IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NUMBER 731 OF 2015
(ARISING FROM CIVIL SUIT NO. 106, 150 AND 788 OF 2007)
GLADYS NYANGIRE KARUMU}............................................................APPLICANT
- MOHAMED KALISA}
- DCFU LEASING CO. LTD}......................................................RESPONDENTS
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA IZAMA
The Applicant commenced this application under section 98 of the Civil Procedure Act as well as Order 52 rules 1, 2 and 3 of the Civil Procedure Rules for a consequential order of eviction to issue against the first Respondent ordering him to vacate the suit premises comprised in LRV 2839 folio 17 Plot 108 Katalima Road, Nakawa, Kampala as a consequence of the decree of the court in the consolidated civil suit numbers 106, 150 and 788 of 2007. It is further for the costs of the application to be provided for.
The grounds of the application are that the court decreed that the sale and transfer of the suit property by the second Respondent to the first Respondent was fraudulent, illegal and void ab initio. Secondly the court decreed the cancellation of the first Respondent's name from the title and restoration of the Applicants name as the lawful registered proprietor of the suit property. Thirdly the first Respondent's application for an interim stay of execution was dismissed by the Court of Appeal on a second appeal in Civil Reference Number 17 of 2013 and there is no court order of stay of execution that stops the Applicant from been registered as decreed by the court. Fourthly the Applicant applied for execution of the court decree in the Execution and Bailiffs Division in High Court Miscellaneous Cause 647 of 2015 and the court directed the Commissioner of land to cancel the first Respondent's name from the register and restore the Applicant as the registered proprietor. On the fifth ground the Commissioner for land proceeded to cancel the first Respondent's name from the register book and restore the Applicants name as the registered proprietor. On the sixth ground the cancellation of the first Respondent's name from the certificate of title will be in vain and will not serve its desired effect if the first Respondent is not evicted from the suit premises as the Applicant will continue to suffer irreparable damage because it is deprived of the use of an occupation of her premises. Finally on the seventh and eight grounds the Applicant avers that the application is to give effect to the order by ordering the first Respondent to be evicted from the property to prevent a miscarriage of justice. Lastly that it is in the interest of justice that the application is granted.
In support of the application the Applicant relies on the decree of the court whose details will be considered. The basic facts are that the first Respondent lodged Civil Appeal Number 146 of 2013 against the judgment and decree of this court and filed Miscellaneous Application Number 145 of 2013 for stay of execution of the decree but the application has never been prosecuted. The first Respondent also filed Miscellaneous Application Number 152 of 2013 for an interim order which was heard and dismissed by the Assistant Registrar of the Court of Appeal on 4 July 2013. The first Respondent’s Civil Reference Number 116 of 2013 and Civil Reference Number 139 of 2013 as the first and second appeals respectively challenging the dismissal of his application for an interim order were dismissed according to the ruling of the Court of Appeal attached to the application. Thereafter the Applicant applied for execution of the decree and the High Court directed the Commissioner for land registration to give effect to the decree by cancelling the first Respondent's name from the register book and restoring the Applicant as the registered proprietor. The Applicant in the application prayed for execution to issue against the first Respondent by way of an order of eviction but the judge in charge of execution of decrees and order of the high court held that there was a lacuna in the decree which could only be cured by a consequential order of the trial court. Consequently the Applicant contends that the cancellation of the first Respondent's name from the certificate of title would be in vain and would not serve its desired effect if the first Respondent is not evicted from the suit premises because the Applicant continues to suffer irreparable damage upon been deprived of use and occupation of her premises. There is a need to give effect to the order of cancellation of the Respondents name from the register by an order of eviction of the first Respondent.
