Kalangwa and Another v Ssentongo and Another (Miscellaneous Application No. 1338 of 2020) [2021] UGHCLD 219 (28 October 2021)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### (LAND DTVTSTON)

## MISCELLANEOUS APPLICATION NO. 1338 OF 2O2O

Arising from CS-559-2OL9

1. KALANGWA EDWARD

2. TWAGIRAYTIHI JAMES APPLICANTS

#### VERSUS

#### 1. SSENTONGO CHRTSTOPHER

## 2. NANSEERA BETTY : : : : : : :: : : : : : : :: : : : : : : : : : : : : : : : : : : : RESPONDENTS

BEFORE: HON. JUSTICE DR. FLAVIAN ZEIJA

#### RULING

# 1. O Introduction

This application was brought by way of Notice of Motion under Section 82 Civil Procedure Act Cap 71, Order 46 rules (1) and (81 Civil Procedure Rules SI 71-1 seeking to review and set aside the ruling of this court delivered on the sth March 2020 which dismissed CS-559-2019. The grounds of the application are set out in the affidavit of the 1st applicant but briefly is that the decision of the trial judge contains an error so manifest and clear that no court ought to permit it to remain on record.


## 2.0 Background

The applicants sued the respondents seeking inter alia, a declaration that that they are the legal owners of land comprised in Block 885 Plot 2 Kyamawuba *(suit land)* and that the $1^{st}$ and $2^{nd}$ respondents/ defendants obtained their registration in respect of the suit land through fraud. The applicants' case is that the 1<sup>st</sup> applicant/plaintiff purchased the suit land from a one Yosefu Sekitoleko in the year 2000 and immediately took possession and utilized the same. That at the time of the purchase of the suit land which was a leasehold land belonged to the estate of the late Kulistofa Kiiza. The plaintiffs alleged that the $1^{st}$ and $2^{nd}$ respondents/defendants, using forged minutes of Nakaseke District Land Board, fraudulently applied to revert the plaintiffs' certificate of title on Block 885 Plot 13, 14 and 15 back to Block 885 Plot 2 and had a title issued to them.

On the other hand, the respondents/ defendants contend that they are the grandson and daughter of the late Kulistofa Kizza who previously had a lease on the suit land comprised in FRV 3082 Folio 2 Plots 2, 3 and 5 Block 885,895 and 896 land at Kyamuwuba among others for a period of 36 years running from 1st September 1978 to September 2014. That upon expiry of the lease the $1$ <sup>st</sup> respondents/defendants together with other family members sat and agreed to apply for title of the land. An application to Nakaseke District Land Board was made and considered and the 1st and 2nd respondents/defendants were issued a title in respect of the suit land on $22^{nd}$ February 2016. Further that upon the 1<sup>st</sup> and 2<sup>nd</sup> respondents/defendants establishing that the applicants/plaintiffs had erroneously secured a grant of freehold title of the same land


from Luwero District Land Board, an investigation was commenced. It was found that the applicants/plaintiffs certihcate of title was issued on the 17tt,July 2014 when the leasehold interest of the late Kulistofa Kizza was still subsisting. The 1"t and 2"d respondents,/defendants then lodged a complaint with the Land Registration Department, Ministry of Lands, where upon hearing from both parties, a decision to cancel the plaintiffs freehold interest was passed on the 18th December 20 18. Aggrieved by that decision the applicants/ plaintiffs filed CS-559-2019 challenging the cancellation.

During the hearing of the suit counsel for the 1"t and 2"d respondents/defendants raised a preliminary objection to the effect that the suit was incompetent and prayed for the same to be dismissed. Counsel for the 1"t and 2"d defendants submitted that the 3.d respondent/defendant exercised its powers under Section 91(1) of the Land Act Cap 227 and cancelled the applicant's title and the only remedy available for the applicants was an appeal to the Magistrates Court under Section 91(1O) of the Land Act and not an ordinary suit. In reply to the preliminary point of objection counsel for the applicants submitted that the respondents did not bring any evidence to prove that the cancellation was based on the provisions of Section 9l(2) Land Act. Furthermore, that the plaintiffs' suit is premised on fraud and that the 3.d respondent's actions and powers are limited to actions of error and illegalities and not fraud.

The trial judge relying on the decision of Beatrice Matovu Iga Musisi & anor Vs. C. R Patel C. A. C. A No. 2OO|2OL3 upheld the preliminary ection and dismissed the suit with costs to the l"t and 2"d obj

(-) 3

respondents/defendants. Thus, the applicants' seek to review and set aside that decision.

## 3. O Representation

At the hearing of the application, the applicants were represented by M/s F. Aogon & Co. Advocates whereas the respondents were represented by Maven Advocates. Both parties hled written submissions which are on record.

## 4. O Issues

The issues raised for determination were to wit;

- 1. Whether the applicants are aggieued parties? - 2. Wlrcther there are grounds for court to grant an order for reuiew? - 3. Whether the applicant is entitled to the orders sought in the application?

