Babu Ismail and 11 Others v Kiswa Mutenda (Civil Suit No. 104 of 2019) [2022] UGHCLD 30 (21 February 2022)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

## CIVIL SUIT NO. 104 OF 2019

# <table> BABU ISMAIL & 11 OTHERS ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# MUSA KISWA MUTENDA ::::::::::::::::::::::::::::::::::::

## RULING ON A PRELIMINARY OBJECTION:

#### Background:.

$\mathsf{S}$

The plaintiffs filed this suit against the defendant, Mr. Musa Kiswa Mutenda, an administrator 10 of the estate of the late Haruna Mbabali, for a declaration that they are bonafide purchasers for value and without notice of any fraud over their plots that had been created after the sub division of land comprised in Kyadondo Block 183, plot 27 (suit land).

They therefore sought a permanent injunction, restraining and prohibiting the defendant from evicting them, sub dividing, selling, cultivating or in any way dealing with the suit land; and a 15 declaration that they are bonafide purchasers for value without notice, for the said plots of land which had been cancelled by court.

At the start of the hearing the defendant raised two preliminary objections. That the suit did not disclose a cause of action against him and also questioned the plaintiffs' claim as bonafide purchasers for value without notice which in his view by itself did not originate/constitute a

20 cause of action.

Furthermore, that he commenced the process of recovering the suit land, part of the estate of the late Haruna Mbabali Mutenda, which had been disposed of to third parties including the plaintiffs through one Nyombi Hamidu. Nyombi had illegally acquired parallel letters of administration to the deceased estate.

He instituted criminal and civil proceedings against the said Nyombi and accomplices, Nangozi which were revoked by court. Orders were subsequently made for the cancellation of titles and reinstatement of the late Haruna Mbabali as the registered proprietor of the suit land.

Juloag

$\mathbf{1}$

Theplarntiffswhowereregisteredproprietorsoftheirrespectiveplotsoflandhadmade developments on the suit land, which included their residences'

It is the defendant,s claim that in good faith the Plaintiffs had been offered to buy themselves off and/or regularize their occupancy. But that instead they rrled this suit claiming lo be bonafide

5 purchasers of value witiout notice.

It was their claim also that the defendant had conveniently concealed from the court in clull SuttII5o!2OTOthortKgadondoBlockTS3,plot2Twasnon-existentThathedidnot disclose the fact that the land had been subdivided, transferred and therefore belonged to third parties who were not parties to that suit.

loAccordinglyasnonparties,theycouldnotappealagainstthedecisionofcourtbywhichtheylost their titles to the land, in respect of which they were facing evictions

### Conslderatlon of the lss|.e:

## 7. whether the Plllntlffs holtr- a cq|.se o.f d,ctlo'I. o,go:lnst the defendqnt?

The gist of the plaintiffs, argument is that they werc registered proprietors of the land comprised

15 in Kgad.ondo Btock 78g Plots 853, A51, aag, agl, a96, E52 and 89O' curved out of EgadondoBlockTS3Plot2T|thattheirlandtitlcshadbeencancelled,inasuitunderwhich they had not been made partics. (Attached is a copg of lhe iudgment and decree marked as annertur e s K and L re sP ecliuelg ).

20 Furthermore that they have developments on the suit Iand from which the defendant was attempting to evict them. That this alone shows that they enjoyed a right of occupancy on the suit land.

The plaintiffs held the defendant liable for actions which sought to displace them from the suit land. They claimed that there was no way they could have appealed against a judgment under which their rights had been extinguished since they wcre never parties to that suit. They therefore instituted this suit to restrain the defendant from evicting them from their properties

which they acquired as bona fide purchasers

In their submissions the argued that it was misleading to say that they knew that one Asumanr Kibira was the registered proprietor of the suit land. Their counsel who investigated the matter had found out that their titles had becn cancelled and the court ordered the reinstatement of one Haruna Mbabali as the registered proprietor and later a transfer made in the names of the

30 defendant. They relied on A7.nertrlre M attached to the plaint'

2^ \"!'!t

This is a letter from the land office which was addressed to the plaintiffs' advocates indicating that the registered proprietor at the time was the defendant.

The plaintiffs claimed tiey were safer suing the registered proprietor that was disclosed to them by the land oflice, not ruling out the fact that the defendant could also have been a beneficiary in addition to being an administrator ofthe estate; and therefore rightly sued. The mistake made

by the land registry should not be visited on to the plaintiffs.