The first Respondent who was the fourth Defendant in the main suit (consolidated suits) filed an affidavit in reply opposing the application. He affirms that he lodged an appeal in Civil Appeal Number 146 of 2013 which was pending in the Court of Appeal and the subject matter is the same suit property in which consequential orders are being sought in this application. He deposes that the Applicant also filed a cross appeal. He has applied for stay of execution of the decree and orders of the court in High Court Miscellaneous Application Number 143 of 2013 and Application Number 209 of 2015. On that basis he contends that the application of the Applicant is intended to circumvent the pending application for stay of execution in the Court of Appeal and if granted has the effect of rendering the application nugatory. He contends that the Applicant has already had his name cancelled from the title of the suit property and would dispose of the suit property before the respective rights of the parties to the property are finally disposed of by the Court of Appeal. The Applicant by her own consent filed an application for stay of execution of the orders and decree she wants to be executed in Miscellaneous Cause Number 221 of 2013 to await the outcome of the final appeal. The Applicant also consented to stay of execution in Miscellaneous Cause Number 204 of 2014 on 12 July 2013 and Miscellaneous Application Number 222 of 2013. He applied for and was granted an interim order of stay of execution on 25 September 2015 in HCMA 2413 of 2015 pending the hearing and determination of the main application 2405 of 2015 fixed for 30th of October 2015. The interim order substantially affects this application which seeks consequential orders of eviction.
The first Respondent further deposes that the grant of consequential orders would prejudice his interest in the suit property and would be an abuse of the orders to maintain the status quo. The mere fact of cancellation of his name from the title deed does not conclusively determine the rights of ownership to the disputed property. Furthermore the first Respondent deposes that the application for consequential orders is premature and would tantamount to final disposal of the appeal by this court and is procedurally and legally wrong.
The appeal process is already underway and has already been the subject of a conference between the parties and is awaiting the constitution of a panel of judges for hearing the appeal. The Applicant will not suffer any prejudice because she has a cross appeal in the Court of Appeal awaiting final determination and settlement of the rights of the respective parties to the appeals. In the premises the first Respondent deposes that it is in the interest of justice that the court rejects the application for consequential orders so that the rights of the parties are fully and finally determined by the Court of Appeal in the pending appeal. Alternatively an order of stay of the application should be issued pending the hearing and determination of the appeal.
In rejoinder the Applicant deposes that it is true that the first Respondent lodged Civil Appeal Number 126 of 2013 and an application for stay of execution in the Court of Appeal but the Court of Appeal has never granted the first Respondent a stay of execution order despite three attempts to get it. The decree of the court was already executed by cancellation of the first Respondents name from the title deed to the disputed property. The rest of the decree was stayed by consent and there is nothing left in the decree for execution. On the basis of advice of her Counsel she deposes that the application has no effect on the first Respondent’s right of appeal or application for stay of execution. Furthermore the order of stay of execution is inconsequential because it seeks to stay restoration of the Applicants name from the register of titles and is inconsequential because the first Respondents name was cancelled and the Applicant’s name restored. Furthermore on the basis of the advocate’s advice she deposes that the stay order cannot extend to the rest of the decree.
In further rejoinder the court decree restored the Applicant as a debtor to DFCU bank whose mortgage remains registered on the certificate of title. The first Respondent became a trespasser on the property and an eviction order is necessary as a consequence of the judgment and decree of the court. Furthermore the grant of the present application will not prejudice the first Respondent because under his purchase agreement with DFCU bank, full indemnity for loss of his interest in the property was provided for.
Furthermore the execution division High Court never stayed execution of the decree or any part thereof and all attempts by the first Respondent stay execution of the decree have been futile and this application has been prompted by the ruling and orders of the High Court which pointed out that there was a lacuna in the judgment and decree of the trial court for failure to decree eviction of the first Respondent. Furthermore the Applicant was in possession of the suit property at the time of commencing the civil suit and before being evicted and this explains why there was no prayer for eviction of the Respondent in the main suit. Furthermore on the basis of advice of her Counsel she deposes that the current application does not seek eviction of the Applicant which can only be done by the execution division of the High Court but seeks inclusion of an eviction order in the decree.
The court was addressed in written submissions. Counsel Okello Oryem Alfred together with the Raymond Owak represented the Applicant while Kyazze Joseph represented the first Respondent. Counsel Olivia Kyalimpa Matovu represented the second Respondent.
The Applicant’s Counsels and the first Respondents Counsel addressed the court in writing however I have not received any written submissions from the second Respondent’s Counsel. The conclusion is that the second Respondent’s Counsel abandoned her request to reserve a right of submission though no evidence was adduced on the second Respondent's behalf by way of an affidavit in reply. In other words she has deemed it fit not to exercise her reservation to submit on the basis of the evidence on record should she deem it necessary.
I have carefully considered the Applicant’s written submissions as well as that of the first Respondents Counsel.