## 5. O Resolution of issues

# Issue 1: Whether the applicants are aggrieved parties?

Counsel for the applicants citing the case ol Kaloli Tabuta Vs. Transroad Usanda Limited Hish Court MS-478-2O19 and Wakera Vitalis Vs Sulaiman Owor Hish Court ]\$IA-o,o,44-2016 submitted that the order of court deprived the applicants of their legal right to sue for fraud committed by the respondents that led to the loss of


their land and cancellation of their title hence sullering a legal wrong as aggrieved persons.

In reply counsel for the respondents submitted that the applicants suit was challenging the Commissioner Land Registration's decision cancelling their certificate of title but they attempted to dress it with their allegations of fraud. Counsel submitted that the applicants'title was not fraudulently canceled or cancelled on grounds of fraud but the same was cancelled on grounds that it had been erroneously granted to them. That the process through which the certihcate was cancelled was not fraudulent but rather lawful and as such the applicants were not aggrieved parties

In view of the above submissions by both counsel, who then is an aggrieved party? An aggrieved party was deltned by Justice Karokora (as he then was) in Mohammed Allibhai Vs W. E. Bukenva and Another, C. A 56 of 1996 , citing, Re Nakivubo Chemists (Ul Ltd; In the matter of the Companies Act <sup>I</sup> L9791 HCB <sup>12</sup> ;to include any pafty who has been deprived of his property.

The applicants herein contend that the suit land has always belonged to them and their title was fraudulently cancelled by the Commissioner Land Registration. From the record both parties are claiming ownership of the suit land. The applicants' contention is that they are aggrieved by the decision that cancelled their title. As such I find that the applicants are aggrieved parties.

Issue 2: Whether there are grounds for court to grant an order for review?

Counsel for the applicants submitted that this application is primarily premised on an error apparent on the face of record. counsel lurther submitted that upon discovery of the fraud on which the commissioner Land Registration acted to cancel their title, their remedy lay in filing a suit in the High Court for fraud and not an appeal against that fraud under Section 9l(1) Land Act. Further that the value of the subject matter is UGX 2,O16,0OO,OOO/= wh'ch is way beyond the jurisdiction of the Magistrates court giving the applicants as aggrieved parties only the option of filing a suit for fraud in the High court, like they did. counsel submitted that this error is so apparent on the face of the record that this court should not permit it to remain on record.

In reply counsel for the respondents submitted that the applicalts, prayers in their plaint were simply challenging the cancellation of their title by the commissioner Land Registration under Section 9 1 ( 1) Land Act on ground that the Respondent's title had been erroneously issued. Furthermore, that the applicants did not particularize the illegalities and fraud on the part of the respondents and particularly the commissioner land registration. counsel for the Respondents insisted that fraud was not the basis of cancellation of the applicants, title but rather it was cancelled on ground that it was erroneously issued. That following the dismissal of the suit the applicants filed MC-00 1-2020 for leave to file an appea-l out of time challenging the decision of cancellation. paragraph lo of the afhdavit of the applicants contend that the decision to file an ordinar5r suit instead of appealing the decision of the commissioner was a mistake on the part of their former lawyers which shouid not be visited on them. That their title was cancelled without affording them a hearing. That

 the applicants knew that the right way to challenge the decision was to appeal and not file an ordinary suit.

I have duly considered the submissions of both counsel, the affrdavit evidence and appreciated the law and authorities cited.

## The position of the law.

Section 82 of the Civil Procedure Act Cap 71, provides that any person considering himself or herself aggrieved-

(a) by a decree or order from which an appeal is alloued by this Act, butfrom u.hich no appeal has been prefeted; or

(b) bg a decree or order from which no appeal is allowed bg this Act, mag apply for a reuiew of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit.

Order 46 rule 1 (1) (b) of the Civil Procedure Rules provides that any person considering himself or herself aggrieved by a decree or order from which no appeal is hereby allowed ... 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 judgment to order. the court which passed the decree or made the

Grounds for review were enunciated in the case <t[ FX Mubutike Vs. UEB High Court Misc. Application No.98 of 2OOS(also cited by counsel for the applicants) to be;

- i. That there is a mistake or manifest mistake or error apparent on the face of the record. - ii. That there is the discouery of new and important euidence which afier exercise of due diligence was not Luithin the applicant's knowledge or could not be produced bg him or her at the time when the decree was passed or the order made. - tu That ang other sufficient reason eists

An error apparent on the face of the record was dehned as one which is manifest or self-euident and does not require an examination or argument to establish it. See.. Bo'tuk K. Vuqs a Sura,t Municipalita. A perceived misdirection or error in judgment by <sup>a</sup> judicial officer on a matter of law cannot be said to be an error on the face of the record. See also: Kalokola Kaloli Vs Nduga Robert MA-497-20L4.

Tumwebaze Civil Appeal No. 6 of2OO4, court stated that an error may be a ground of review and must be apparent on the face of the record i.e. an evident error which doesn't require any extraneous mntter 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 record. The error may be of fact or law. In the Supreme Court case of Edison Kanvabwera Vs pastori


If one needs to 'enter the head" of the trial judge to investigate the error, then this error is not apparent on the record and cannot be a ground for review but a legal argument that can only be opened by the appellate court.

