The court has thrown out a case in which Makerere University sought orders to evict city pastor Daniel Walugembe from land in Katanga near Wandegeya in Kampala.
Makerere University had filed a case against Pastor Walugembe and Abdu Ssekajja, seeking a court declaration that there is no kibanja interest on the land located in Katanga.
However, Justice Samuel Emokor of the Lands Division of the High Court ruled that Makerere University was abusing the court process by filing two cases against Pastor Walugembe and Ssekajja—one in his court and another in the Court of Appeal—where it is challenging Justice Owiny Dollo’s landmark judgment, which confirmed that tenants in Katanga Valley are bona fide occupants.
“The respondent, in my considered opinion, appears to be fishing on two fronts—before the Court of Appeal and before this Court—with the hope of succeeding in at least one of them. This is because the orders obtained in favour of the respondent in either of the two courts would have the same net effect of granting the respondent possession of the suit property,” the judge stated.
The judge further ordered Makerere University to pay costs of the suit to Walugembe and Ssekajja, having found that the matter before him amounted to an abuse of court process and was res judicata.
He noted that it would be absurd for the court to reach a different finding regarding the status of Walugembe and Ssekajja on the same land, while the Court of Appeal could arrive at a conflicting decision regarding their predecessors.
He added that the court is bound to avoid scenarios that could lead to contradictory orders, which would bring the judiciary into disrepute.
“It would appear to this Court that any attempt to inquire into the nature and acquisition of proprietary rights of the applicants over the suit property would ultimately lead this Court into investigating the status of their predecessors, who have already been declared by this Court to be bona fide occupants of the suit property together with their licensees—a finding which the respondent does not agree with and is challenging on appeal,” he stated.
Brian Kupper Rubihayo, the lawyer representing Walugembe, welcomed the decision, saying his client had won the case and could therefore not be evicted.
“We filed an application and asked the court to dismiss the Makerere University case citing abuse of court process, meaning that Makerere was pursuing two cases at the same time—the case which has just been dismissed and the appeal they filed in the Court of Appeal,” he said.
He added that the issues in the case had already been determined by the High Court in a 2015 decision by Justice Owiny Dollo, and the court agreed that the question of whether there exists a kibanja on the land in Katanga Valley had already been settled; therefore, it is res judicata.
He further stated that Makerere’s case before the Lands Division amounted to an abuse of court process because there was a pending appeal filed earlier in the Court of Appeal.