The first Respondents Counsel deemed it fit to argue on a preliminary point that the court has no jurisdiction to entertain an application for consequential orders arising out of the judgment and decree and orders of the court when it is the subject of a pending appeal by the Respondent and cross appeal by the Applicant. The court can only entertain the application upon determination of the appeal by the appellate court.
Secondly the Respondent’s Counsel contended that the court upon pronouncement of the judgment became functus officio and its judgment is the subject of an appeal in the Court of Appeal. Until the appeal is disposed off, the court does not enjoy jurisdiction to entertain an application of this nature. The first Respondent’s Counsel submitted that until the rights of the parties are determined by the Court of Appeal, other than the aspect of execution directly flowing from the decree, the court cannot exercise any powers in respect of the judgment and decree to grant consequential orders arising there from. The fact that the Applicant has executed part of the decree by causing her re-registration on the certificate of title to the suit property is not by itself a ground upon which the application for consequential orders should be granted. This is so especially because the rights of the parties are the subject of determination by the Court of Appeal.
Secondly the application can only be entertained upon determination of the appeal consequently the application for consequential orders are premature. He contended that under section 11 of the Judicature Act, the Court of Appeal has similar powers and authority as the trial court can grant relief that the High Court would grant including consequential orders and may direct the High Court to determine such relief.
On the basis of the above submission the High Court cannot contemporaneously exercise powers the Court of Appeal can exercise in the appeal. The first Respondents Counsel relies on Civil Appeal Number 55 of 2008 Paul Nyamarere vs. UEB (in Liquidation). The situation would have been different if there was no appeal pending from the decision of the High Court. In other words the court would be reopening its judgment yet it is functus officio. He contended that the position of law is that the consequential order made subsequent to a judgment which detracts from the judgment or contains any extraneous matters is not an order made within jurisdiction because at that stage, having determined the rights of the parties by giving judgment for the Plaintiff as claimed, the judge became functus officio except for any act permitted by law or the rules of the court according to the Supreme Court of Nigeria in Mike Momah vs. Petroleum Inc Suit No. SC. 183/1995. To proceed with the application would have adverse and absurd consequences as follows:
- It would necessarily mean that the judgment of the court in the lead suit is equally a subject of modification, yet it is on appeal.
- If it is granted it tantamount to final disposal of the appeal by the court which is legally and procedurally wrong.
- It would have enabled the Applicant to ingeniously circumvent the pending application for stay of execution in the Court of Appeal and in the effect render the said application of the Applicant nugatory as it gives an opportunity to the Applicant, who has already caused cancellation of the Respondent's name from the register to alienate the suit property before the parties respective rights to the property are finally determined by the appellate court.
- It would enable the Applicant to obtain possession of the property without the Applicant complying with the additional orders of the court to repay the loan to DFCU bank of Uganda shillings 581,000,000/= in the 60 days which he has not paid.
The fourth ground of objection to the application is that the exercise of discretion must be premised on the need to protect and enhance the dignity of the court and in this application, granting the consequential order sought regardless of its effect to the pending appeal in order of maintenance of the status quo derogates from the need to protect the dignity of the court. Whereas the court has inherent powers to grant any such orders as the justice of the case may dictate, such discretion must be exercised judicially.
Furthermore the first Respondent’s Counsel contended that there is an interim order to maintain the status quo of the suit land issued on 25 September 2015 pending the hearing and determination of the main application fixed for 30 October 2015. In effect the grant of the Applicant’s application will definitely alter the status quo. The status quo clearly means that the Respondent is maintained in possession. He submitted that granting a consequential order for eviction will have the effect of altering the status quo as it gives an opportunity to the Applicant to dispossess the Respondent.
Furthermore as far as the interim order is concerned, the first Respondents Counsel contended that the interim order remains valid and until and unless set aside through a lawful process. The court order is binding on the parties regardless of whether in the view of such a party, the order is null, valid, irregular or regular unless and until varied or set aside in appropriate proceedings. In the premises the first Respondent’s Counsel concludes that it is in the interest of justice that the application is rejected and the rights of the parties determined by the Court of Appeal.
