Elidad Mbaziira and Others v Kabayo Grace Majoro and George Kiiza (Review Application No. 213 of 2023) [2023] UGHC 513 (29 November 2023)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT MUBENDE**

**REVIEW APPLICATION NO.213 OF 2023**

**(Arising from Civil Suit No.003 of 2019)**

1. **ELIDAD MBAZIIRA** 2. **GATEETE PATRICK** 3. **KITEERA WILLIAM** 4. **RUGYEREKA ALFAIL** 5. **RWANKUNIABIRE MOSES** 6. **MWINE EPHRAIM** 7. **RWANYAMUGABO JOHN** 8. **RWAKABOYO PASCAL APPLICANTS** 9. **KAYIBANDA FRED**

**10 . KAKWIINA JANE**

**11. AGABA ELISAH**

**12. SSENYUNVA JOHN**

**13. RUTEISIRA EMMANUEL**

**14. MANDERA HANINGTON**

**15. KIRABO GRACE**

**VERSUS**

1. **KABAYO GRACE MAJORO** 2. **GEORGE KIIZA RESPONDENTS**

**BEFORE HON JUSTICE MOSES KAZIBWE KAWUMI**

**RULING**

The Applicants filed a Notice of Motion with supporting affidavits seeking for Orders that:

1. The order providing for ***”the*** ***400 acres of un surveyed and untitled land”*** in the judgment delivered in Civil Suit No.003 of 2019, be reviewed and revised accordingly. 2. The respondents be permanently barred from using the said judgment, decree and orders arising out of Civil Suit No.003 of 2019 to interfere with the applicants’ ownership and quiet possession of land comprised in Buwekula Block 381 Plots 6&7 located at Nyarutete village in Mubende District. 3. Costs of this application be provided for.

The grounds of the application are set out in the affidavits sworn by the 1st,2nd and 7th Applicants which in summary state that;

1. On 26th October 2022 this court issued a judgment in Civil Suit No.003 of 2019 in which the 1st Respondent was the Plaintiff and the 2nd Respondent was the defendant. 2. It was decreed that the 2nd respondent is entitled to 400 acres outside the 1st respondent’s titled 241 acres of land and they were to be measured starting from where the 2nd respondent was ordinarily resident at the date of the sale agreement between the parties. 3. The 1st respondent was to facilitate the 2nd respondent’s acquisition of the title for the un surveyed land as agreed. 4. On 22nd February 2023 the Court Registrar issued an order for the Land Office to survey the 1st respondent’s titled land measuring 241 hectares and the 400 acres decreed to the 2nd respondent. 5. On 14th March 2023 the local leaders convened a meeting and informed the Applicants that the 1st respondent wanted to survey her land comprised in Buwekula Block 379 Plot 3 and thereafter survey all land comprised in Blocks 379,380 and 381 in a bid to locate the 400 acres the Court ordered her to pass on to the 2nd respondent. 6. The 1st respondent and her team insisted that since all the land the applicants are occupying comprises 625 hectares that had been initially allocated to her by the Uganda Land Commission, she has the liberty to survey all the land comprised in Blocks 379,380 and 381. 7. The Applicants resisted the attempt by the 1st respondent to survey their land comprised in Block 381 Plots 6&7 which does not even share a boundary with hers and no one gave them a clear nexus between the court order in civil suit No.003 of 2019 and their land. 8. That it was a mistake and an error apparent on the face of the record for the court to issue a judgment with orders providing for the 400 acres without ascertaining whether it is actually available, where it is exactly located, whether it could be encumbered or not. 9. That it was a mistake for the court to issue the judgment with orders relating to the 400 acres before specifically ascertaining whether the 1st respondent owned any unregistered/untitled land outside her 241 titled hectares of land. 10. That the applicants stand to suffer gross infringement of their constitutional rights and irreparable loss if the judgment and decree in Civil Suit No.003 of 2019 is not reviewed and revised to strike out the order regarding the 400 acres since no such land exists in that area.

