Kassam v Commissioner for Land Registration and Another (Miscellaneous Application 524 of 96) [1997] UGHC 5 (20 February 1997)


## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAHPALA

MISC. APPLICATION No. 524/96

FEROZ KASSAM ............. ........ ... APPLICANT

#### - VERSUS -

1. THE COMMISSIONER FOR LAND REGISTRATION/ .... ... RESPONDENT REGISTRAR OF TITLES

2. MS MEERA INVESTMENTS LTD.

### BEFORE THE HOROURABLE AG. JUDGE J. SEBUTINDE

#### RULING

This Application was brought by motion under section 190 of the Registration of Titles Act (Cap. 205) and Order 48 Rule 1 of the Civil Procedure Rules for orders that:-

- "(i) The Commissioner for Land Registration/Registrar of Titles do substantiate and uphold the grounds set forth in his letter ref. LRV 220/6 dated 16/07/96 upon which he relied disallow the Applicant's to application to reinstate his caveat and de-register M/s Meera Investment Ltd; - (ii) The Commissioner for Land Registration/Registrar of Titles do reinstate the Applicant's caveats and deregister the transfers of M/s Meera Investments Ltd; and

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iii) Costs of the application be provided for."

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The application was supported by the affidavit of Feroz Kassam. The second Respondent was joined to this application pursuant to a court order under Miscellaneous Application No.658 of 1996. Several preliminary objections were jointly raised by the First and Second Respondents against this Application as follows:-

- (i) That the Applicant not being an owner or proprietor of the suit properties, has no locus standi under section 190 of the Registration of Titles Act to bring this Application; and - (ii) That the Application is fundamentally defective and incompetent because:- - It is supported by an affidavit containing $(a)$ talsehoods or inconsistencies; - The supporting affidavit contains averments that $(b)$ offend against the provisions of Or.17 r 3(1) of the Civil Procedure Rules in that the sources of information and belief are not disclosed by the deponent; and

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The annextures to the affidavit in support have $(c)$ not been securely sealed to the affidavit with the seal of the Hagistrate who commissioned the affidavit, contrary to Rule 8 or the Commissioner for Oaths (Advodates) Rules (Schedule to Cap. $53).$

Mr. Mwesigwa Rukutana, Counsel for the Applicant, opposed the objections on behalf of the Applicant on the grounds that they

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lacked merit.

Regarding the objection as to the Applicant's lack of locus standi, Mr. Rukutana contended that the Applicant being an owner of a moiety in the suit property was not a proprietor but rather an "equitable owner", who had the necessary locus standi to bring this Application. He cited no authorities in support of his contention. The Applicant's ownership in the suit properties is one of the issues in dispute in the main suit, as well as the Application. Let me begin by observing that the correct procedure in an application under section 190 of the R. T. A. is by chamber summons, with the Respondents having a right of reply, and not by motion.

Section 2 of the R. T. A. defines "Proprietor" as "meaning the owner whether in possession, remainder, reversion or otherwise, of land or of a lease or mortgage, whose name appears or is entered as the proprietor thereof in the Register Book, and such word also includes the donee of the same."

The section does not define "owner", let alone "equitable owner".

Section 190 RTA on the other hand gives the right to bring an Application such as this one to "an owner or proprietor of land."

I would tend to agree with Mr. Shonubi that the Applicant is not a proprietor or statutory owner of the suit properties in that his interest is not registered. As regards his being an "equitable owner". Mr. Rukutana submitted that proof of such ownership would be a matter of evidence in the main Application and is not a matter that can be disposed of on a preliminary point at this stage.

Having listened to Counsel on both sides on this matter, I am aware that the Applicant's "ownership" whether equitable or otherwise is fundamentally in issue, both in this Application and in the pending suit. I am of the view that the only way that ownership can be determined is by delving into the substance of the Application, especially since many of the averments contained in the affidavit in support regarding this ownership, are controverted by the affidavit in reply. In that regard I would tend to agree that the issue of the Applicant's locus standi under section 190 RTA cannot be sufficiently disposed of at this preliminary stage. I therefore overrule the first preliminary objection.

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Regarding the objection that the affidavit in support contains inconsistencies or talsehoods, there are now several authorities whereby this court has established the principle that.