The Applicant’s Counsel in the response relies submitted in reply to the grounds of objection contained in the affidavit in reply of the first Respondent. On the contention that there is a pending appeal and an application for stay of execution which would be rendered nugatory if this application is heard and granted, the reasons advanced is misconceived because the decree has already alienated the property from the first Respondent. The consequential order will only give effect to the decree. It will not determine any property rights. Secondly the Respondent’s pending application for stay of execution is either premature or misconceived or overtaken by events because the first Respondent’s name has already been cancelled from the certificate of title and replaced with that of the Applicant. The Applicant’s Counsel further submitted that the decree did not provide for eviction of the Respondent from the suit property. It follows that the pending application for stay of execution is non – suited because there is no eviction capable of being issued by the executing court unless and until the consequential order is granted as sought in the application. Finally the first Respondent’s arguments belong to the executing court because even if the consequential order is granted, the Applicant can only enforce by order of the executing court. The first Respondent would be at liberty to advance his arguments there, whatever the value.
Secondly the issue of the Applicant having extracted by consent orders of stay of execution, it is true that the first Respondent lodged an appeal in an application for stay of execution which the Court of Appeal has never granted despite three attempts of the first Respondent. In the meantime the decree of the court has been executed by cancellation of the first Respondent's name from the title of the disputed property and restoration of the Applicant’s name as the registered proprietor. The rest of the decree has been stayed by consent and there is nothing left in the decree for execution. In any case the grant of the present application has no effect on the first Respondent’s right of appeal or application for stay of execution.
As far as the interim order maintaining the status quo is concerned, the Applicant’s application does not seek consequential orders emanating from execution of the decree. The instant application does not arise from execution of the decree but seeks to give just effect to the decree to avoid a miscarriage of justice. Moreover the Applicant’s Counsel argued that the interim order extracted by the first Respondent in Miscellaneous Application No. 12413 of 2015 is misleading because it is a stay of execution of the decree ordering cancellation of the first Respondent's name which order has been overtaken by events.
On the question of whether the application cannot be granted because the Applicant did not settle the outstanding loan to the second Respondent as decreed by the court, the contention is without merit. The Applicant’s Counsel submitted that the first Respondent is a trespasser while the Applicant remains indebted to the bank as decreed. The only way the Applicant can satisfy the bank as decreed is if the consequential order of eviction is issued. That is why the second Respondent cannot logically oppose the application. The application can be granted without affecting the loan which is still registered against the certificate of title.
Furthermore the Applicant’s Counsel contends that the grant of the application cannot prejudice the first Respondent because under the purchase agreement with DFCU bank Ltd, for indemnity against loss of his interest in the property was provided for.
On the last contention that the application is premature because the rights of the parties are not yet finally determined due to the pending appeal, the Applicant’s Counsel contends that the court has jurisdiction to grant the application. This is because without the question of eviction sorted, the lacuna in the decree will remain. It cannot be sorted by the Court of Appeal with the result that the appeal judgment would be as ineffective as the current decree. It will also avoid a multiplicity of suits and prevent a miscarriage of justice to both parties.
I have carefully considered application, the affidavit evidence for and against the grant of the application as well as the submissions of Counsel and authorities cited. Briefly the judgment of the court as reflected in the decree extracted in May 2013 inter alia provides that the sale and transfer of the Plaintiff’s suit property by the first, second and third Defendants to the fourth Defendant was fraudulent, illegal and void ab initio.
Secondly the Registrar of titles cancelled the Defendant's name from the register book and restored the first Plaintiffs name as the lawful registered proprietor thereof. Additionally ground 7 of the decree is that the third and fourth Defendants shall pay the Plaintiffs general damages of Uganda shillings 50,000,000/= in addition to being liable to pay mesne profits to the Plaintiffs at a monthly rate of rent to be established from June 2007 until handing over vacant possession of the premises to the Plaintiffs. Monthly rent shall be established by the Government Valuation Surveyor and the issue was referred and the decision is binding on the parties. The Plaintiffs were further awarded interest at 21% per annum from the date of judgment until payment in full and award of general damages and mesne profits.
The fourth Defendant in the main suit is the first Respondent to this application and the person sought to be evicted. The complaint of the Applicant can be discerned from the wording of the decree. The decree provides inter alia that the fourth and third Defendants would be liable to pay mesne profits to the Plaintiffs at a monthly rate of rent to be established from June 2007 and till handing over vacant possession of the suit premises to the Plaintiffs. There was no order that the first Respondent would hand over vacant possession of the premises. This was just implied. For emphasis I have carefully read the judgment of the court at pages 64 – 65 where I held:
“According to PW2 rent for the property is valued at US$2000 per month. However the court cannot establish the rent through this testimony per se and will refer the matter to the government valuation surveyor to establish the prevailing rent for the suit premises.