Attached to the supporting affidavits is a copy of the Certificate of title for the land comprised in Buwekula Block 381 Plot 6 issued on 7th August 2007 to various persons including the 1st and 2nd Applicants as tenants in common. Also attached to the affidavit is a copy of the cadastral print of the area showing the layout of Block 379 Plot 3 owned by the 1st respondent and all the adjacent Blocks and Plots to it.

**Representation.**

The Applicants were represented by abbas Advocates. Kampala Associated Advocates appeared for the 1st Respondent and Kaganzi &Co. Advocates appeared for the 2nd Respondent.

**1st Respondent’s reply.**

The 1st Respondent filed an affidavit in which she contends that in 1977 she commenced negotiations with the Department of Lands to acquire 625 hectares of land which was approved vide ULC Minute 2/77(a) (115) of July 1977. A Lease offer was issued on 13th January 1988 but only 241 of the 645 hectares were surveyed and titled as Block 379 Plot 3. The 1st respondent however retained possession of the untitled land.

It is the 1st respondent’s contention that later in 2002 she sold 400 acres of untitled land to the 2nd respondent starting from the point of and surrounding his residence at the time which was located on the un surveyed portion of her land. The 2nd respondent was to take care of all the land but he shifted to the surveyed portion after renting and selling off portions of the un surveyed land in breach of the sale agreement.

That the court declared the 2nd respondent to be a trespasser on the titled 241 hectares, confirmed his entitlement to 400 hectares starting from the point he was ordinarily resident at when the sale agreement was executed and the 1st respondent was ordered to facilitate his acquisition of a land title to the decreed 400 acres.

The 1st respondent further contends that she knows that the Applicants are physically residing on part of Block 379 which forms the residue of the suit land but was fraudulently named as Block 381 with no records in the Land office and it overlaps part of the suit land. It is also contended that in December 2021 the Ministry of Lands carried out a resurvey of Plots 6 and 7 Blocks 379,380 and 381.

That the resurvey exercise revealed that Block 379 was occupied by Murisi Mukasa and the 1st Respondent. It was found that part of Block 379 was renamed Block 381 and Block 379 had many title holders which necessitated a review of all Land administration files on Blocks 379 and 381 followed with the opening of boundaries for the various plots to ascertain the actual occupants.

The 1st respondent further contends that there is no evidence adduced to show that there is an error apparent on the face of the record or new evidence introduced by the Applicants to justify a review of the judgment. The 1st Respondent contends that she has no interest in the 400 acres which were decreed to belong to the 2nd respondent.

**2nd respondent’s reply.**

The 2nd respondent in reply contends that he bought the 400 acres from Block 379 Plot 3 but in a bid to cheat him of the land, the 1st respondent filed Civil Suit No.003 of 2019 claiming that she owned 625 hectares at the time she sold the 400 acres to him.

It is further contended that the 1st Respondent untruthfully stated and was believed by the trial court that the 2nd respondent resided outside the surveyed land but had without authorization relocated to the titled land. Based on that untruth he was declared a trespasser on the titled land and was ordered to give vacant possession to the 1st Respondent.

That the 1st respondent resisted the 2nd respondent’s application for execution to obtain his entitlement as per the Court decree and the Registrar ordered for a survey of both the titled land and the 400 acres purportedly sold to him by the 1st respondent but the exercise was not completed due to the resistance put up by the Applicants.

The Court later rejected his application for execution by acquiring the 400 acres from the 1st respondent’s titled land reasoning that it was premature since the ordered survey exercise to ascertain whether the 400 acres existed or not had not been concluded.

The 2nd Respondent contends that the present application confirms his assertion that what the 1st respondent refers to as 400 acres outside her titled land is actually owned by people who acquired it prior to the 2002 transaction between the two respondents. That a search on the adjacent land reveals that the residue of Block 379 is owned by a one Kaluna Anania whose lease commenced on 12th March 1987.

The 2nd respondent seeks for orders that the Judgment be reviewed to show that the 1st respondent sold to him 400 acres which is part of the land described as Block 379 Plot 3 and she should be ordered to give him vacant possession and a certificate of title for the same acreage.

