Agha Khan Foundation (U) v Nanteza and Another (Miscellaneous Application No. 1974 of 2022) [2023] UGHCLD 53 (9 March 2023)

## THE REPUBLIC OF UGANDA

$\sqrt{ }$

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.1974 OF 2022**

## (Arising from Miscellaneous Cause No. 79 of 2021)

## AGA KHAN FOUNDATION

(UGANDA):::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. NANTEZA ELIZABETH

10 2. COMMISSIONER LAND REGISTRATION:::::::::::::::::::::::::::::::::::: Before: Lady Justice Alexandra Nkonge Rugadya.

#### Ruling.

This application brought by way of motion under the provisions of **Section 33** of the Judicature Act cap.13, Sections 82 & 98 of the Civil Procedure Act cap. 71, and Order 46 rules 1, 2, 4, & 8 of the Civil Procedure Rules SI 71 **seeking orders that;**

1. That this court's ruling in HCMC No.0079 of 2021, Nanteza Elizabeth vs Commissioner Land Registration of 16<sup>th</sup> August 2021, compelling the Commissioner Land Registration to register the Applicant on the certificate of title of land comprised in Kyadondo Block 258 Plot 1 land at Bulinguge Island, and to also issue a special certificate of title in respect of the same land be reviewed and set aside;

2. Costs of the application be provided for.

Orloss

$\mathsf{S}$

# Ground.s of the a,pollcatlon,

The grounds in support of the application are contained in the affidavit in support thereof deponed by Ms. Meralgn Mungereza" the applicant company's country manager. She stated that the applicant is the registered proprietor of

5 land comprised h LRV 3483 Eollo 72 Kgadondo Block 258 plot 7 (hereinajler referred to as the 'suit land')having been gifted the same by a gift deed dated 2l"t March 2005, by a one Mr. Amlrall Karmall, who upon gifting the said land to the applicant, retained the reversionary interest in the suit land, and that in the said gift deed, Mr. Amirali Karmali declared that in the event that the government ofUganda permitted non-citizens to own freehold property, the said reversionar5z interest should be conveyed to the applicant. 10

That while the applicant received a notice from the Registrar of titles inviting her for a public hearing to show cause why her certilicate of title in respect of the suit land should not be cancelled, upon receiving the same, she has since discovered that this court delivered a ruling on 16th August 2O2l in HCMC No.79 of 2O21 which affects the applicant's interest.

Further, that she was not party to the application under which the ruling of this court affected his non-derogable right to a fair hearing having been in possession of the suit land as a lessee since she was gifted the land, thus making him an aggrieved party.

This to her was a clear error apparent on the face of the record, as she could not reasonably disclose any evidence showing that she was the property interest holder of the lease over the suit property. Thus the orders arising from the said suit should not be binding on her.

That the same shows that there is sufficient reason for this court to review, and set aside its ruling and orders in Miscellaneous Cause No.79 oJ 2027. 25

The 1st respondent however opposed the application through her aflidavit in reply wherein she stated inter alia that she is the surviving administratrix and

u"br6

beneficiary of the estate of the late James Hannington Bukulu Kiwanuka Mukasa.

Prior to his death, he was the registered proprietor of private mailo land formerly comprised in Mallo Reglster Volume 737 Follo 70 Kgadondo which on 24th October 1967 was brought under the new register and is now described as Kgad.ondo Block 258 plot 7 land at Bulinguge measurlng approxinatelg a7.91OO hectares.

That before she commenced the process of having her name noted on the certificate of title in 2019, the respondent through her lawful attorney Musisi Nicholas made a search in the 2"d respondent's office which confirmed that the suit land was still registered in the late James Hannington Bukulu Kiwanuka Mukasa who passed on in 1985, and that the land had remained un administered urrtil 22nd February 2022 wben it was registered in the 1st respondent's name in her capacity as the administratrix of the deceased's estate. 10

That the search report clearly indicates that the suit land belongs to the l"t respondent's late father without any incumbrance in the form of a lease and that when the respondent through \*I/s AF Mpanga Aduocates conducted arl investigation to establish the proprietorship ofthe said land, a survey conducted by M/s Suneg Tech Solutlons Ltd revealed, and confirmed that the suit land forms part of the estate of the late James Hannington Bukulu Kiwanuka Mukasa. 15 20

That there is no way that Mr. Amirali Karmali could have given a lease to the applicant on land that he did not own and it was not therefore necessary to include the applicant as a party to the application for judicial review seeking orders of mandamus since the purported lease was not reflected on the original certificate of title.

