Kanohiri v Tumusiime & Another (Miscellaneous Application 336 of 2023) [2024] UGHC 551 (27 June 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MA-0336-2023

(Arising from MBR-00-CV-CS-038-2019)

KANOHIRI FEDDY :::::::::::::::::::::::::::::::::::

## **VERSUS**

## 1. TUMUSIIME ROVINA

## 2. THE REGISTRAR OF TITLES :::::::::::::::::: RESPONDENTS **BEFORE:** HON LADY JUSTICE JOYCE KAVUMA

## **RULING**

#### Background

This application was brought under Section 177 of the $\Box$ Registration of Titles Act and Order 52 Rules 1 - 3 of the Civil Procedure Rules. The application was seeking for the following consequential orders:

- 1. An order be made for the cancellation of the title comprised in FRV Block 3 Plot 913 land at Kakyeka, Kashari and removal of the $1$ st Respondent's name from the said title. - 2. An order directing the $1$ st Respondent to handover the said title for the above process. - 3. The register be rectified to reflect the Applicant as the registered proprietor of the land comprised in FRV Block 3 Plot 913 land at Kakyeka, Kashari. - 4. The $2nd$ Respondent be directed and order doth issue to effect the changes accordingly. - 5. The costs of the application be borne by the $1^{st}$ Respondent.

The grounds upon which the application was based were briefly $[2]$ laid out in the motion as follows:

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- 1. That the Applicant was declared by the Chief Magistrate's Court of Mbarara vide Civil Suit no. 038 of 2019 as the lawful of land situate at Kakyeka Cell, Kamukuzi ward, Kamukuzi Division, Mbarara Municipality, Mbarara District. - 2. The 1st Respondent is currently registered as the proprietor of the suit land. - 3. The 1st Respondent was declared to have been fraudulently registered on the certificate of title to the suit land as proprietor thereof in Civil Suit no. 038 of 2019. - 4. That unfortunately the decree of court declaring the applicant the lawful owner of the suit land, the court was silent on the cancellation of the title in the 1st Respondent's names for want of jurisdiction. - 5. That unless consequential orders sought herein are granted, the decree will continue to be rendered nugatory as the Applicant cannot exercise rights as the owner of the suit land. - 6. That the orders sought are intended to give effect to the decree of court made specifically in favor of the Applicant.

The application was supported by an affidavit sworn by **Kanohiri Feddy.** The application was opposed by an affidavit sworn by **Tumusiime Rovina** the 1st Respondent. There was no response from the $2nd$ Respondent. I have taken cognizance of the content of all affidavits in the matter.

#### Representation.

The Applicant was represented by M/s Twinamatsiko & Agaba $[3]$ Advocates while the 1st Respondent was represented by M/s Mwene-Kahima, Mwebesa & Co. Advocates. Both counsel addressed this court by way of written submissions which I have taken cognizance of in making this ruling.

#### Analysis and decision of court.

The following issues were raised by counsel for resolution by this $[4]$ court:

- 1. Whether the Applicant has shown sufficient reason for the grant of the orders above. - 2. What remedies are available to the parties?

Issue 1: Whether the Applicant has shown sufficient reason for the grant of the orders above.

This court may upon proper application give effect to decisions $[5]$ of the lower courts in relation to land matters where the lower courts lack jurisdiction. Applications of this kind are provided for under Section 177 of the Registration of titles Act. Section 177 of the Registration of Titles Act provides that;

> "177. Powers of High Court to direct cancellation of certificate or entry in certain cases.

> Upon the recovery of any land, estate or interest by any proceeding from the person registered as proprietor thereof, the High Court may in any case in which the proceeding is not herein expressly barred, direct the

> > Page 3 of 10

registrar to cancel any certificate of title or instrument, or any entry or memorial in the Register Book relating to that land, estate or interest, and to substitute such certificate of title or entry as the circumstances of the case require; and the registrar shall give effect to that order."

The above provision of the Registration of Titles Act bestows upon this court jurisdiction to order the Registrar to cancel any certificate of title or instrument, or any entry or memorial in register book relating to land, estate or interest upon its recovery by any proceeding from the registered proprietor and to substitute such certificate of title or entry as the circumstances of the case require.

It has become practice for Registrars to refuse to give effect to orders of lower courts in relation to certificates of title and as such successful parties have always applied to this court for consequential orders from this court to effect implementation of the orders of the lower court under the aforementioned **Section 177** of the Registration of Titles Act.

$[6]$ A consequential order is given by a court to give effect to its judgment. The order is meant to give meaning to the judgement. It is traceable or flowing from the judgment prayed for and made consequent upon reliefs claimed by the Plaintiff or Applicant. It must be incidental and flow directly and naturally from reliefs claimed by the Plaintiff or Applicant. It owes its existence to the main claim.

In the Nigerian case of Awoniyi vs Reg Trustees of AMORC (2000) 10 NWLR (Pt 676) 522, the Nigerian Supreme Court persuasively held that:

> "The purpose of a consequential order is to give effect to the decision or judgment of the Court but not by granting an entirely new, unclaimed and/or incongruous relief which was not contested by the parties at the trial and neither did it fall in alignment with the original reliefs claimed in the suit nor was it in the contemplation of the parties that such relief would be subject-matter of a formal executory judgment or order against either side to the dispute. A consequential order may also not be properly made to give to a party an entitlement to a relief he has not established *in his favour.* "[Emphasis mine]

> > **Att**

I shall be guided by the above persuasive legal positions.