**Submissions.**

Counsel filed submissions which were considered. The Court later directed Counsel for the 1st and 2nd Respondents to engage the Chief Government Valuer for a report on the value of 400 acres of land adjacent to Block 379 Plot 3. The Chief Government Valuer wrote back stating that they could not submit the report for lack of funds and required more time for the exercise to be accomplished.

Counsel for the 2nd Respondent engaged a private valuer who in a report dated 23rd November 2023 and filed in court opined that the market value of an acre of land in the area adjacent to the suit land costs UGX. 10,000,000/-.

The Applicant raised the following issues for resolution by the court:

1. Whether the 1st and 2nd respondent’s affidavit in reply should be struck out for having been filed and served out of time and for offending the Law. 2. Whether the Applicants are aggrieved persons within the meaning of Section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules. 3. Whether the application meets the criteria for review. 4. Whether the respondents should be permanently barred from using the judgment, decree and orders arising out of Civil Suit No.003 of 2019 to interfere with the Applicants/ownership and quiet possession of the land comprised in Buwekula Block 381 Plots 6&7 at Nyarutete Village, Mubende District.

**Preliminary Objections.**

**Locus standi for the 5th and 6th Applicants.**

Counsel for the 1st Respondent contends that the 5th and 6th Applicants have no locus standi to institute the application as co-owners of the land comprised in Block 381 Plot 7. The 5th and 6th Applicants neither attached letters of administration to the estate of late Gahonda who was a co-owner of the land nor pleaded that they were a party to the application in their capacity as administrators of his estate.

The 5th and 6th Applicants filed no response to the objection. I find the objection to be in conformity with the law on pleadings. A holder of Letters of Administration derives the mandate to institute proceedings from the office he/she holds as such an administrator. This or any other capacity in which they joined the application had to be stated in the affidavit supporting the application which was not done.

Failure by the 5th and 6th Applicants to plead the capacity in which they joined the Application denies them of the locus standi to be a party to the application. They are accordingly struck off with costs. This position was postulated in **Sadrudin Nazarali Nanji V The Registered Trustees of Kampala Archdiocese. Civil Suit No.503 of 2011** and in **Dima Dominic Poro V Inyani Godfrey. Civil Appeal No.17 of 2016** cited by Counsel for the 1st Respondent.

**Locus standi for the 7th.8th.9th.10th.11th,12th,13th,14th and 15th Applicants.**

Counsel for the 1st respondent further contends that the 7th,8th,9th,10th, 11th, 12th, 13th,14th and 15th Applicants claim to have instituted the application as **“bona fide purchasers of several pieces of land on the** **suit land.”** They neither attached copies of their certificates of title to the affidavit in support of the Application nor appear on the certificates of title for the land comprised in Block 381 Plots 6 &7 as co-owners.

It is submitted that the 7th to 15th Applicants do not fulfil the requirements to be bona fide purchasers and their names should be struck off the application with costs. Counsel relies on the cases of **Sekasiko Christopher Mutayitwako V Edward Kasirye& Another. Civil Suit No.077 of 2014** and **Hannington Njuki V William Nyanzi. HCCS No.434/1996** for the submission.

The objection is premised on the averment in the Affidavit sworn by the 7th Applicant wherein it is stated:-

***“That I together with the 8th,9th,10th,11th,12th,13th,14th and 15th applicants are bonafide purchasers of several pieces of land on titled land comprised in Buwekula Block 381 Plots 6&7 located at Nyarutete Village,Mubende District and being aggrieved by the court judgment, Decree and some of the orders providing for the 400 acres of un surveyed and untitled land vide civil suit No,003 of 2019…”***

Counsel for the Applicants did not respond to the objection. It is however imperative to note that the named Applicants pleaded to be ***bona fide purchasers*** and not ***bona fide purchasers for value without*** ***notice*** which is a statutory defence available to persons registered as proprietors under the Registration of Titles Act.

**Haji abdu Nasser Katende V Vithalidas Hardas &Co. Ltd CACA No.84 /2003; Sir John Bageire V Ausi Matovu. CACA 7/1997.**

The context in which the term ***“bona fide purchasers”*** was used in the affidavit is qualified by the addition of the Applicants having bought ***“several pieces of land on titled land comprised in Buwekula Block 381 Plots 6&&7”.*** The statement read as a whole implies that they did not purchase registered interests in Plots 6 and 7 of Block 381 so as to hold land titles. The Applicants are further not raising the nature of their interests in Plots 6 and 7 as a statutory defence but as a justification for their qualification to participate in the application.