In the instant case the applicants have not disputed that at the time of calcellation of their title the alleged fraud had not been put to the attention of the commissioner. What the applicants are stating is that the respondents forged minutes from Nakaseke Board which they used to illegally procure their title. It is subsequent to this lack of knowledge of the alleged fraud that the commissioner cancelled the applicants title. I have looked at the plaint. What can be discerned from the plaint is that the applicants did not particulxize any particulars of the fraud. Under paragraph 4 of the plaint, the applicants state that the respondents fraudulently applied to revert the applicants title back to its original description and had the same issued to them using forged minutes of Nakaseke Board. The law on pleading fraud is provided for under Order 6 r 3 of the Civil Procedure Rules S. I 71-1, to wit;

" In all cases in which the party pleading relies on ang misrepresentation, fraud, breach of trust, uillful default or undue inJluence, and in all other cases in uthich particulars mag be necessary, the particulars with dates shall be stated in the pleadings."

This rule has been variously interpreted in several cases where fraud is alleged. In the case of Kampala Bottlers Ltd Vs Damanico (Ul Ltd Civil Appeal No. 22 of 1992, Hon. Justice Platt JSC held and I quote at page 5 of his judgment:


"In the first place, I strongly deprecate the manner in which the Respondent alleged fraud in his Witten Statement of Defence. Fraud is uery seious allegation to make; and it is; as always, u.tise to abide bg the Ciuil Procedure Rules Order VI Rule 2 and pleadfraud properlg giuing particulars of the fraud alleged. Had that been done, and the Appellant had been implicated, then onthe Judge's findings that would haue been the end of the Defence. If, on the other hand, the oJficials had been implicated, then on the usual interpretation of Section 184 (c) of the Registration of titles Act, tLnt u.tould haue been found to be insufficient." (Emphasis added)

Wambuzi CJ held that

"Normallg, where fraud is pleaded, particulars of the fraud must be giuen."

The above case demonstrates that where fraud is pleaded, it is necessary to give the particulars of fraud. However, in the Supreme Case of Tororo Cement Co. Ltd Vs Frokina International Limited SCCA No. 2 of 2OOI Karokora JSC citing the dictum of Odoki JSC in the case of Okello Vs UNEB CA 12 / l9S2 (Where I was counsel) held that;

"l agree it is a rule of practice to specify the particulars of fraud under definite heading entitled "particulars of fraud". But in m14 uiew that is onlg a requirement as to the form of pleadings uhose


departure from uill not necessarilg uitiate the pleadings. In this connection, I u.tould agree with uhat Spry J said in Castelino <sup>u</sup> Rodiqnes I1972) EA 223 Of course rules are made to be obserued, but irregularities of form mag be ignored or cured bg amendment uthere theg haue occasioned no prejudice. In these matters of fonn, courts are much less slncl todag thanformerly."

It has been established in the instant case that although the applicants alleged fraud in the plaint they did not particulaize the same. However, failure to do this, as per the above decision, does not vitiate their case. The omission in the pleadings by the plaintiffs could be cured by amendments at any stage during the proceeding of the case. Since there is a cause of action, the matter can still proceed and be decided on merit. There is a clear allegation that the respondents forged the minutes of the District Land Board to obtain an allocation of a lease to them. Though not particularized under a separate heading, that is allegation of fraud and if proved to be true through evidence to be adduced can lead to cancellation.

It is clear that the applicant's suit was not only challenging cancellation of their title but it was a,lso cha-llenging the acquisition of the title by the respondents. It was an omnibus suit. It was therefore, erroneou-s f<rr court to dismiss it on the basis of the provisions of S 9 i of the Land Act without taking into account the fact that the applicants were a-lso challenging the acquisition of a title on the same land by the respondents. In any case, the pleadings suggest that the applicants are in occupation of the land in dispute-If true, then an inquiry into the legitimacy of their possession whether they have title or not would be legitimate.


Further under paragraph 9 ol the plaint, the plaintiffs averred that the respondents alleged interest on the suit land was extinguished by the court in CS-0036-2007 where the applicants litigated with a one Senyama Amonia. All these aliegation are subject to proof at the trial.

It is alleged by the applicants that this decision was never challenged. The applicants in their plaint also prayed for an order lor cancellation of the respondents' title and reinstating their title. In any case, the respondents also have a counterclaim which has to be subjected to tria,l, even if the plaint was to be dismissed.

In the resuit, I find that this is a decision worth reviewing. The costs shall abide by the results of the main suit.

Before I take leave of this matter I have to point out the conduct of the applicants engaging a "broker" (who is not their counsel acting under instntctions) to approach my Chambers under unclear methods seeking advantages for the applicants. Such uncouth behavior must stop.

Dated at Kampala this . day of. 2021 Flavian Zeija lP PRINCIPAL gUDGE