UGHCEBD 3 (September 1 2020); before Hon. Lady Justice Henrietta Wolayo
Gulooba sued Patrick Sentongo for trespass upon a road reserve and encroachment on his property comprised in Kyadondo Block 23 Plot 777 at Lukuli. The court, in that case, determined that Patrick Sentongo had encroached on the road reserve and ordered him to compensate Golooba for the trespass that had shifted the road to pass in Golooba’s land. On appeal to the High Court by Golooba, the court allowed the appeal and ordered Sentongoto to remove the offending structure from the road reserve and to restore the affected land. There was an attempt by KCCA to restore the land, but this aborted after the directorate of Physical Planning by letter to the parties ceased any further action with respect to the road reserve. In the meantime, Dr Sentumbwe commenced another suit against Golooba and KCCA, but it was dismissed for want of prosecution. In this application, Dr Sentumbwe claims he purchased land comprised in Kyadondo Block 253 plot 1544 and owns the wall fence which the Golooba seeks to demolish. The Applicant avers that he bought the land from Patrick Sentongo.
Court held that, for a reason, the decree contemplated no attachment; order 22 rule 55 is not the right procedure to seek relief. Regarding applicability of order 22 rules 86; where the court is satisfied that resistance or obstruction was occasioned by any person (other than the judgment debtor) claiming in good faith to be in possession of the property on his or her account or on account of someone other than the judgment debtor, the court shall make such order as it deems fit.
The judge noted that, while the Applicant could have moved court under rule 87, the catch is he is disqualified by rule 88 which excludes a person to whom the property was transferred during the pendency of litigation. In other words, his resistance to execution is not in good faith because he is a transferee of title. Although a copy of the title deed tendered in court is illegible in as far as the date when the Kyadondo Block 253 Plot 1544 was transferred to him by Sentongo who was litigant in CA NO. 47 of 2011 and CS No. 237 of 2008, his advocate submitted that the transfer was before the decree in appeal.
The Applicant is in the shoes of Patrick Sentongo who sold him the property during the pendency of a suit and the order bounds him in CA 47 of 2011. In Chothy Theyyathen v John Thomas and others (January 28, 1997) Kerali High Court, India1, the court held that where the decree restrains a judgment debtor from doing something on his own land to the detriment of the decree-holder, the decree is not just personal but binds the assignees or representative of the judgment debtor and the decree is enforced in rem. In that case, the court reasoned that to require the decree-holder to commence litigation afresh against an assignee (as in this case Dr Sentumbwe the transferee of Plot 1544), would be to infer the doctrine that litigation must come to an end. Court agreed with this decision even if it is of persuasive authority only, added that the doctrine of res judicata applies with full force in this case which was litigated conclusively as regards the removal of the wall fence and the decree bounds Dr Sentumbwe in CA 47 of 2011. For him to bring an objector application is a form of obstruction to execution and can potentially be construed as contempt of court or obstruction of justice.
For the reasons that the decree bounds the Applicant in CA 47 of 2011; that the application was wrongly brought under order 22 rule 55; that the issue of whether the wall fence was an encroachment on the decree holder’s land ]was conclusively determined and therefore it is ]now resjudicata; the preliminary objections are upheld, and the application is struck off the court record. The interim stay of execution granted by the registrar is at this moment vacated. The Applicant shall pay the Respondent costs of the application assessed at 3,000,000/