deputy Registrar


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for purposes of re-allocating the same to Judge who is handling civil suit no $780/2023$ .

Let each party bear their own costs for this application.<br> $\bigcirc$ 150 Signed, dated and delivered at KAMPALA this .................................... 10 $2025.$

Nabakooza Flavia. K Judge