To that extent I find no merit in the objection. The Applicants cannot be held to the qualifications of a bona fide purchaser for value without notice envisaged in the Registration of Titles Act since they are not raising a statutory defence and did not acquire registered interests.

What I find to be relevant and questionable is the 7th to 15th Applicants’ failure to attach evidence of purchase of their respective interests in Plots 6 and 7 of Block 381 so as to establish a cause of action for instituting the Application though not registered on the land title as co-owners like other Applicants.

It is trite law that a cause of action is established from the pleadings and attachments thereto and nowhere else. The documents to prove the 7th to 15th Applicants’ ownership of their respective interests were not filed to show a nexus to Block 381 Plots 6 &7. They cannot thus claim to be affected by the Order relating to the 400 acres of land decreed to the 2nd Respondent. No cause of action was thus established against the respondents.

**Dr. Arinaitwe Raphael &Others V IGG. HCCS No.349/2017;Jeraj Sharrif &Co. V Chotai Fancy Store(1960)EA 374.**

The 7th,8th,9th,10th,11th,12th,13th,14th and 15th Applicants are accordingly struck off the Application.

Resolution of the 1st issue.

**Whether the 1st and 2nd respondent’s affidavits in reply should be struck out for having been filed and served out of time and for offending the Law.**

It was argued for the Applicants that the Application was served on the 1st respondent on 31st May 2023 and the 2nd respondent was served on 8th September 2023. The 1st respondent filed a reply on 18th July 2023 and the 2nd respondent filed a reply on 25th September 2023 which in both cases was outside the 15 days stipulated by **Order 8 rule 1(2) of** **the Civil Procedure Rules** and no leave of court had been sought prior to the late filing. Counsel urged the court to strike out the Affidavits.

It was argued in response by Counsel for the 1st respondent that the late filing was due to the Applicants’ failure to furnish legible copies of attachments to the affidavits supporting the application. It was further argued that no injustice had been occasioned to the Applicants by the late filing and the court should exercise its discretion to allow the replies on the record.

The affidavits in reply were filed after the 15 days stipulated in Order 8 rule 1(2) of the Civil Procedure Rules but the court is mindful of the delay by Counsel for the Applicants to furnish Counsel for the Respondents with legible copies of the attachments to the affidavits as it was ordered. Counsel for the Applicants also filed Affidavits in Rejoinder to the averments in what was filed by the Respondents.

I am inclined to exercise flexibility to maintain the Affidavits on the record on account of the fact that no prejudice was occasioned to the Applicants by the late filing. It is also imperative that all parties to the application are heard for the court to finally determine all questions regarding their rights to the suit land to avert a multiplicity of suits over the same subject matter. I overrule the objection.

**Surgipharm(U)Ltd V Uganda Investment Authority&Another. MC No.65/2021; Dr. Akampumuza V ABSA Bank Uganda Limited & Others. MA No.999 of 2021; Dr. Lam-Lagoro James V Muni University. MC No. 007 of 2016.**

Resolution of the 2nd issue.

**Whether the Applicants are aggrieved persons within the meaning of section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules.**

The Applicants contend that the 1st respondent in the company of Police and Local leaders attempted to forcefully enter and survey their land comprised in Block 381 Plots 6 & 7 in a bid to unlawfully acquire the 400 acres to give the 2nd respondent. This was done in the guise of complying with the court order in a suit in which the Applicants were not a party and in which the court had not established whether the 1st respondent owned any un surveyed land in the area and its location.

It is further contended that the Applicants were threatened with imprisonment for contempt of a court order subsequent to which the 1st respondent would freely enter their land and do anything she wanted on it as they languish in jail. This assertion was not rebutted by the 1st Respondent in her Affidavit in Reply.