In the circumstances the Plaintiffs are specifically awarded damages by way of mesne profits from the date of eviction of the Plaintiffs and with effect from June 2007 until vacant possession is given to the Plaintiffs. Mesne profits shall be assessed at the going rate of rent for the suit property as against the 3rd and 4thDefendants. Furthermore the action of the 4th Defendant to evict the Plaintiffs was declared illegal, null and void by the High Court. The 4th and 3rd Defendants are liable therefore for the mesne profits so awarded.
Furthermore mesne profits at the going rate of rent for the suit property are awarded as against the 2nd and 1st Defendant for one month when the Plaintiff’s were evicted without prior 60 days’ notice under section 7 (1) of the Mortgage Act.”
Furthermore the court granted a declaratory order against the fourth Defendant who is the first Respondent in the following words:
“A declaration issues that the sale and transfer of the Plaintiffs suit property LRV 2839 folio 17 plot 108 Katalima road, Nakawa Kampala by the first, second and third Defendants to the fourth Defendant was fraudulent, illegal, and void ab initio.
An order issues to the Registrar of Titles for cancellation of the fourth Defendant's name from the register book and restoration of the first Plaintiffs name as the lawful registered proprietor thereof.
The third Plaintiff remains indebted to the first Defendant and the first Defendant is entitled to re-advertise the property for sale in a regular and transparent manner under the terms of this decree. The Plaintiffs are given a period of 60 days from the date of this judgment and in lieu of notice within which to redeem the property.”
It is clear from the judgment that the fourth Defendant’s eviction of the Applicant was declared null and void. Secondly the transfer of property to the fourth Defendant who is the first Respondent to this application was also declared null and void ab initio. Thirdly it was ordered that the name of the first Respondent be cancelled from the title and the name of the Applicant restored in the register book and certificate of title. What is even most crucial is the fact that the third and fourth Defendant to the main suit, with the fourth Defendant being the first Respondent in this application was ordered to pay mesne profits from June 2007 until vacant possession is given to the Plaintiffs.
I will start by considering the objection as to the jurisdiction of the court either on the basis of the fact that there is a pending appeal or on the ground that the court is functus officio with regard to the main suit and the contention that this court has no jurisdiction. It is abundantly clear that the court made a declaration that the transfer of the property to the fourth Defendant who is now the first Respondent to this application was a nullity and was fraudulent and illegal.
A suit may be filed for declaratory judgments and declaratory judgments may be issued whether consequential relief is claimed or not under Order 2 rule 9 of the Civil Procedure Rules. Order 2 rule 9 of the Civil Procedure Rules provides that:
“9. Declaratory judgment
No suit shall be open to objection on the ground that a merely declaratory judgment or order is sought by the suit, and the court may make binding declarations of right whether any consequential relief is or could be claimed or not.”
The latter part of the rule that: “the court may make binding declarations of right whether any consequential relief is or could be claimed or not” has been interpreted in Ellis vs. Duke of Bedford (1899) 1 Ch 494 by Lindley MR at pages 514-515. In interpreting a rule in pari materia with the Ugandan Order 2 rule 9 of the CPR he held that:
“Having regard to that rule, it appears to me impossible now to say that one grower could not maintain such an action as this, on behalf himself and all other growers of fruit and vegetables, to assert preferential rights to which he says the whole class of growers are entitled.”
The grower in that case need not seek consequential relief but a declaratory judgment of right and the question is whether where a declaratory judgment of right is issued the Plaintiff can file an action for consequential relief? Pickford LJ in Guaranty Trust Company of New York versus Hannay and Company Limited.  2 KB 536 at page 562 held that the effect of the rule: “is to give general power to make a declaration whether there be a cause of action or not, and at the instance of any party who is interested in the subject matter of the declaration.”
The rule is also discussed in Halsbury’s laws of England 3rd edition volume 22 at paragraph 1610 pages 746 – 747. “...the court is authorised to make binding declarations of right whether any consequential relief is or could be claimed or not …”
As held above the question is whether having made a declaratory order the successful party may file a further action for consequential relief?
