By Hannah Marion Namukasa
High Court judge has dismissed a case in which Makerere University sought orders to evict city pastor Daniel Walugembe from disputed land in Katanga, near Wandegeya in Kampala.
Makerere University had sued Pastor Walugembe and Abdu Ssekajja, seeking a declaration that no kibanja interest existed on the land in question.
However, Justice Samuel Emokor of the Land Division of the High Court ruled that the university had abused court process by simultaneously pursuing litigation in both the High Court and the Court of Appeal over the same matter.
The judge noted that Makerere is currently challenging a landmark 2015 judgment by then-Justice Bart Katureebe Owiny-Dollo, which recognized residents and tenants on Katanga Valley land as 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 any of the two courts would have the same net effect of granting the Respondent possession of the suit property,” Justice Emokor stated.
The judge further ordered Makerere University to pay the legal costs incurred by Walugembe and Ssekajja after finding that the suit was both an abuse of court process and res judicata, meaning the issues raised had already been determined by a competent court.
Justice Emokor observed that it would be contradictory for the High Court to reach one conclusion regarding the status of Walugembe and Ssekajja while the Court of Appeal could potentially reach a different conclusion concerning their predecessors on the same land.
He emphasized that courts must avoid issuing conflicting decisions that could undermine public confidence in the judiciary.
“It would appear to this Court that any attempt to inquire into the nature and acquisition of proprietary rights of the Applicants on the suit property would ultimately lead this Court into investigating the status of the Applicants’ predecessors, who have already been declared by this Court to be bona fide occupants of the suit property together with their licensees. That finding is currently being challenged by the Respondent on appeal,” the judge ruled.
Brian Kupper Rubihayo, counsel for Walugembe, welcomed the decision, saying it confirms that his client cannot be evicted from the land.
“We filed an application asking the court to dismiss Makerere University’s case on grounds of abuse of court process because the university was pursuing two cases simultaneously—the suit that has now been dismissed and the appeal pending before the Court of Appeal,” Rubihayo said.
He added that the issues raised in the case had already been conclusively determined in the 2015 High Court judgment delivered by Justice Owiny-Dollo.
“The court agreed with us that the question of whether a kibanja interest exists on land in Katanga Valley had already been determined. Therefore, the matter is res judicata,” he said.
Rubihayo further argued that Makerere’s case before the Land Division amounted to an abuse of court process because a related appeal had already been filed and was pending before the Court of Appeal.