The Applicants submitted that the order to survey 400 acres before ascertaining its availability and the averments of the 1st respondent in regard to their occupation of the 685 hectares she had been leased makes them aggrieved persons **under section 82 of the Civil Procedure Act** and **Order 46 rule 1 of the Civil Procedure Rules.**

The 2nd Respondent on his part contends that he bought 400 acres on Block 379 Plot 3 but the court was misled to believe that he bought untitled land from which he shifted to the surveyed land. The 2nd Respondent argues that what the 1st Respondent claims to have been un surveyed land belonged to a one Kaluna Anania whose lease commenced on 12th March 1987 which explains her failure to hand over the 400 acres to him.

The 1st Respondent on her part contends that the 5th,6th and 7th to 15th Applicants are not aggrieved persons since they have no direct interest injuriously affected by the judgment and orders made by the trial court.

It is argued for the 1st Respondent that the application is pre-emptory and premature in nature as no grievance was suffered by the remaining Applicants. It is further argued that the Applicants resisted the intended survey and hence cannot claim to have been injuriously affected by the impugned Court order but merely pleaded a possibility of its happening which cannot be justiciable.

Counsel for the 1st Respondent submitted that it is not true that the1st to 4th Applicants occupied the suit land before the transaction between the Respondents. The 1st and 2nd Applicants are stated to have been registered on 7th August 2007 having obtained the lease in 2003 while the 3rd and 4th Applicants got registered on 25th August 2008.

It is further contended that the 1st Respondent has no obligation, contractual or otherwise imposed on her to avail 400 acres to the 2nd Respondent since no court made orders to the effect. It is argued in the alternative, that if any grievance was suffered by the Applicants, it is not attributable to the 1st Respondent since the survey that forms the basis of the application was a result of a Court order and was not on the 1st Respondent’s own accord.

Counsel submitted that there was no error apparent on the face of the record and no other sufficient ground was raised by the Applicants to warrant a review and setting aside of the judgment and decree issued by the trial Judge in the Suit.

**Decision.**

Section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules are couched in similar words.

***‘Any person considering himself or herself aggrieved by a decree or order from which an appeal is allowed ,but from which no appeal has been preferred; or by a decree or order from which no appeal is hereby allowed, and who from the discovery of a 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 of the decree passed or order made against him or her, may apply for a review of the judgment to the court which passed the decree or made the order.”***

The courts have held in a number of authorities that” **a person** **considers himself aggrieved if he has suffered a legal grievance**” and that **“a person suffers a legal grievance if the judgment given is against him or affects his interest.”**

**In Re. Nakivubo Chemists (U)Ltd[1971]HCB 12;Ladak Abdullah Hussein V Griffiths Isingoma Kakiiza &Others. Civil Appeal No.8/1995.**

It is also trite to state that an aggrieved party under section 82 of the Act need not necessarily have been a party to the suit in which the judgment/orders sought to be reviewed were issued. Where a third party can prove that he or she is an aggrieved person and has suffered a legal grievance he or she can apply for review.

**Mohamed Alibhai V W. E Bukenya Mukasa&DAPCB. SC CA No.56 OF 1996.**

The requirement is simply proof to show that the Applicant’s interests are affected by the judgment or orders in a suit. The 5th to 15th Applicants who are not registered co-owners of the land claimed to be affected by the court order and who failed to prove their nexus to the Application have no basis to a claim to be affected persons in the context of section 82 of the Act.

It is evident from the judgment of the court that the 2nd Respondent is entitled to 400 acres of land outside the 1st Respondent’s titled land and it was to be surveyed from the point at which he originally stayed. A perusal of cadastral prints of the area in which the 1st Respondent’s Block 379 Plot 3 is located shows that it is surrounded by Blocks 378 and 381 which are occupied by the Applicants and other persons.

The 1st Respondent in her own Affidavit in Reply to the Application confirmed that she knows that the Applicants occupy what was her 625 hectares originally applied for but of which only 241 were surveyed. The 1st Respondent further alluded to a 2021 survey which allegedly revealed discrepancies in naming Block 391 and the necessity to revisit the whole plotting of various Blocks in the area.