The court would not be functus officio because it gave a declaratory order in terms of Order 2 rule 9 of the Civil Procedure rules. The jurisdiction to make binding declaratory orders may extend to making subsequent orders which are consequential to the order. Where there is no claim for consequential relief in a suit for declaratory judgment, an additional action can still be brought in the same court having jurisdiction after obtaining declarations of right. A declaratory order by itself may not be the consequential relief. In the case of Gray vs. Spyer  2 CH 22 the Plaintiff, a landlord sought a declaration that the notice he issued to a tenant to quit was effectual but did not seek an order for vacant possession and the Defendant a tenant who had an agreement for a lease sought by counterclaim a declaration that they had a tenancy from year to year but sought no order for specific performance for executing a lease. The court on an appeal dismissed both prayers for declarations and observed that the action was useless since both parties who were entitled to relief did not ask for vacant possession of the premises or specific performance for executing the lease respectively.
In this case the Applicant’s suit for declaration was not useless. She got an order for cancelation of title.
Bankes LJ in Guaranty Trust Company of New York versus Hannay and Company Limited  2 KB 536 and in his definition of a “declaration of right” at page 571 held that a “Declaration of right in that rule must be read in the sense in which it has always previously borne, that is to say, a declaration of some right which the Plaintiff maintains that he has against the person or persons whom he has made parties to his suit …” At page 474 he held:
“.. the claim for a declaration is not in itself a claim for relief …”
Osborn’s Concise Law Dictionary Eleventh Edition defines a declaratory judgment as follows:
“declaratory judgment. A judgment which conclusively declares the legal relationship of the parties without the appendage of any coercive decree. Such a declaration may be made whether or not a consequential relief is or could be claimed. So a declaratory judgment may be made along with other relief, e.g. damages or injunctions.”
H.W.R WADE in Administrative Law 5th Edition considered the rule in pari materia with Order 2 rule 9 of the Civil Procedure Rules and wrote at page 523 on the remedy of declaratory order that:
“A declaratory judgment by itself merely states some existing legal situation. It requires no one to do anything and to disregard it will not be contempt of court. By enabling a party to discover what his legal position is, it opens the way to the use of other remedies to give effect to it, if that should be necessary.”
I have considered the plaint of the Applicant in HCCS NO. 741 OF 2006 (Land Division) and later referenced as HCCS NO 106 of 2007 (Commercial Division). The plaint did not contain an averment of a prayer for an eviction order but was a suit against DFCU and Alex Michael Agaba. It sought several declaratory orders. Thereafter suits were consolidated. In the amended plaint which includes Mohammed Kalisa who is the 1st Respondent, the Plaint inter alia under paragraph 4 avers that:
“The Plaintiffs cause of action against the Defendants jointly and severally is for a declaration and order that the sale and subsequent transfer of the 1st Plaintiffs land/property/house comprised in LRV 2839 Folio 17 Plot 108 Katalina Road, Naguru in Kampala by the 1st, 2nd and 3rd Defendants to the 4th Defendant was effected fraudulently and thus null and void, an order to the Registrar of Titles to cancel the registration of the transfer in the register book of the suit land to the 4th Defendant and to restore the 1st Plaintiff as the lawfully registered proprietor thereof; ...”
The prayers for declaration are repeated in paragraph 11 of the Plaint. In the judgment in the main suit prayers (a) and (b) in the Plaint were granted as pleaded and are as quoted in the judgment above. There was therefore a suit for declaratory orders in relation to the right of the Applicant against the first Respondent concerning right of registration and proprietorship to the suit property. The only consequential relief sought in relation to the declaration of right is the cancellation of the 1st Respondent’s name in terms of section 176 of the Registration of Titles Act and restoration of the Applicant’s name. There was no prayer for the consequential relief of eviction of the 4th Defendant from the suit premises in the Plaint. The judgment gives the fact that the 1st Respondent who was the 4th Defendant in the main suit gained possession of the suit premises after the Applicant was evicted from her premises. The eviction of the Applicant was the subject of earlier judicial proceedings and the judgment of the court on this issue is at page 53 where I observed as follows:
“The realisation of the security in the mortgage proposition flopped. What is material is that the first Defendant appointed another receiver/manager who sold the property by private treaty. On the other hand Mr Moses Kirunda, the second receiver/manager made it clear that he sold the property and obtained a warrant for vacant possession of the property whereupon the first and second Plaintiffs were evicted. The warrant for vacant possession was subsequently set aside as being a nullity for having been issued by the registrar without jurisdiction. (Emphasis added)
The eviction of the Applicant had been declared a nullity and the warrant thereof was set aside by the High Court and this fact was mentioned in the judgment. It is indeed strange that the setting aside of the warrant for vacant possession did not result in the Applicant gaining possession of the suit premises. That notwithstanding the Plaintiffs sought the relevant declaratory orders and not consequential order for eviction of the 4th Defendant from the suit property in the main suit.