Since the alleged lease is not reflected on the original certihcate of title, the purported possession of the suit land by the applicant constitutes trespass.

ur\"b <sup>3</sup>

Furthermore, the order sought to be set aside in this application has been implemented and it would be an exercise in futility to it set aside.

The respondent is now the registered proprietor whose certificate of title cannot be impeached based on affidavit evidence and accordingly, this application is 5 misconceived, and ought to be dismissed because the respondent only dealt with the mailo interest in the suit land which the applicant has no interest in.

## Conslderatlon of the lssaes.'

I have carefully perused the pleadings and submissions from each side and taken all points raised into consideration.

- 10 This being an application for review the following are the grounds under which it can be considered, as enunciated in the case of F. X, Mubuuke Vs UEB Hlgh Court Mlsc. Applicatlon No.98 oJ 2OO5: - a. That there ls a m;lstake or manlfest m;lstake o" error appq,rent on the Jace o;f the record; - 15 - b. That there is dlscouery oJ neut and irnportant evidence uhlch after qxercise oJ due d.iligence tllo,s not within the applicant's knouledge or could not be produced bg him or her at the tlme uthen the decree uas passed or the order madq

## 20

# c. That ang other sulficient rea.son exists.

For an application for review to succeed, the party applying for it must show that he/she suffered a legal grievance and that the decision pronounced against him/her by court has wrongfully deprived him/her of something or wrongfully affected his title to something. (See: Busoga Grotoers Co-operatlue Unlon Ltd as Nsamba & Sons LTD HC (Commerclal Court) Misc. appticatlon No. 723 oJ 2ooo).

4 U

Although the applicant's claim for mailo ownership is a subject of contention, the applicant is a lessee on the suit land. To that extent therefore he is an aggrieved party.

The issue of fraud however as implied against the l"t respondent by the applicant is a grave matter that vitiates all transactions. A party who wishes to have another's title impeached must not only plead fraud but must also be able to satisfy court, to a standard of proof which is higher than in any ordinary suit that fraud was committed.

It is therefore the hnding of this court that the issues raised by the applicant cannot be dea-lt with in an application of this nature which is based on affidavit evidence. 10

These are matters of evidence which need proofin court by the calling of evidence as deponed to by the parties in their respective affidavits. There are issues to do with illegalities in obtaining the title, which a blanket notice of motion supported by affidavit evidence cannot sufficiently prove.

It is now settled law that where a matter is contentious, and involves <sup>a</sup> considerable need to call oral evidence to prove further the facts in controversy, then the procedure by afhdavit evidence either by originating summons or other motions as in this case becomes improper. (See: Hon. J. No,m;undl ln

Zaluango Ellvason and No,kalemr: lllarlam a. Dorothg Waluslmbi and. Henry Bfllum'uko Or. Sum,,. S/2O 13). 20

The matters raised in this application c€rn only flnally resolved by way of an ordinary suit.

Sectton 33 of the Judlcadtre Act, Cap.73 gives this court the power to grant remedies, legal or equitable so that all matters in controversy are completely and hnaily resolved. 25

In the circumstances, an order issues prohibiting any further dealing/ transactions in respect of the suit land until all the issues arising herein

1trJd4

are determined in the suit, to be filed within a period of 30 days from the date of delivering this ruling.

Each party to meet its own costs.

I so order.

$\cdot\,$

$\overline{a}$

...................................... $\mathsf{S}$ **.................**

Alexandra Nkonge Rugadya

Judge

9<sup>th</sup> March, 2023

Delivered by email<br> Onlong<br> $\frac{1}{9}$ 3/2023