Kanshabe v Nyiro & 2 Others (Miscellaneous Application 170 of 2022) [2023] UGHC 360 (26 April 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA LAND DIVISION MISC APPLICATION NO. 170 OF 2022 ARISING FROM CIVIL SUIT NO. 23 OF 2018 (FORMERLY HIGH COURT NAKAWA, CIVIL SUIT NO. 154 OF 2009).**

**RONALD KANSHABE :::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

- **1. NYIRO JOSEPH T/A TASK ASSOCIATES** - **2. KABUYE PADDY** - **3. COMMISSIONER LAND REGISTRATION :::::::::: RESPONDENTS**

*Before; Hon Justice Victoria Nakintu Nkwanga Katamba*

#### **RULING**

### **Background**

In 2009, the Applicant sued Twaibu Kamya, Mary Nanono, Segona Charles, George Atwijukire and Another in Civil Suit No. 154 of 2009 for declarations of ownership in respect to lands comprised in Block 75 Plots, 158, 159,160, 161, 162, 163, 164, 165 and 166. The Defendants in the suit raised a counterclaim.


Unbeknownst to the Plaintiff, the said suit was fixed for hearing, and the dismissed. The counter claim, proceeded *ex parte* as against the Applicant, and judgment entered on the **31st day of May, 2013**.

Following and as a result of the *ex parte* judgment, execution proceedings were commenced, vide **HC EMA NO. 2752 OF 2013,** and the Defendants/Counterclaimants applied for execution by way of attachment and sale of the Applicant's property comprised in **Kabula Block 76 Plots 823, 684, 688 and 204 at Lyantonde.**

From the said Execution proceedings, the 1st Respondent, acting as a bailiff of court, sold the property comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, the suit Property to the 2nd Respondent. The Applicant, contends that the said attachment, sale and transfer was in contravention of the law, illegal, tainted with grave irregularities, and should be set aside, nullified and orders of restitution granted, hence this Application.

The application was brought by way of Notice of Motion, seeking orders that**;**

> **a) An order setting aside, nullifying and or of cancellation of the sale of property comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, vide**


**Execution Misc. Application No. 2752 of 2013 by the 1st Respondent to the 2nd Respondent.**

- **b) A consequential order that the special certificates of title created in Respect property comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, be cancelled and or revoked.** - **c) A consequential order of restitution, that the Applicant be reinstated as the registered proprietor on the Duplicate Certificates of title for the property comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde.** - **d) Costs of this Application.**

The grounds upon which the application is based are that:

- i) The attachment and sale of property known as Kabula Block 76 Plots 823,684 and 688 land at Lyantonde by the 1st Respondent to the 2nd Respondent was done in contravention of the law and is illegal. - ii) The process of execution and sale of the suit property was and is tainted with material irregularities and illegalities. - iii) The order of court made on the 31st day of May, 2013 by the learned Lady Justice Faith Mwondha from which EMA No.2752


of 2013 arose was set aside by His Lordship Eudes Keitirima, and as such there was no legitimate sale and purchase of the suit property.

- iv) The Applicant is entitled to the benefit of the order setting aside the sale and purchase by the 2nd Respondent and having his name reinstated on the duplicate certificate of title. - v) It is just and equitable that the court grants the orders prayed for.

The above grounds are supported by the affidavit of the Applicant Ronald Kanshabe sworn on the 29th of August, 2022.

The Application and attendant affidavit were filed in this court on 30th August, 2022 and returned on 1st September, 2022. It was served on the 3rd and 1st Respondents on 15th September, 2022 and 29th September, 2022 respectively. Both the 1st and 3rd Respondents acknowledged receipt of service. The 2nd Respondent was served by substituted service in the Bukedde Newspaper of 25th November, 2022 at page 32 and on the Court Notice Boards at Lyantonde on 24th November, 2022 and at Masaka on 28th November, 2022. None of the Respondents filed replies to the application and the averments in the affidavit in support of the application remain uncontroverted. The court being satisfied that the Respondents were duly served, allowed the Application to proceed *ex parte.* Refer to **Samwiri Massa Vs Rose Achen (1978) HCB 297**,)where Justice Ntagoba, held that *"where facts are sworn in an affidavit and they are not*


*denied or rebutted by the opposite party, the presumption is that such facts are accepted".*

# **Representation:**

**The application was presented by Mr. Kato Fred.**

# **Issues for Determination:**

- *i) Whether there is sufficient cause to set aside, nullify and or cancel the sale of property comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, vide Execution Misc. Application No. 2752 of 2013 by the 1st Respondent to the 2nd Respondent?* - *ii) What are the remedies available?*

# **Arguments of Counsel for the Applicant:**

The gist of Counsel's arguments is that that the execution, attachment, sale and eventual transfer and registration were all in contravention of the law, and tainted with material illegalities, and irregularities, sufficient to warrant the setting aside, nullification and or cancellation of the same.