For the above reasons the suit, the judgment and decree dealt with the relevant declaratory orders and neither a prayer for the consequential relief of eviction was pleaded nor granted. The prayers to declare the transaction and transfer of the suit property to the 4th Defendant a nullity is within the ambit of Order 2 rule 9 of the Civil Procedure Rules and a declaration of right there under may give rise to a separate action for consequential relief if not claimed in the same suit. Controversies in a suit arise from the pleadings in terms of Order 15 rule 1 of the Civil Procedure Rules. The judgment of the court except for any other remedy pleaded will be confined to the issues arising from the pleadings. By no stretch of imagination can the issue of vacant possession of the suit property be res judicata.
For that reason I agree with the Applicant’s Counsel that the issue of eviction cannot be the subject of an appeal as the High Court never exercised jurisdiction to grant it. The Plaintiff did not pray for it.
The real issue is one of meeting the ends of justice. The court decree and judgment if they are to be enforced as they are, have in law returned the property to the Applicant. The 1st Respondent has not lawful right of possession. However no order was made to evict him. On the order hand there was an order that if the Applicant and the second Plaintiff do not pay the outstanding amounts on the mortgage loan the property would be sold by the second Respondent. The property can only be sold on the footing that it belongs solely to the Applicant subject to the mortgagee’s interests. The mortgagee is the second Respondent and has not filed any affidavit opposing the application for eviction of the 1st Respondent.
In view of the fact that the Applicant got declaratory orders of right and the relief of cancellation, she cannot yet enjoy possession unless the 1st Respondent voluntarily vacates the premises. The declaration of right per se is not an order of eviction or an order for vacant possession of the premises as against the 1st Respondent. The issue of vacant possession is not the subject of a judgment and was not appealed neither could it be appealed. It is true that there is a dispute as to whether the orders of the High Court should be set aside. These include the declaratory orders of right in issue and the cancellation of title. The title/name of the 1st Respondent has already been cancelled from the register and the Applicant’s name restored on the register. By the order of cancellation being executed, the law only recognises the Applicant as the registered owner in terms of sections 59 and 176 of the Registration of Titles Act Cap 230. The right to possession was determined in the judgment. The cancellation order was enforced.
In this application the Applicant is exercising the legal rights of a proprietor against the 1st Respondent whose title has been cancelled. These legal rights can be enforced at any time. Starting with rights recognised under section 59 of the RTA, it provides that:
“59. Certificate to be conclusive evidence of title.
No certificate of title issued upon an application to bring land under this Act shall be impeached or defeasible by reason or on account of any informality or irregularity in the application or in the proceedings previous to the registration of the certificate, and every certificate of title issued under this Act shall be received in all courts as evidence of the particulars set forth in the certificate and of the entry of the certificate in the Register Book, and shall be conclusive evidence that the person named in the certificate as the proprietor of or having any estate or interest in or power to appoint or dispose of the land described in the certificate is seized or possessed of that estate or interest or has that power.
The proprietor whose name appears on the title is seized or possessed of the estate or interest and powers of a proprietor. Secondly mesne profits were awarded as against the 1st Respondent for illegal occupation till handing over vacant possession. The cause of action of trespass is a continuing tort and gives rise to fresh causes of action each time. This was considered by the Supreme Court in Eridad Otabong versus Attorney General Civil Appeal Number 6 of 1990 and Oder JSC who delivered the lead Judgment approved a passage from Clark and Lind Sell on Tort 13th edition paragraph 612 that:
"Where there is a continuing nuisance or a continuing trespass, every fresh continuance is a fresh cause of action and therefore an injured party who sues after the cessation of the wrong may recover for such portions of it as lie within the period limited."
