Court name
High Court of Uganda
Case number
Civil Miscellaneous Application 16 of 2018
Judgment date
7 February 2019

St Joseph's and Society(U) Limited v Kayinamura and Others (Civil Miscellaneous Application 16 of 2018) [2019] UGHC 283 (07 February 2019);

Cite this case
[2019] UGHC 283
Coram
Murangira, J

 

THE REPUBLIC OF UGANDA

IN THE COURT OF UGANDA AT MUBENDE

MISCELLATION APPLICATION NO.16 OF 2018 (Arising from the Land Civil Suit No.13 of 2018)

 

ST.JOSEPH’S AND SOCIETY (U) LIMITED ========== APPLICANT.

 

VERSUS.

 

  1. KAYINAMURA GEOFFREY
  2. MUTUMBA  HASSAN
  3. MAYANJA  MATHIUS
  4. RWABIGONGI  JAMES
  5. TUSABE  SEKAJJA
  6. TWAHA  KIWANUKA
  7. NAKATE FEDERENSI                              =========RESPONDENTS
  8. KAMATTE SULAIMAN
  9. KALYANGO BASHIRI
  10. SILITUMWA  IDDI
  11. KASWAKAMPI SULAMAN
  12. MAZAILO MUYINGO
  13. BAMWEYANA SEMU
  14. SEMPALA ABBAS

 

RULING BY HON. JUSTICE DR.JOSEPH MURANGIRA

Introduction.

Representation

The abovenamed applicant is represented is Gideon Alinaitwe  from M/s Kazungu, Kakooza, Alinaitwe & Co. Advocates, Mityana.

 The above named respondents are represented by Mr. Mulalira     Faiso Umar from M/s. Nabukenya, Mulalira & Co. Advocates & Legal Consultants, Kampala.

The Application

This application is brought to Court by way of Chamber

Summons, under Order 41 rules 1 and 2 of the Civil Procedure Rules, Statutory Instrument No.71-1.

This application is seeking the following orders; that:-

  1.  A temporary injunction does issue restraining the respondents/defendants and/or their agents or anybody claiming title under them from cutting down trees, cultivating, extending their gardens, alienating or selling off any portion thereon, constructing/erecting structures whether permanent or temporary or dealing with the suit land comprised in Singo Block 438 plot 140 Volume 3131 Folio 16 land at Kinoni Estate measuring approximately 254 .855 Hectares in any way until the disposal of the main suit or until further orders of the Court.

 

  1.  The costs of this applicable provided for.

This application is based on the following grounds; that:-

(a)   The applicant is the owner of the suit land comprised in Singo block 438 plot 140 volume 3131 Folio 16 land at Kinoni Estate measuring approximately 254.855 hectares

  1.  At the time of purchase the suit land was vacant and she    surveyed it off the main land
  2.  The applicant later found when the respondents had entered   on the land and commenced cultivation, sub dividing the land, selling of portions and constructing structures thereon.
  3.  The respondents have since continued with their acts of       trespass in total disregard of the applicant’s interests.
  4.  The applicant/plaintiff is likely to suffer irrespirable damages of this application is not granted.
  5.  It is just and equitable that this application be granted.

This application is supported by the affidavit sworn by Rev. Sister Mary Richard Nayiga on 15th February, 2018.

The Respondents’ Affidavit in reply.

The respondents filed in Court an affidavit in reply to this application. The foretasted affidavit in reply has 16 (sixteen) paragraphs with a number of annexures attached to it in opposition to this application.

This affidavit in reply does not bear a date and month it was sworn by the 8th applicant, Kamattee Sulaiman. I have put crossing lines on the space where the date and month should have been put, to avoid the respondents conniving with the court officials and insert therein the said affidavit in reply the date and month it was affirmed in order to defeat justice. I have accordingly put my signature thereunder, confirming that the affidavit in reply does not show the date and month when it was affirmed/sworn by the said deponent.  

In view of all the aforestated, the respondent’s affidavit in reply is incurably defective.  Section 6 of the Oaths Act, Cap 19, Laws of Uganda requires inter alia that the place where an affidavit and date when the affidavit was sworn. In case of J.B Magara –Vs- Katehangira HCMA No.143 of 2000 (unreported) Hon. Mr. Justice PK Mugamba, (as he then was) held that:-

            “The requirement is mandatory and that not only the date but also the place must be stated’’.

Therefore, I make a finding that the said respondents’ affidavit in reply offends Section 6 of the Oaths Act (Supra). It is accordingly struck off. This leaves the entire application unchallenged.

Further, I have considered the application and its supportive affidavit, the submissions by Counsel for both parties, and I come to the considered view that this application ought to succeed.

Conclusion

In sum total and in full consideration of my analysis of the entire application and its affidavit evidence, the submissions by both Counsel for the parties and the authorities cited therein, I hold that this application has merit.

Accordingly, therefore, it was allowed in the terms and orders being sought therein. The costs of this application shall abide the outcome in the main suit.

Dated at Mubende this 7th day of February, 2019.

 

 

…………………………………..

DR. JOSEPH MURANGIRA

JUDGE.