That the sale of immovable property, such as land, under execution is provided for and rooted in **Section 48 of the Civil procedure Act, Order 22 rules, 51, 62, and 63, of the Civil Procedure Rules (CPR).**

The law sets out an elaborate procedure for the sale of immoveable property in the Civil Procedure Act and the Rules thereunder. Under Section 48(1) of the Civil Procedure Act and Order 22 rule 51(1) of the CPR, the duplicate certificate of title or special certificate of title has to be deposited in court before the sale. **This provision is mandatory.** Under subsection 2, the court ordering the sale has power to order the judgment debtor, in this case the Applicant, to deliver up the duplicate certificate of title to the property to be sold or to appear and show cause why the certificate of title should not be delivered up. Sections 48(3) and (4) lay down the procedures to follow in case the Judgement debtor has not complied with the order.

Counsel submits that at the time of the purported sale on the 10th February 2014, neither the duplicate certificates of title nor their special certificates of title for the applicant's property comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, had been deposited in court contrary to sections 48(1), (2) (3) and (4) of the Civil Procedure Act which is mandatory. Further that the sale and eventual transfer of the suit land by the 1st Respondent to the 2nd Respondent, was through a process of court, premised on an *ex parte* judgment, execution commenced, and the

Applicant's property in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, were attached, and sold.

He set out the process under which the impugned attachment and sale took place. That on the 7th day of February,2014, Court ordered that special certificate of title be issued in respect of the properties.

Before the duplicate certificates of title to the property, and or their respective special titles, were deposited in court, as by law mandated, the 1 st Respondent on the 10th day of February,2014 sold the properties to the 2 nd Respondent.

In the sale agreement and under clause 4 thereof, the property was sold on the term that the certificates of title were in the possession of the judgment debtor, the applicant herein.

That at no time prior to the sale were the certificates of title deposited in court and in March 2014, the 1st Respondent applied for Special Certificates of Title which were issued in April, 2014 after the sale had been conducted.

Noncompliance with the mandatory legal requirement for the titles to be deposited in court renders the sale illegal, null and void.

Counsel relied on a number of authorities including **Sinba (K) Ltd & Ors v. Uganda Broadcasting Corporation SCCA No. 3 of 2014**; **Rosemary Elenaor Karamagi v. Angoliga Malimound Misc. Application No. 733**


**of 2005 arising from H. C. C. S No. 1018 of 2004**; **Grace Ofwono Vs Poland Uganda Ltd, Misc. Application No. 699 of 2015**; **Kibuuka Nelson & Anor vs Yusuf Ziiwa, H. C. Misc. Applications No. 72 and 225 of 2008** to mention but a few, to buttress his position and asked this court to set aside, nullify and or cancel the sale of property comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, vide Execution Misc. Application No. 2752 of 2013 by the 1st Respondent to the 2nd Respondent, with the resultant and or consequential order that the special certificates of titles created over the said properties, comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, be revoked, or cancelled, and that the Applicant's names be reinstated as the registered proprietor on the Duplicate Certificates of title to the said property.

### **Determination of the Court:**

*I. Whether there is sufficient cause to set aside, nullify and or cancel the sale of property comprised in Kabula Block 76 Plots 823, 684, and 688 land at Lyantonde, vide Execution Misc. Application No. 2752 of 2013 by the 1st Respondent to the 2nd Respondent?*

I have seen the Decree in Civil Suit No.154 of 2009 in annexure A, in which judgment was entered for the Counter Defendants, the Respondents herein. I have also seen the Application for Execution of Decree dated 20th

