Alibhai and Another v Nanteza and Another (Miscellaneous Application No. 2103 of 2022) [2023] UGHCLD 54 (9 March 2023)

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.2103 OF 2022**

(Arising out of Miscellaneous Cause No. 79 of 2021)

### 1. SALIM RAWJI HAIDERALI ALIBHAI

2. ALYKHAN KARMALI (Executors of the Estate & will of the Late AMIRALI **KARMALI::::::::::::::::::::::::::::::::::::**

$\mathsf{S}$

### **VERSUS**

# 1. NANTEZA ELIZABETH (Surviving Administrator of the estate of the Late HANNINGTON BUKULU KIWANUKA

MUKASA) 15

application.

2. COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

Before: Lady Justice Alexandra Nkonge Rugadya.

### Ruling.

20 The applicants by motion brought this application under **Article 28 of the** Constitution of the Republic of Uganda, Sections 82 & 98 of the Civil Procedure Act cap. 71, and Order 46 rules 1 (1) (b) & 8 of the Civil **Procedure Rules SI 71-1** seeking orders that the ruling and orders of this court in **Miscellaneous Cause No. 79 of 2021** dated 13<sup>th</sup> September 2021 be reviewed, and set aside, and that the applicant be granted costs of this 25

(Julio of

# Ground.s of the appllcation:

The grounds upon which this application is premised are contained in the affidavit in support of the 2"d applicant, Mr. Alykhan Karmali, son of the late Amirali Karmali. That the applicants are the executors of the deceased's will.

5 That the land comprised in Kgadondo Block 258 plot 7 (hereinafter referred to as the suit land) is one of the many lands acquired by the deceased and that the same was litigated over in Mlscellaneous Ccuse No.79 of 2O21by the respondents, causing the de-registration of the late Amirali Karmali, without the knowledge of any of his beneficiaries, or the executors.l have carefully read the pleadings and submissions filed by either side in this application for review of the orders made by this court. 10

# Conslderation of the issues:

The facts as set out by the applicants and the 1st respondent in her affidavit in reply suggest that there are two competing interests over the same piece of

- land. The 1st applicant in brief, claims that although their late father, the late Armirali Karmali had obtained a gg-year lease over the property from the late James Hannington Bukulu Kiwanuka Mukasa, he later purchased the mailo interest in the suit land, merged the two, and later got registered on the certificate of title as the registered proprietor of the suit land. The applicants 15 - adduced in evidence a copy of the certificate of title indicating that the late Armirali Karmali was registered as the owner of the land sometime in 2OO2. 20

In reply it is claimed by the 1st respondent that the suit land belonged to the late James Hannington Bukulu Kiwanuka Mukasa who passed on in 1985, leaving the land un-administered until 22nd February 2022 winen the respondent was registered as the proprietor thereof in her capacity as the administratrix of the deceased for the 1"t time.

Her point was that as the registered proprietor of the suit land her title cannot be impeached merely based on affidavit evidence. ( Ref: Adam as Madaga Htgh Court Mlscellaneors Appllcatlon No74 oJ 2073. Her counsel also referred this court to section 176 of the Reglstratlon of ?ltles Act Cap.23O, which protects a registered proprietor against ejectment.

I\ VY6 <sup>2</sup> \N\^/

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 llEB Htgh Court Misc. Appllcatlon No.98 of 2OO5:

a. That there is a mlstake or maniJest mistake or error apparent on the face of the record;

b. That there is d.lscovery of neut and. itnportant evldence uhich afr,er exercise of due d.iligence laa,s not u.tithln the applicant's knouledge or could not be produced bg htm or her at the tlme uthen the decree was passed or the order made;

# c That ang other sufficlent reason extsts.

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 Grouers Cooperatlae Unlon Ltd rrs Nsombc & Sons L?D IfC (Commercial Court) Mlsc. appllcatlon No. 723 of2OOO). 15

It is not in dispute that the applicants claim a legal interest in the suit land on behalf of the estate of the late Armirali Karmali which is by necessary implication affected by the orders of this court tn Mlscellaneous Cause No.79 oJ 2O2I, by which the 1st respondent was registered on the title. 20

It is also not in issue that the applicants were not party to the said application but obviously had interest in the outcome of the decision thereunder. The decision resulted in raising issues concerning the validity of their ownership of the suit land.

It was the 1"t respondent's uncontroverted affidavit evidence that the suit land which belonged to her father, the late James Hannington Bukulu Kiwanuka Mukasa who died sometime in 1985 remained un-administered until February 2022 when she was first registered on the certificate of title.

U"bd

According to the copy of the grant of letters of administration attached to the 1"t respondent's affidavit in reply marked Annexure'A', tlne said grant was obtained on 11\*' February 1986. The certificate of title adduced by the applicants indicates that joint administrators of the estate of the late James 5 Hannington Bukulu Kiwanuka Mukasa were noted on the certificate of title in 2OO2.

The l"t respondent being the sole surviving administrator therefore denied any such registration, and sale or transfer of the suit property to the late Armirali Karmali.

- Fraud as alluded to by the applicants is grave matter and requires proof beyond that expected in an ordinary civil suit. As correctly pointed out by counsel for the 1st respondent, an order which sets out to impeach a certificate of title can only be granted by court after fraud has been proved in an ordinary suit, but not through an application of this nature. 10 - 15 The application thus raises several triable issues touching on the ownership of the suit land, given the fact that there are two subsisting certificates of title in respect of the suit land claimed by two different interests.

This will require this court to investigate the background and circumstances that led to the issuance of each title, as well as subject to test all documentary and other evidence relied on by each side in a formal trial, rather than reliance of affidavit evidence.

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

In the circumstances, an order issues prohibiting any further dealing/ transactions in respect of the suit land until all the issues arising herein are determined in the suit, to be filed within a period of 30 days from the date of delivering this ruling. 25

This application is hereby dismissed. Each party to meet its own costs.

uP'5 <sup>4</sup>

I so order.

Alexandra Nkonge Rugadya

Judge $\mathsf{S}$

$\overline{ }$

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