Oder JSC held regarding the effect of limitation on unlawful detention or false imprisonment that:
"Regarding the effect of limitation on unlawful detention or false imprisonment ... is that such a wrong is necessarily a continuing tort so that the cause of action accrues continuously throughout its duration."
Unlawful occupation was established in the judgment. A declaratory order was issued that determined the legal state of affairs between the Applicant and the 1st Respondent thereby establishing that the first Respondent’s possession is unlawful.
In the premises preliminary objections of the 1st Respondent’s Counsel on the ground that the court is functus officio, or that it cannot exercise original jurisdiction concurrently with the Court of Appeal or on the ground of there being an order of stay of execution are overruled. I agree with what the Hon Judge of the Execution and Bailiffs Division had to say about the matter as contained in the affidavit of the Applicant that the Execution Division cannot grant a warrant of eviction and the issue of whether an eviction order should be issued has to be determined by the court hearing the matter as a fresh matter. Finally the argument that the matter is pending appeal has no merit as execution by cancellation of title was completed.
In the premises the only issue is whether an action for consequential relief pursuant to a declaratory order in a concluded suit should be filed in a subsequent fresh suit or may be commenced as in the current application. This is purely a procedural question of whether the application was properly commended for seeking a consequential order of eviction by notice of motion which is interlocutory instead of by Plaint. The Applicant never sought the relief of vacant possession which is a cause of action that accrues to a land lord from time to time where there is someone in illegal occupation of his or her premises.
In the premises the application was wrongly commenced as an interlocutory application and ought to have been filed instead as a fresh action for vacant possession of premises. The 1st Respondent is in illegal occupation of the suit premises on the basis of the law and two judicial pronouncements. He is an illegal occupant because his eviction of the Applicant from the premises was set aside. Secondly there is a declaration that his possession by virtue of a sale and registration is illegal, null and void. Lastly his title was cancelled.
Should the wrong commencement of the application by notice of motion instead of a separate action by plaint for consequential relief invalidate the proceedings? Both parties have filed evidence and made submissions for and against the order.
In the case of Boyes v Gathure  1 EA 385, the Court of Appeal sitting in Nairobi held that wrong procedure does not invalid proceedings so long as it does not go to jurisdiction and has not occasioned a miscarriage of justice. Spry JA held that:
“So far as this appeal is concerned, however, the position is that the learned judge made an order which he certainly had jurisdiction to make on a proper application, and I do not think that the fact that the application was in an incorrect form meant that he lacked jurisdiction. If, as I think, he had jurisdiction, the error of procedure is not a ground for interfering with his decision, since no prejudice whatever was caused to the appellant.”
In that suit there was an objection to the effect that an application had been wrongly commenced by way of chamber summons as a Miscellaneous Civil Suit when there was no main suit. The form of the commencement was wrong but the objection to the form on appeal was not allowed because no prejudice had been occasioned to the appellant.
Last but not least the High Court has inherent powers under section 33 of the Judicature Act to avoid a multiplicity of proceedings. Section 33 of the Judicature Act provides as follows:
“33. General provisions as to remedies.
The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided. “
In order to avoid yet a fresh suit being instituted by plaint, the Applicant has already moved the court and both parties have been heard. No prejudice has been occasioned to the parties and the Court has jurisdiction in the matter. Secondly as far as the prayer for stay of execution in the High Court or in the Court of Appeal is concerned, the issue can be dealt with by the court executing a specific order. For the avoidance of doubt because the order though in a fresh action is consequential to the previous suit, the issue of whether an order in this suit should be stayed shall be dealt with by the Judge in charge of executing decrees of the High Court.
In the premises an order issues compelling the 1st Respondent to hand over vacant possession of the suit premises comprised in LRV 2839 folio 17 Plot 108 Katalima Road, Nakawa, Kampala to the Applicant who is the registered proprietor thereof. This suit succeeds with costs to the Applicant.
Ruling delivered in open court on the 27th of November 2015
Christopher Madrama Izama
Ruling delivered in the presence of:
Alfred Okello Oryem for the Applicant
Applicant not in court
Namuswe Veronica holding brief for Joseph Kyazze for the first Respondent
Joan Nakalika holding brief for Olivia Kyalimpa Matovu for the second Respondent
Respondents are absent.
Charles Okuni: Court Clerk
Christopher Madrama Izama
27th November 2015