That besides when the parties last appeared before this court, they had agreed to substitute the defendant with Asumani Kibira; it is the same person that has filed a witness statement and the sole witness for the defendant and, as stated under paragraph I of his witness statement one who holds powers of attorney for thc defendant. Accordingly, this preliminary objection should

not have been raised.

The defendant on his part contends that neither the plaintiffs nor the defendant were registered proprietors. Accordingly they have no cause of action against him in the present suit. That <sup>a</sup> judgment of court vide Clr/tl Sr.lt 175 of 2O7Oby which the plaintiffs'titles had been cancelled

15 is a judgment in rem, binding against the whole world, including the Plaintiffs'

The plaintiffs neither appealed nor sought a review of the said judgment. The judgment was binding on them, and so had no right to institute this suit against him even as bonafide purchasers.

Their prayer therefore was that suit be dismissed under order 7 r 7[(Q ol the CPR' for failing 20 to disclose a cause of action.

### tatlott:

The plaintiffs are rcpresented by M/s A!fu, Baleese, Bazlr@ke Ad.vocctes, while the defendant is represented by M/s Odokel Opolot & Co. Advocates.

### The lqw:

ln Auto Gatage and others Vs. Motorkou (No.3) (7971) EA 574' Spry V P summarized the essential elements for a cause of action as: The plaintiff enjoycd a right; that right was violated; and that the defendant was liablc.

I have carefully read the arguments raised and perused through the submissions made by each side, the law as well as the authorities cited. I need not reproduce what is stated therein in detail 30 since these are all on court record.


Suffrce to state however that the plaintiffs claimed to be bonafide purchcsers of their respective plots whose titles were cancelled. The principle of a bonafide purchaser as raised by the plaintiffs is a common law doctrine and as pointed out by counsel for the defendant, acctlon 787 of the Rcglstratlon oJ Tltles Act cap 23O applies whcre a person makes a purchase from another n who acquired the property fraudulently and the purchaser is proved to have had no knowledge or notice of the fraud, he/she derives protection from the law.

\n Dauld selJq.kq Na.ll,/.a v. Rebecco. I :4soke, c. A.c,A No. 72 o! 7985 it was held that before <sup>a</sup>purchaser can claim protection as a bona fi.de purchaser without notice of the fraud, he or she must act in good faith or otherwise loses the protection.

According to Dauld J. Hagton, The Laut of Redl Properfu (6th Editlon/, it is a plea, an absolute and unqualified defencc which can only act as a shield but not as a sword to commence an action. (Akrcermdns Industrles F;nglneering V. A. G Ctuil APpeal No. 88 ol2OO9 (2079)' 10

In reply, it was submitted that the defendant had read Paragraph 3 in isolation of the entire plaint. In paragraph 4 of the plaint the plaintiffs narrate the incidents how the cause of action

arose. That it was therefore misleading for the defendant to state that there is no cause of action in the plaint when the plaintiffs have stated clearly how they enjoyed a right, which the defendant violated. 15

Counsel for the plaintiffs also argued that the authorities relied on by the defendant were not in any way relevant to this case because they were not dealing with the doctrine of bonafide purchaser in as far as it relates to a cause of action, He did not however elaborate or avail to court any other authorities to support his rebuttal on that point' 20

As per the decree, the contents of which the plaintiffs find objectionable passed vide: ag@ Klbtra. I<dzib we us Nuotnbi Hamldu & 2 others.' Ciuil Suit No. 715 of 2O7o, dated 26th November, 2013, J. Kainamura, (as he then was), ordercd as follows:

- a) Tholt the lel;ters o! admlntstratlon gtanted to the 7n d'etendant (Nyo,,rbt Hannldu) utde AC No. 7852 ol 2OOA uere Jraudulentlg obtalned and are herebg reroked. - All the sactlons that toere carrled out usino the qboue letters of b) q.dml^lstrqtlon qre therefore d.eclq.red null an.d uold. - c) The defendants' eatry on Kgadondo Block 763, plot 27 ct Buscsa as reglstered proprl.etors and all Dlots tho:t qrose frorn the above block o'nd

plot are hereby cancelled and the name of Haruna Mbabali be reinstated. (emphasis mine).

Essentially what all this meant was that any transactions made before and even after the orders were issued by court, by Nyombi Hamidu (who was one of the defendants in that suit) to and/or $\mathsf{S}$ by any of his successors in title, were all null and void and of no legal effect therefore. The orders therefore had a retrospective effect.

The plaintiffs' argument therefore in their plaint that by the time the suit was filed the suit land had already been subdivided; several plots and titles created and changes in proprietorship made, did not hold any substance.