Irrespective of when the Applicants started occupying the land adjacent to the 1st Respondent’s titled land, the order for the 2nd Respondent’s entitlement to the 400 acres and determining the starting point from which it was to be demarcated before ascertaining whether the 1st Respondent owned it, was made in error.

The Applicants and other people’s undisputed ownership of the land adjacent to the 1st Respondents Block 379 Plot 3 confirms the error and the fact that it cannot be enforced against persons who were not a party to the suit which is sufficient reason for the Order of the trial court regarding the 400 acres to be reviewed

The 1st Respondent claims in her affidavit to have known of alleged discrepancies in the naming of the Blocks and Plots on the adjacent land purportedly revealed in a 2021 survey. She did not provide this evidence to the trial court to aid it in the making of the final orders regarding the 2nd Respondent’s entitlement to his 400 acres.

The 1st Respondent’s claim to all the land occupied by the Applicants as forming part of the 625 hectares she had applied to lease confirms the fact that what was ordered by the court was an error of fact and is unenforceable.

**Section 59 of the Registration of Titles Act** bestows ownership of land to persons registered on Certificates of title save in instances of proved fraud. The 1st Respondent had not led evidence to show that the un surveyed balance of the 625 hectares had been decreed to her as against the Applicants for the court to order for a demarcation of 400 acres from it to be given to the 2nd Respondent.

The Supreme Court in **Edison Kanyabwera V Pastori Tumwebaze. SCCA No.6 of 2004** held:-

***“In order that an error may be a ground for review,it must be one apparent on the face of the record an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit such an error to remain on the court record. The error may be one of fact ,but it is not limited to matters of fact, and includes also errors of law.”***

The 1st Respondent in paragraphs 23, 24 and 25 of her Affidavit in Reply asserts that what the Applicants occupy forms part of the 625 hectares she applied for, cannot abscond from the obligation imposed on her by the court to facilitate the 2nd Respondent to acquire his entitlement. The 2nd Respondent who did not apply for the 625 hectares cannot also apportion himself and acquire a title for the decreed 400 acres.

It is also fallacious to argue that the present application is pre-emptory given that the 1st Respondent who asserts ownership of the land the Applicants occupy had already taken steps to have it surveyed waving the court order as the basis for the intended survey. The panacea to the Applicants legal grievance was to file the present application.

I also find no merit in the argument by the 2nd Respondent that he bought 400 acres of titled land. The trial court analysed the evidence and also made reference to the Counter-claim he filed claiming to have bought customary land. Such an argument to set aside the finding of fact by the trial court can only be raised on Appeal and not in an application of this nature.

The court cannot however leave the 2nd Respondent without a remedy given the undisputed holding by the trial Judge that he is entitled to the 400 acres and the 1st Respondent was to facilitate his acquisition of the entitlement.

**Section 33 of the Judicature Act** enjoins courts to grant such remedies as may be just and reasonable in the circumstances of the cases adjudicated. **Section 98 of the Civil Procedure Act** empowers the court to make decisions pertinent for meeting the ends of justice and to prevent a multiplicity of suits.

In the circumstances the court makes the following declarations and orders.

1. The Application by the 1st to 4th Applicants succeeds with costs to be paid by the 1st Respondent. 2. The 5th to 15th Applicants are struck off the Application with costs to be paid to the 1st Respondent. 3. The Order for the 2nd Respondent to be given 400 acres outside the 1st Respondent’s Buwekula Block 379 Plot 3 is set aside since it was issued in error and cannot be enforced. 4. The 1st Respondent shall in lieu of the 400 acres pay the 2nd Respondent UGX. 4,000,000,000/= being the estimated value of 400 acres in the location of Block 379 Plot 3 based on the report by Katuramu & Co. Consulting Surveyors dated 23rd November 2023. 5. The payment in (4) above shall be made within three months from the date of this Ruling. 6. In the event that the 1st Respondent fails to meet the condition in (5) above within the stipulated time, the 2nd Respondent shall be entitled to attach, survey and acquire a certificate of title for 400 acres from the 1st Respondent’s Buwekula Block 379 Plot 3.

Moses Kazibwe Kawumi

Judge

29th November 2023