 December, 2013 in annexure B to the applicants' affidavit in support of the Application as well as the Warrant of Attachment and Sale of immoveable Property dated 24th January, 2014. Indeed, by letter dated 10/02/2014 Task Associates wrote to the Deputy Registrar of the High Court in the Execution and Bailiffs Division informing him that the property in Block 76 Plots 823,684 and 688 at Lyantonde was sold to Kabuye Paddy on the 10th day of February, 2014. Interestingly, Court recognized on the 7th day of February, 2014, before the sale had been conducted on the 10th day of February, 2014 that the property had been sold to Kabuye Paddy and that the Defendant who had not been party to the proceedings had withheld the Duplicate Certificate of Title to the said land. The Deputy Registrar, the learned Henry Twinomuhwezi then went ahead and ordered the issuance of a special certificate of title for land in Kabula Block 76 Plot 823, 684 and 688 to allow the transfer into the names of the Purchaser and the Registrar of Titles was ordered to effect the order. Suffice to note that no sale agreement had been entered into at the time the orders of 7th February, 2014 were made. The Agreement for Sale of Land at Execution was made on the 10th day of February, 2014 and yet the order recognized a sale to Kabuye Paddy. The chronology of events is suspicious and smacks of the deliberate intention to unscrupulously deprive the judgment debtor of his property.

The law on sale of immovable property through court is set out in Section 48 of the Civil Procedure Act which provides as follows:


**Duplicate Certificate of title to Immoveable Property to be lodged before Sale**

**1. The court may order, but shall not proceed further with the sale of any immovable property under a decree of execution until there has been lodged with the court the duplicate certificate of title to the property or the special certificate of title mentioned in subsection (4)**

**2. The Court ordering such sale shall have power to order the judgment debtor to deliver up the certificate of title to the property to be sold or to appear and show cause why the certificate of title should not be delivered up.**

**3. Where the court is satisfied that a judgment debtor has willfully refused or neglected to deliver up such certificate when ordered to do so, the court may commit him or her to prison for a period not exceeding thirty days.**

**4. If the Court is satisfied that such duplicate certificate of title has been lost or destroyed or that the judgment debtor cannot be served with an order under this section or is willfully withholding such certificate, the court shall call upon the Registrar of Titles to issue a special certificate as prescribed by the Registration of Titles Act.**


As already stated, the sale and eventual transfer of the suit land by the 1st Respondent to the 2nd Respondent, was through a process of court, premised on an *ex parte j*udgment. On the 24th day of January, 2015, a warrant of attachment and sale of immovable property was issued to Nyiiro Joseph Erisa, Court Bailiff. On 7th February, 2014, an order recognizing a sale to Kabuye Paddy was made by the Deputy Registrar. The Property was then sold by Public Auction to Kabuye Paddy on the 10th day of February, 2014, two days after the orders recognizing his purchase had been made. In the said court order of 7th February, 2014, it was stated that the Defendant had withheld the Duplicate Certificate of Title and the Registrar of Titles was ordered to issue a Special Certificate of Title. An application for a special certificate of title was then made to the Registrar of Titles on the 12th day of March 2014. Clearly, the sale took place before the duplicate certificate of title or special certificate of title had been deposited in court. Nowhere in the proceedings is it indicated that the judgment debtor was ever required to deposit the duplicate certificate of title in court. The order of 7th February, 2014 states in clause 3 that the Judgment debtor withheld the Duplicate Certificate of Title. The said Civil Suit No.154 of 2009 proceeded ex parte. There is no evidence whatsoever that the Applicant herein was aware of the events taking place and in fact he states in his uncontroverted affidavit that the execution proceedings took place without his knowledge or ever being served. The failure to serve the judgment debtor with the order of


attachment and sale as well as the omission to order the judgment debtor to deposit the duplicate certificate of title were a contravention of Section 48 of the Civil Procedure Act. Notice to show cause why the title should not be delivered was never issued. Nothing was done as required under the law.

The Supreme Court in **Sinba (K) Ltd & Ors v. Uganda Broadcasting Corporation SCCA No. 3 of 2014** cited with approval in **Rosemary Elenaor Karamagi v. Angoliga Malimound Misc. Application No. 733 of 2005 arising from H. C. C. S No. 1018 of 2004**, in which Justice Geoffrey Kiryabwire, as he then was, at page 6 stated that "it is clear that the law sets out an elaborate procedure for the sale of immovable property. It would appear to me that the basic procedure where property has been ordered for sale would be for the Registrar of court to order the duplicate certificate to be delivered up to court. This order would have to be put in writing…. He continues "where the judgment debtor has the duplicate certificate of title and willfully refuses to surrender it, then after a notice to show cause has been issued, the judgment debtor, can be committed to prison for a period not exceeding 30 days."

