Kalungi Kirumira v NewPark Lock Up Owners Association and Another (Miscellaneous Application 644 of 2022) [2024] UGHCCD 134 (19 August 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO. 0644 OF 2022 (ARISING FROM CIVIL SUIT NO. 205 OF 2021) KALUNGI KIRUMIRA MOSES :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS 1. NEW PARK LOCK UP OWNERS ASSOCIATION 2. KIYIMBA FRED ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS**

## **BEFORE: HON. JUSTICE BONIFICA WAMALA RULING**

#### **Introduction**

[1] This application was brought by Notice of Motion under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 rule 1 of the CPR seeking orders that;

a) The 1st and 2nd respondents be ordered to deposit the original Certificate of Title of land comprised in plots 1A-7A & 9A-11A situate at Mackay Road, Kampala in Court for custody until final disposal of the main suit.

b) The costs of the application be provided for.

[2] The grounds of the application are set out in the Notice of Motion and in the affidavit in support of the application deposed by **Kalungi Moses Kirumira**, the applicant. Briefly, the grounds are that on 2nd November 2016, the applicant entered into a land sale agreement with the 1st respondent who was represented by the 2nd respondent to purchase land comprised in plots 1A-7A & 9A-11A situate at Mackay Road Kampala comprising a number of listed units wherein he paid a consideration of USD 1,050,000/= (One million fifty thousand United States Dollars). The applicant also paid a sum of UGX 208,800,000/= and UGX 11,600,000/= to the 1st and 2nd respondents so that they could secure release of the titles by the bank and effect their transfer into the applicant's name. The applicant has since taken possession of the suit land and developed the same but the respondents have refused to effect transfer of the certificates of title into his names despite having the original copies of the certificate of title and having received money to transfer the same. The applicant averred that he has engaged the respondents through formal meetings and correspondences to finalize the transaction by executing the transfer into his names which has not been done to date and he has been left with no option but to institute HCCS No. 205 of 2021 from which this application arises. He concluded that it is in the interest of justice that the application is granted.

[3] The application was opposed through an affidavit in reply deposed by **John Rogers Tusingize**, the Vice Chairperson of the Board of Directors of the 1st respondent. He stated that the applicant entered into a sale agreement in respect of a total of 116 condominium units and all the certificates of title in issue were received by the applicant. He stated that the applicant has frustrated the process of transfer of the said condominium certificates into his names as he has refused and/or ignored to return to the 1st respondent transfer forms duly signed by himself and properly witnessed. He further stated that the certificate of title of the suit land is enjoined with another piece of land comprised in plots 3A - 5A Namirembe Road and 1A - 7A and 15A Mackay Road. He averred that the certificate of title of land comprised in plots 1A-7A and 9A-11A situate at Mackay Road is not subject of the main suit and the same was mortgaged to DFCU Bank on 23rd June 2015 before the parties entered into the sale agreement herein in issue and later to Equity Bank on 8th January 2021 which mortgages are still running. The deponent also averred that there are over 1000 condominium certificates of title including the 116 belonging to the applicant that have been created over the said certificate of title and it is practically impossible to present the certificate of title for the land

comprised in plots 1A-7A & 9A-11A. He concluded that the balance of convenience lies in favour of not granting the application as the prayers sought shall not only affect the mortgage with Equity Bank but also the rights of other members of the 1st respondent for whom condominium certificates of title have been created and others still being created over the land in issue.

[4] The applicant made and filed two affidavits in rejoinder whose contents I have taken into consideration.

#### **Representation and Hearing**

[5] At the hearing, the applicant was represented by **Mr. Nasasira Ivan** and **Mr. Pamba Egan** of M/s Opwonya & Co. Advocates while the Respondent was represented by **Mr. Martin Muhumuza** of M/s Kizito Lumu & Co. Advocates. The matter proceeded upon written submissions which were duly filed by both counsel and have been taken into consideration by the Court.

