Tumwine v Tindikyeitira (Miscellaneous Application 169 of 2024) [2024] UGHC 1148 (18 October 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT HOIMA

MISCELLANEOUS APPLICATION NO.0169 OF 2024

(Arising From Civil Suit No.0228 of 2022)

TUMWINE FRED ::::::::::::::::::::::::::::::::::::

VERSUS

TINDIKYEITIRA ROSE :::::::::::::::::::::::::::::::::::: Before: Hon. Justice Byaruhanga Jesse Rugyema

RULING

- This Application is brought under Section 98 of the Civil Procedure Act, $\lceil 1 \rceil$ Section 37 of the Judicature Act and O.52 rr.1 & 3 CPR seeking the following orders: - a) That a consequential order be issued granting the Applicant vacant possession of land and Residential house comprised in FRV HQT 948, Folio 16, Block 17, Plot 952 situate at Kigaragara measuring 0.0630 Hectares, L. C1 Busiisi Division, Hoima Municipality in Hoima District. - b) Costs of the Application be provided for. - The grounds in support of the Application are contained in the affidavit of $[2]$ the Applicant Tumwine Fred and briefly, they are as follows: - a) The Applicant is the successful party in LD-C. S No.0228 of 2022 formerly MSD. LD-C. S. No.46 of 2017. - b) That due to the omission by the drafts man to include a prayer for vacant possession in the plaint/pleadings, the Applicant is unable to access the property because it is fenced with a locked gate and the Respondent's whereabouts are unknown. - c) That it is in the interest of justice that court grants a consequential order for vacant possession to enable the Applicant enjoy the fruits of his judgment. - The Applicant was represented by Mr. Mwebaza Christopher of M/s $[3]$ Mwebaza & Co. Advocates, Hoima who filed written submissions for the consideration of court in the determination of the Application. The Respondent did not file a reply because the Application arises from a suit

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that proceeded ex parte after court had established that her whereabouts are unknown.

Consideration of the Application

- The Applicant herein seeks a consequential order for vacant possession to $[4]$ enable him access the property/residential house comprised in FRV HQT 948, Folio 16, Block 17, Plot 952 situate at Kigaragara, L. C1 Busiisi Division, Hoima Municipality in Hoima District that was decreed to him vide C. S No.0228 of 2022. - Learned Counsel for the Applicant submitted that the Applicant was $[5]$ declared the lawful owner of the suit land/residential property herein described but due to the omission of the prayer for vacant possession in the plaint/pleadings, the same was not granted. That therefore, the Applicant filed this application to be granted a consequential order for vacant possession so as to be able to enjoy the fruits of his judgment. He relied on the authorities of Kalibala & Anor Vs A. G, H. C. M. A No.70 of 2015, Beatrice Odongo Vs Tamp Engineering Consultants Ltd & 2 Ors, H. C. M. A No.129 of 2023 to support his submission. - A consequential order is a directive that gives effect to a court's decision $[6]$ and or judgment, making it enforceable. It is a natural corollary to the judgment and must be incidental to the main claim, See Registered Trustees of Apostolic Church Vs Okorolemi (1990) 6 NWLR and Kanohiri Feddy Vs Tumusiime Rovina & Anor, H. C. M. A No.0336 of 2023. - Indeed, this court on the 13^th day of September 2024, passed judgment vide $[7]$

C. S No/0228 of 2022 in favour of the Applicant and the orders granted didn't not include an order for vacant possession as the same was omitted in the pleadings (A copy of the Judgment is marked Annexture A). The Applicant in his affidavit, states that the Respondent locked the gate and the house of the suit property rendering the property inaccessible and yet the Respondent's whereabouts are unknown. Court visited locus during the determination of the main suit, H. C. C. S No.228 of 2022 and ascertained the above allegations. - In the premises, in consideration of the pleadings and the outcome i.e the $[8]$ judgment if find that in the interest of justice, the Application ought to be allowed to enable the Applicant enjoy the fruits of his judgment. The sought consequential order is intended to give effect to the orders the court made in the main suit especially the order decreeing the suit property to the Applicant thus give meaning to the judgment. This court therefore, grants the Applicant the sought consequential order for vacant possession of the land and or property/residential house comprised in FRV HQT 948, Folio

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16, Block 17, Plot 952 situate at Kigaragara, L. C1 Busiisi Division, Hoima Municipality in Hoima District.

The Application is therefore in the premises granted with no order as to $[9]$ costs.

Dated at Hoima this 18^th day of October, 2024.

Byaruhanga Jesse Rugyema JUDGE

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