In **Grace Ofwono Vs Poland Uganda Ltd, Misc. Application No. 699 of 2015**, where in a similar scenario, the sale was conducted before the deposit of title in court, the court interpreted the effect of section 48 of the Civil Procedure Act, and stated that Court shall not proceed with the sale before the title has been deposited and held that*, "..this was an act of non-*


*compliance with and grave contravention of a very clearly mandatory provision of law, on how a sale of immovable property under execution should be carried out*". The court in this matter relied on the Kibuuka Nelson & Anor vs Yusuf Ziiwa, H. C. Misc. Applications No. 72 and 225 of 2008.

And in **Kibuuka Nelson & Anor vs Yusuf Ziiwa, H. C. Misc. Applications No. 72 and 225 of 2008,** Bamwine J. as he then was, relying on the authority of James Kabateraine vs Charles Oundo & Anor, HCCS No. 177 of 1994, reported in [1996] 1 KALR 134, held, "*that since the sale of the property attached under execution had been done without first having the duplicate certificate of title delivered in Court, 'the purported sale was no sale in law but a nullity'; hence, the Court had the mandate to declare the sale invalid and make an order for restoration. On the effect of proceedings or acts, which are a nullity, the learned judge cited the case of Macfay vs United Africa Co. Ltd. [1961] 3 All E. R. 1169, where the Court clarified that: – "If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null, and void, without more ado, though it is sometimes convenient to have the Court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse."*


Clearly the sale of the suit property in this case was done in total contravention of the law as set out in Section 48 of the Civil Procedure Act. The duplicate certificate of title was never deposited in court nor was the judgment debtor ever required to deliver it. The application for a special certificate was made in March 2014 almost two months after the sale had taken place. Consequently, this court finds that the sale was illegal and void ab initio.

Remedies:

In **Makula International Ltd v. His Eminence Cardinal Nsubuga & Anor (1982) HCB 11** it was held that a court of law cannot sanction what is illegal and illegality once brought to the attention of court overrides all questions of pleadings, including any admissions made thereon. In **Sinba (K) Ltd (supra),** court relied on **Kanoonya David v. Kivumbi & 2 Ors HCCS No. 616 of 2003 (unreported)** for the principle that "an illegality vitiates the transfer of title with the result that the sold property remains the property of its owner. In this case the property cannot vest in the owner and at the same time vest in the purchaser the 2nd Respondent.

In **Rosemary Eleanor Karamagi (supra)** at pages 10 - 11, Justice Kiryabwire quoted **James Kabaterine v. Charles Oundo & Anor HCCS 177 of 1994** where Justice Mpagi-Bahigeine, as she then was, held that "... an execution has been held to be irregular when any of the requirements of the rules of court or parties for the time being have not


been complied with. When execution has been irregularly executed the court is enjoined to make an order of restoration."

The principles in these cases apply to this case. The illegalities and irregularities demonstrated above vitiated the sale to the 2nd Respondent and the suit property remained the property of the Applicant.

Further, in the interest of justice, the ex parte judgment of the learned Justice Faith Mwondha dated 3rd July,2013 from which the execution proceedings were drawn, having been set aside it naturally follows that the sale and transfer from the said execution were a nullity and cannot stand. For clarity, they are hereby set aside.

The Application is therefore allowed with costs in the following orders and declaration:

1. The sale and transfer of land comprised in Kabula Block 76, plots 823,684 and 688 land at Lyantonde vide Execution Misc. Application No.2752 of 2013 by the 1st Respondent to the 2nd Respondent was illegal, null and void ab initio.

2. The Commissioner Land Registration is hereby ordered to cancel the special certificates of title created in respect to property comprised in Kabula Block 76 Plots 823,684 and 688 land at Lyantonde and issued to the 2nd Respondent, Kabuye Paddy.


3. The Commissioner Land Registration is hereby ordered to restore ownership of land comprised in Kabula Block 76 Plots 823, 684 and 688 land at Lyantonde to the Applicant, Kanshabe Ronald and to register him as proprietor on the Duplicate Certificates of Title.

4. The Applicant is awarded costs of the Application.

I so order.

Victoria Nakintu Nkwanga Katamba

Judge.

26th April, 2023.