Wakilii

Lukwiya and 3 Others v Odiya (Miscellaneous Application 19 of 2023)

High Court · [2024] UGHC 454 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for consequential order of vacant possession and eviction, arising from High Court Civil Appeal No. 053 of 2018
Decision
Application dismissed; Respondent not evicted pending appeal to the Court of Appeal

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed the application for a consequential order of eviction and vacant possession. The court held that where no evidence was led at trial establishing the exact location and boundaries of the land measuring 100 meters x 100 meters, it cannot issue a consequential order for eviction from land of unknown and uncertain location. Granting such an order would require the court to retry the case and introduce fresh evidence, which is impermissible in an application for consequential orders.

Outcome

Application dismissed; Respondent not evicted pending appeal to the Court of Appeal

Facts

Applicants sought a consequential order for vacant possession and eviction of the Respondent from disputed land, arising from High Court Civil Appeal No. 053 of 2018. In that appeal, Justice Stephen Mubiru had declared that save for 100 meters x 100 meters given by the late Peter Oola Labara to the late Odiya Donasiano for a homestead, the Respondent was in unlawful possession of the rest of the suit land. The Applicants argued that the Respondent refused to vacate voluntarily and sought enforcement. The Respondent opposed, contending that no evidence was led as to the exact location of the 100 meters x 100 meters, that he was in possession of the entire suit land, and that he had filed an application for leave to appeal to the Court of Appeal. During the original trial, witnesses gave conflicting evidence on the size of land given to Donasiano Odiya (ranging from 2 acres to 7 acres to 5 gardens), and no evidence specified the exact location or boundaries of the 100 meters x 100 meters mentioned in the appeal judgment.

Issues

  1. Whether the court should grant a consequential order for eviction or vacant possession where the exact location of the land (100 meters x 100 meters) is unknown and uncertain.
  2. Whether affidavits that do not comply with the form of jurat under Rule 9 of the Commissioner for Oaths Rules should be struck off.
  3. Whether applicants require written authority or power of attorney to swear affidavits on behalf of co-applicants.

Orders

  • Application dismissed.
  • Costs awarded to the Respondent.

Rules and key headnotes

Consequential Orders — Scope and Limitations
A consequential order is an order which gives effect or meaning to a judgment or ruling and must be traceable or flowing from the judgment or ruling. It must be incidental and flow directly and naturally from the evidence and reliefs claimed. It cannot be granted where it introduces an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at trial, which does not fall in alignment with the original reliefs claimed, or where it was not in the contemplation of the parties that such relief would be the subject-matter of a formal executory judgment or order.
Consequential Orders — Eviction from Land of Uncertain Location
A court cannot grant a consequential order for eviction or vacant possession from land where the exact location of that land is unknown and uncertain and no evidence was led at trial establishing its boundaries or physical features. To do so would require the court to retry the case and introduce fresh evidence, which is impermissible in an application for consequential orders.
Affidavits — Form of Jurat — Defects and Cure
Defects in the jurat or any irregularity in the form of an affidavit, such as failure to include the name and title of the commissioner, can be cured. A judge has powers to order an undated affidavit to be dated in court or that the affidavit be re-sworn before putting it on record. However, where such defects are not cured and remain at the time of final submissions, the court may strike off non-compliant affidavits.
Affidavits — Authority to Swear on Behalf of Others
There is no legal requirement for one co-applicant to obtain authorization or power of attorney from other co-applicants before swearing an affidavit in support of an application. What is required in affidavits is the knowledge or belief of the deponent, rather than authorisation by a party to the litigation. Competency to swear an affidavit is pegged to ability to depose to the facts of the case, which is circumscribed by the deponent's ability to swear positively to the facts on account of personal knowledge.

Legislation cited (12)

Cases cited (12)

  • Kalibaala Vincent and Others v Attorney General (High Court Miscellaneous Application No. 70 of 2015)
  • Mugerwa John Bosco and Another v Mss Xsabo Power Ltd (High Court Miscellaneous Application No. 273 of 2018)
  • Alice Alaso v Electoral Commission and Another (High Court Election Petition No. 0005 of 2016)
  • Lena Nakalema Binaisa and Others v Mucunguzi Myers (High Court Miscellaneous Application No. 0460 of 2013)
  • Nabukeera v Nansikombi and Others (High Court Miscellaneous Cause No. 42 of 2011)
  • Mpanga John Musisi v Twabaje Edward and 3 Others (High Court Miscellaneous Cause No. 055 of 2020)
  • Col. (Rtd.) Dr. Besigye Kizza v Museveni Yoweri Kaguta and Another (Supreme Court Election Petition No. 1 of 2001)
  • Suggan v Roadmaster Cycles (U) Ltd (2002) EA 25
  • Nabukeera Hussein Hanifa v Kibuule Ronald and Another (High Court Election Petition No. 0017 of 2011)
  • Bankone Limited v Simbamanyo Estates Limited (High Court Miscellaneous Application No. 645 of 2020)
  • Dr. Joseph Kabuubi and Another v Wilson Kashaya and 3 Others (High Court Civil Suit No. 0385 of 2020)
  • Pentecostal Assemblies of God Limited v Joel Mukulu and Another (High Court Miscellaneous Application No. 0290 of 2022)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Lukwiya and 3 Others v Odiya (Miscellaneous Application 19 of 2023) [2024] UGHC 454 (14 May 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.