The High Court has dismissed with costs a case filed by Makerere University seeking to evict city pastor Daniel Walugembe from disputed land in Katanga Valley, ruling that the institution was improperly pursuing parallel litigation over matters already before the Court of Appeal.
In a decision delivered by Justice Samuel Emokor of the Land Division on June 4, the court struck out the university’s 2021 suit after finding that the issues raised had substantially been determined in an earlier case and were already the subject of a pending appeal.
“The respondent (Makerere University), 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,” Justice Emokor ruled.
The judge added that any orders obtained by Makerere University in either court would have the same effect of granting the university possession of the disputed property, creating what he described as an absurd situation.
‘This is because the orders obtained in favour of the respondent (Makerere University) in any of the two courts would have the same net effect of granting the respondent possession of the suit property. I would therefore not risk overplaying my hand in this matter. In the result, the instant application succeeds with orders issuing that HCCS No. 1051 of 2021 is res judicata and an abuse of the court process,’ the judge held.
The ruling followed an application filed by Pastor Daniel Walugembe and Mr Abdu Ssekajja seeking dismissal of the suit on grounds that it constituted an abuse of court process.
Through Mwesigwa Rukutana and Company Advocates, the applicants argued that the matters raised in the 2021 case had already been determined by the High Court in a judgment delivered in July 2015 and were currently pending before the Court of Appeal.
Justice Emokor agreed, finding that Makerere University had failed to prove that the land at the centre of the 2021 case was different from the property litigated in the earlier proceedings.
“The respondent has not been able to present credible evidence that the suit property in Case No. 857 of 2000 is different from the suit property being litigated in Case No. 1051 of 2021,” the judge held.
“What is clear to this court is that the suit land litigated in Case No. 857 of 2000 is the same land referred to in the other cases.”
Makerere University had sought declarations that no kibanja interest existed on approximately 5.13 acres of land in Katanga Valley and that Pastor Walugembe, Mr Ssekajja and their agents had trespassed on and illegally developed part of the university’s freehold land from around 2019.
The dispute traces its roots to a long-running battle over ownership and occupation of land in Katanga Valley near Wandegeya.
In 2015, the High Court ruled that four family members and their licensees occupying the land were bona fide occupants entitled to remain in possession under the Land Act.
The beneficiaries included Jonathan Yosamu Masembe, Bulasio Buyisi, George Kalimu, and Samalie Nambogga, who had challenged Makerere University and the Commissioner for Land Registration over the cancellation of their land titles and ownership claims.
In that judgment, then High Court Land Division Judge Alphonse Owiny-Dollo held that the occupants qualified as bona fide occupants under the Land Act, which protects persons who have occupied land for at least 12 years without challenge.
Although the court recognised Makerere University as the registered proprietor of the land, it also affirmed the occupants’ rights to remain in possession.
Court records indicate that a central issue in Makerere University’s pending appeal is the finding that the occupants and their licensees, including Pastor Walugembe, are bona fide occupants legally entitled to continue occupying the land.
Speaking after the ruling, Mr Brian Kupper Rubihayo, counsel for Pastor Walugembe, welcomed the court’s decision.
“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,” Mr Rubihayo said.
“The court agreed with us that the issues concerning the existence of kibanja interests on the Katanga land had already been determined in the earlier case.”
He argued that the university’s decision to pursue fresh proceedings while an appeal was pending amounted to an abuse of court process.
“The position now is that our client has successfully defended the suit and cannot be evicted on the basis of the dismissed case,” he said.
Court documents show that the disputed Katanga land comprises three zones covering approximately 37 acres occupied by the families and their licensees.
However, the university maintains that it owns a much larger area of about 277 acres, a claim that has remained contentious in the protracted land dispute.
The latest ruling leaves Makerere University’s appeal before the Court of Appeal as the primary avenue through which it can challenge the 2015 High Court decision.