[6] One issue is up for determination by the Court, namely; *Whether sufficient grounds exist for requiring the respondents to deposit in court for custody of the original certificate of title for the land comprised in plots 1A-7A & 9A-11A situate at Mackay Road Kampala until disposal of the main suit?*

#### **Submissions by Counsel for the Applicant**

[7] Counsel for the applicant submitted that the application is based on the court's inherent powers as set out under Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act. Counsel submitted that the applicant executed a sale agreement with the respondents and paid a consideration of USD 1,050,000 and also made other payments of UGX 208,000,000/= and UGX 11,600,000/= towards transfer of the titles into the applicant's name but the respondent has refused or neglected to effect the said transfer of the suit land. Counsel prayed that the respondents be ordered to deposit the 116 condominium certificates of title of land comprised in plot 1A-7A and 9A-11A situate at Mackay Road for safe custody until the final disposal of the main suit.

#### **Submissions by Counsel for the Respondents**

[8] It was submitted by Counsel for the respondents that the applicant has not demonstrated any grounds necessary for depositing the certificate of title into court. Counsel argued that the certificate of title which is the subject of the application is enjoined with another piece of land which is not subject to the main suit. Counsel further stated that the certificate of title was mortgaged to DFCU Bank on 23rd June 2015 and later to Equity Bank on 5th January 2021 which mortgages are still running. Counsel also stated that there has been creation of over 1000 condominium certificates of title that belong to other persons. Counsel stated that it is practically impossible to present the certificate of title and that the balance of convenience is in favor of not granting the application as the grant shall not only affect the mortgages registered on the title but also the rights of the other members of the respondent whose condominium certificates have been created and those yet to be created.

### **Determination by the Court**

[9] It is not disputed that the applicant entered into a land sale agreement with the respondents and duly paid the consideration plus additional fees to facilitate the transfer of the land titles into the applicant's name. It is also not in dispute that the certificates of title for the land purchased by the applicant have not been transferred in accordance with the agreement. The reasons behind the failed transfer are the subject of HCCS No. 205 of 2021 from which this application arises. In this application, the applicant seeks for an order against the respondents to deposit into the court custody of the original certificate of title, part of which the applicant purchased as per the agreement dated 2nd November 2016; pending determination of the main suit.

[10] I note that by this application, the applicant gives an impression as if he purchased the entire land comprised in the certificate of title for plots 1A-7A & 9A-11A situate at Mackay Road, Kampala; or that the certificate of title for plots 1A-7A & 9A-11A is only comprised of the 116 condominium titles that were purchased by the applicant. A reading of the sale agreement dated 2nd November 2016, however, shows that the agreement was for sale of part of the land comprised in plots 1A-7A & 9A-11A at Mackay Road. It has been shown in evidence by the respondents, in the affidavit in reply, that the 116 condominium titles purchased by the applicant are part of over a 1000 other condominium titles that have been issued to other beneficiaries. It has further been shown by the respondents that the said certificate of title is also subject to two mortgages that are still subsisting. This evidence has not been disputed by the applicant.

[11] It is therefore clear to me, and no evidence has been adduced by the applicant to the contrary, that it is unjustifiable for the entire certificate of title, comprised in plots 1A-7A & 9A-11A at Mackay Road, to be held in the custody of the court when the only claim held thereon by the applicant is the 116 condominium titles purchased by him. Clearly, this application ought to have been brought in respect of the 116 titles over which the applicant has a claim.

[12] As pointed out by counsel for the respondents, the applicant attempted to rectify the above anomaly in the affidavit in rejoinder and his counsel followed suit in their submissions. However, such a move is not feasible without amendment of the applicant's pleadings. As submitted by Counsel for the respondents, such constitutes a departure from pleadings which is prohibited under the law. It is not possible for the Court to base its decision on a matter that is not contained in a party's pleadings and over which the opposite party has had no opportunity to litigate. In addition to the legal bar against departure from pleadings, the move would also offend the provision under Article 28 of the Constitution on the right to a fair hearing.

[13] Upon the above premises, the application by the applicant cannot be sustained. It ought to have been anchored on the 116 condominium titles. Upon realizing the error in the applicant's pleading, counsel for the applicant ought to have sought for amendment of the pleadings to reflect the appropriate subject matter. For the above reasons, this application fails and is dismissed. Since the reason for non-delivery or transfer of the 116 condominium titles is still subject of litigation in the main suit, I will order that the costs of this application shall abide the outcome of the main suit.

It is so ordered.

*Dated, signed and delivered by email this 19th day of August, 2024.*

**Boniface Wamala JUDGE**