Court name
High Court of Uganda
Case number
Miscellaneous Application-2004/61
Judgment date
3 March 2004

Nasuka Engineering Service Ltd v Kivumbi (Miscellaneous Application-2004/61) [2004] UGHC 9 (03 March 2004);

Cite this case
[2004] UGHC 9
Short summary:
Civil Procedure

 

 

 

THE REPUBLIC OF UGANDA

 


IN THE HIGH COURT OF UGANDA AT KAMPALA

 
MISC. APPLICATION NO 61, 62 OF 2004

(Arising from HCCS No. 738 of 2003)



NASUKA ENGINEERING SERVICE LTD………PLAINTIFF/RESPONDENT
 

 

 

 

VERSUS

 

SAMUEL KIVUMBI …………………………………………….. DEFENDANT
 
 
 
3rd March, 2004
 

BEFORE: THE HON. MR. JUSTICE R.O. OKUMU WENGI
 

RULING:
 
 
 
This is an objection proceeding brought by the applicant against the Respondents challenging execution of a decree of this court. It is brought under order 19 rules 55, 56,57 and order 48 of the Civil Procedure rules and Section 98 of the Civil Procedure Act. The objector contends that he is not liable to displacement in execution of a court order from a plot of land along the Kampala Gayaza road at Kalerwe where there is a market. The back ground to this case is that the land in question is the scene a of popular city market. There are many vendors and petty traders operating in the market. But at the same time the very land on which the market thrives has been at the centre of a bitter and long drawn contest for ownership. There have been dealings in the land and of course various persons in the market environment have staked their lives on the market and would get caught in the struggle for control of the land. This being the case there have been transactions and various categories of claims over the land. And the same land has given rise to 3 civil suits and this application. Outside of these proceedings there have been some physical displacements of people in the market and construction of permanent and temporary structures. But there have also been incidents of destruction and despoliations giving the picture of severe tension. One of the episodes of displacement arose following a warrant of eviction that sparked off recent discomfort and this application. There is also a pending application by eleven other vendors reacting to these evictions. Indeed three spirited persons claiming to be vendors filed an epistolary complaint with the Chief Justice. They blamed their woes on conflicting decisions or orders of this court in the various cases that have come for adjudication. However this complaint arose due to un awareness on the part of the aggrieved vendors of the fact that the court order made by this court on 5/2/2004 was a result of an agreement by both counsel to maintain the status quo in the pendency of these objections. It did not authorize any eviction or displacement. Understandably though, by their very insecure status, the vendors were reacting to defend their own interests as they are entitled to do. In this context they have invoked the epistolary jurisdiction of the court. This is essentially the inherent power of the court but whose exercise can be invoked by an informal letter of complaint to the court. It is a well established practice as developed in other jurisdictions particularly India. A complainant would write a letter and if it reveals a serious complaint such as the one in this case wherein bloodshed would result, a court can entertain it. In this context the practice offers greater access to the court with little formality and technicality. It can present a paradigm of popular justice if not abused, such as is envisaged in article 126 of the constitution of Uganda. I will however deal with the application as it is hoping that in the result the summering up tension in the market will be put under control. At least in the immediate short run as the long time conflict over this market may take time to wear off.

The legal history of this case is that Mr. Jackson Musoke Kikayira who is the objector, filed a suit in this court namely HCCS No. 119/1999 against one Yahaya Walusimbi and Rosemary Nalubega. The latter previously owned Block 5 plot 548. She subdivided it into two plots 1120 and 1121 she transferred plot 1120 to Yahaya Walusimbi and retained Plot 1121. The plaintiff in that suit 119/99, claimed the land on his own behalf and also on behalf of his siblings and they remained in possession of the land. This family had allowed, to be operated on the land, a market by the apt names of Bivamuntuyo market. It was operated by themselves and others. By a decree of this Court dated 13/5/2003 it was ordered as follows:

(a)     
The plaintiff and his siblings are bona fide occupants of the land comprised in Kampala instrument 201910

(b)     
The original land comprised in Block 5 plot 584 be restored to the register.

(c)     
The subdivision into Plot 1120 and 1121 are hereby cancelled.

(d)     
The first defendant as administrator of the Estate of the late TITO LUKANIKA to satisfy the interest of the estate of the late Erisa Musoke in accordance with the caveat lodged in 1932 in accordance with s. 288 succession Act.

(e)     
Instruments 21006 dated22 December of 1932 KLA 189917 dated 1 August 1997 and 190472 dated 16 September 1997 signifying caveats by Erisa Musoke Levi Luyombya, Namisango and the plaintiff to be restored on the register.
(f)      The second defendant is not a bona – fide purchaser for value of plot 1120 and his title is here by cancelled.

(g)     
The defendants are permanently restrained from disturbing the plaintiff on the occupation of the land unless they follow the law.

(h)     
The defendants will pay costs of the this suit to the plaintiff”

As a result of this decree and as contended by Mr. Ayigihungu the plaintiff became the successful party in that case 119/99. But as it has become known, Yahaya Walusimbi appealed against that decree and also secured a stay of execution. The stay was granted but was conditioned to stop any further development on the land or its alienation by the said Yahaya