According to counsel for the defendant, the decision has never been challenged by way of any appeal or by review, options which had been available to the plaintiffs. The response to an appeal need no further elaboration for as they rightly pointed out, they had not been parties to the suit, and no such right of appeal therefore existed for them.

The principles and grounds for review are also well settled. The right to review, just like the right 15 to appeal is a creature of statute, (as per FX Mubwike Vs UEB High Court Misc. Application No. 98 of 2005).

Section 82 of the Civil Procedure Act, Cap. 71 is applicable for a party who seeks a review of court. The section provides that:

- " any person aggrieved by a decree or order from which an appeal is allowed, 20 but from which no appeal has been preferred or by a decree or order which no appeal is allowed, may apply to the Court which passed the decree or order for a review of the judgment. The Court may make such order(s) as it thinks fit" - Order 46 r.1 Civil Procedure Rules provides factors to be taken into account in 25 applications for review:

" ..... and who from the discovery of new and important matter of evidence which, after the exercise of due diligence, was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review

# oJ the decree passed or order made olgo:lnst hltn or her,....."[Ref also: Re-Nakiunbo Chetmlst M Ltd (7979) HCB 12).

The above provisions are therefore available to a third party who may feel aggrieved by a decision of court.

5 courts have defined an aggieued person as one who has becn deprived of his property or one who has suffered a legal grievancc.. (see lfioh4J,r,ned Alllbhal as w. E Bukengs Muko.sa 6L Depqrted Aslo]'I.s ProPertg Custodldn Boc:rd SCCA No. 5a of 7996).

Gathered from the record, the orders cancelling the titles werc issued in 2O 13. The commissioner, Land Registration had cancelled the titles under Instrzment No. W,AI{OO 746922' oJ 7d

November, 2077; and reinstated plot 27 in thc names of rlaruna Mbabali, in execution of the orders. 10

Based on the above provisions of the law providing for review, I could not aSree more that the matters raised in the main suit would have been duly addressed by this court if the plaintiffs had liled an application for the review, which ought to have been filed without delay'

The record indicates that on sth February 20 19, the Land office had written to ltr/s Allu, Baleese, Bazl"ake Adoocdtes (counsel then for the Plaintiffs) informing the firm that the land was regrstered in the names of Musa Kiswa Mutenda, the defendant as administrator of the estate of of Haruna Mbabali. 15

The orders of court were made in 2O13, transfers were madc as a follow up on those orders but it was not until 2019 six years later, that the plaintiffs chose to cha.llenge the cancellation of their titles, not as aggrieved parties in an application for review but through a fresh suit. 20

It is not clear why there had been such delay. lt is also not disclosed why after establishing from the land o{Iice that t}le defendant was the registered owner, why, after laboring to highlight under paragraph 4 the circumstances under which the cause of action arose, the defendant's name does not even feature in that Paragraph as the party liable.

would therefore be acting outside the scope of its jurisdiction as a trial court, turnirlg itself into

with all due respect, a decision by which this court is set to rehea-r the matter by way of a fresh suit may result in issuing conflicting orders against those made in 2013. tn effect, this court

an appellate court while exercising original jurisdiction. Absurd in my view

0ku"ts

Section 7 of the CPA provides:

$\mathsf{S}$

No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom or any of them claim, litigating under the same title, in a court competent to try the subsequent suit in which the issue has been subsequently raised, and has been heard and finally decided by that court.

The matters raised in the suit relate to the ownership of the suit land comprised in **Kyadondo** Block 183, plot 27, already heard and concluded in an earlier suit: Civil Suit No. 115 of 2010, reinstated under the names of the late Haruna Mbabali, as the rightful registered owner thereof and whose estate had been entrusted by this court to the defendant.

This court would therefore not only be acting outside the scope of its jurisdiction but would also face the danger of issuing orders which may not be in line with, or may conflict with the earlier orders of a competent court, holding the same/similar jurisdiction, a scenario which section 7

of the CPA was meant to avoid. The principle is also that litigation must come to an end. 15

The plaintiffs as nonparties to the concluded suit therefore ought to have followed the proper procedure for review as aggrieved parties.

This court therefore has no jurisdiction to hear the suit, which as correctly observed appears to be a disguised appeal against the orders of a competent court in the earlier suit.

For those reasons, I would therefore uphold the objections raised by the defendant. 20

Accordingly, Civil Suit No. 104 of 2019 is dismissed, with costs.

Alexandra Nkonge Rugadya

**Judge**

25 21<sup>st</sup> February, 2022

Delivered by enail<br>Delivered by enail<br>Delayer T<br>22/2/2022