#### $1.1.$ The orders sought and judgment of the lower court.

The Applicant annexed to their application a certified copy of the $[7]$ judgment of the lower court arising from MBR-00-CV-CS-038-2019 as annexure "B".

In the trial court, the Applicant was the Plaintiff, he sued the 1st Respondent for trespass onto her and having it fraudulently registered into her names. The reliefs sought were for a declaration that the Applicant herein was a the owner of the suit land and the Respondent

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was a trespasser thereon, a declaration that the Respondent had fraudulently caused the registration of the suit land into her names, cancellation of the Respondent's certificate of title, general damages, a permanent injunction against the Respondent and costs of the suit. The following were the orders made by that court in its judgment;

(a) The Respondent was declared to have fraudulently and unlawfully caused the registration of the suit land in her name. (b) The Applicant was declared as the owner of the suit land. (c) The Respondent was declared as trespasser on the suit land. (d)A permanent injunction was issued against the Respondent restraining her, her agents, or any one claiming any interest through her from interfering with the Applicant's possession of the suit land.

(e) $UGX$ 5,000,000/= was awarded as general damages to the Applicant; and,

(f) Costs of the suit were awarded to the Applicant.

The merits of the instant application require that this court **[8]** examines the orders that were sought in the lower court, the judgment, decision and declarations made by the lower court; and make a decision on whether the Applicant has made out a proper case for the grant of a consequential order.

I note that the 1st Respondent's affidavit in reply hugely challenged the merits of the trial Magistrate's decision as a basis for the opposition of the instant application. This court is not supposed to examine the merits

of the trial court findings, judgment and order as to do so would amount to sitting as an appellate court.

The orders sought in the Applicant's motion were;

#### Cancellation of the 1st Respondent's certificate of title. $1.1.$

It is not in doubt as I have laid out above that the trial court found **[9]** 1st Respondent to have fraudulently and unlawfully caused the registration of the suit land in her name.

It is the law under **Section 64** of the Registration of Titles Act Cap 230 that the certificate of a registered proprietor is indefeasible except in case of fraud. A title deed is therefore indestructible and cannot be made invalid save for specific reasons listed in the aforementioned provision of the Registration of Titles Act. (See also Kampala Bottlers vs Damanico (U) Ltd Supreme Court Civil Appeal No. 22 of 1992).

[10] I note that in **paragraph 4** of the 1st Respondent's affidavit in reply, she deposed that she had filed an appeal vide CA no.100 of 2023 challenging the orders of the trial court and that she had served the Applicant with the memorandum of appeal.

In a bid to do justice, I had HCT-05-CV-CA-0100-2023 brought to me to ascertain the truthfulness of the above deposition by the 1st Respondent.

It is indeed true as deposed by the 1st Respondent HCT-05-CV-CA-0100-2023 was filed in this court on 15th August 2023 and the memorandum

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of appeal was endorsed by the Deputy Registrar of this court on 21st August 2023.

I have to however point out that the appeal vide HCT-05-CV-CA-0100-2023 was filed close to 13 days after the Applicant had filed the instant application on 2nd August 2023 to enforce the judgment of the trial court.

It is now trite that the filing of an appeal does not connote to an $\Gamma$ automatic stay of any subsequent proceedings on the file from which the appeal arises. (See Order 43 r.4 of the Civil Procedure Rules). In Equity Bank Uganda Ltd vs Nicholas Were (High Court Misc. Application No.604 of 2013), this court while dealing with the above provision held as follows;

> "The import of this provision is that an Appel to the High" Court does not perse operate as a stay of execution of proceedings. Rather, any person who wishes to prefer an Appeal from such a decision shall institute a stay of proceedings on such sufficient cause being shown to *Court. "Sufficient cause" under the provision, leaves the* High Court with the discretion to determine whether the proceedings fall within the premises "per Elizabeth Nahamya J (RIP).

[12] The above being the correct position of the law, it therefore follows that this court could proceed and award any consequential orders from the trial court judgment that were being sought by the Applicant.

The Applicant herein, having proved to this court by way of annexure 'B' (the trial court judgment) that she successfully challenged the 1st Respondent's registration onto the certificate of title for having been obtained fraudulently, as a consequence, the $1^{st}$ Respondent is hereby ordered to hand over the said certificate of tile of land comprised in FRV Block 3 Plot 913 land at Kakyeka, Kashari to the 2nd Respondent and the 2nd Respondent is hereby ordered to effect cancellation of the name of the 1st Respondent from the certificate of title comprised in FRV Block 3 Plot 913 land at Kakyeka, Kashari.

[13] I have examined the remaining two orders being sought by the Applicant as laid out herein above, that is; the rectification of the register of Block 3 Plot 913 land at Kakyeka, Kashari to reflect the applicant as the registered proprietor of the suit land and, an order directing the 2nd Respondent to effect this change alongside the judgment and orders of the trial Magistrate in MBR-00-CV-CS-038-2019.

It is my considered view that they fall short of the orders of the learned trial Magistrate.

The grant of the said orders will amount to granting entirely new unclaimed and/or incongruous reliefs which were never contested or sought by the parties at the trial.

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This application therefore succeeds in part in as far as it relates to cancellation of the 1st Respondent's name from the certificate of title comprised in FRV Block 3 Plot 913 land at Kakyeka, Kashari. I make no orders as to costs.

I so order.

Dated, delivered and signed at Mbarara this 27th day of June 2024.

Joyce Kavuma Judge