"The inconsistencies in affidavits cannot be ignored however minor, since a sworn atfidavit is not a document to be treated lightly. If it contains an obvious falsehood, then it all becomes naturally suspect. An Application supported by a false affidavit is bound to fail because the Applicant in such a case does not go to court with clean hands to tell the truth." (BITAITANA & 4 OTHERS V KANANURA $[1977]$ HCB 34.)

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I have carefully perused the Applicant's affidavit in support of this Application with a view to satisfying myself whether or not there are inconsistencies or falsehoods as claimed by the Respondents.

Paragraphs 2 and 13 were cited by Mr. Shonubi as examples of falsehoods. I have already expressed my views on the Applicant's

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"ownership" which is one of the fundamental issues in this matter and I therefore would not conclude at this stage that para 2 is a falsehood. Paragraphs 12 and 13 contain references to a "wrongful dismissal" of HCCS No.150/94. Here I must agree with Mr. Shonubi that a court order is valid and lawful unless and until it has been overturned by a subsequent order of court on These references therefore, apart from appeal or review. reflecting the sentiments of the Applicant, are falsehoods in as much as they refer to an order of a competent court that has not yet been overturned, as "unlawful" or "wrongful".

The averments contained in paragraph 18 which refer to the contents of Annexture F as "evidence of collusion" have also caused me considerable uneasiness. Annexture F is a letter containing a legal opinion from the Attorney General/Minister of Justice, to the Commissioner for Land Registration. Again, whereas the terminology used in the affidavit may reflect the Applicant's sentiments and perhaps suspicions, there is nothing on the face of Annexture F to suggest collusion or impropriety on behalf or the Attorney General and as such the strong wording used in the affidavit amounts to a falsehood.

Paragraph 20 contains a statement that the removal of the Applicant's caveats was on the basis of the Attorney General's letter, Annexture F, but compared with paragraph 13 it seems the Applicant believes his caveats were removed as a result of the dismissal of HCCS No.150/94. This is an obvious contradiction or inconsistency on the face of the affidavit.

On the basis of the above findings, I would agree with $H_r$ . Shonubi that the Applicant's affidavit contains falsehoods and inconsistencies which render it incompetent.

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On the preliminary objection that the attidavit oftends against Order 17 r. 3(1) of Civil Procedure Rules the provision reads as follows:-

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" Order 17 R.3(1): Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except in interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated".

The principle is well established by this court in cases like MULIRA v BASHAMBAR DASS AND ANOTHER [1971] ULR 269, interpreting $0.17$ r. $3(1)$ that "an attidavit is of no probative value if it contains averments based on information or belief and the sources of the information and the grounds or the belief are not disclosed."

Again this court in KABWIMUKYA V KASIGWA [19/8] HCB 251, 252 established that:

"An affidavit containing matters being sworn by the Defendant based on knowledge, information and belief, should distinguish matters stated on information and belief and those to which the deponent swears from his own knowledge. Where a deponent swears an affidavit on information and belief, the source of information should be stated." Where this is not done it renders the affidavit defective and the accompanied Notice of Motion. incompetent."

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Again looking at the Applicant's attidavit especially paragraphs $16$ , 17 and 18, I am unable to tell how the Applicant came by this information especially as he does not state so and resorts to

terminology like "secret meetings", "collusion", "connivance" etc. He does not aver that he was personally present at those meetings and I cannot therefore regard the averments as being within his personal knowledge. $\pi$

Furthermore, looking through the entire attidavit there is a tendency for the deponent not to distinguish which matters are from personal knowledge, or information or belief and even if some of the averments are from personal belief, the grounds thereof are not disclosed, leaving the averments as mere suspicious or conclusion at best. I therefore agree with Mr. Shonubi that the affidavit is defective in that it offends against the provisions of $0.17$ r. $3(1)$ of the Civil Procedure Rules.

Lastly on the issue of the sealing of exhibits or Annextures to the affidavit, Rule 8 of the Schedule to the Commissioner for Oaths (Advocates) Act. (Cap.53) clearly requires that:

"all exhibits to artidavits shall be securely sealed thereto under the seal of the Commissioner and shall be marked with the serial letters of identification."

The format of the identification is also set out in the 3rd Schedule.

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Mr. Rukutana argued that these rules are not binding and that the practice amongst Advocates has not been in observance of the rule. I respectively disagree and emphasise that affidavits being special documents the contents of which are deponed to as being the truth, Court cannot take chances in doing away with the provisions of the rule quoted above which was obviously intended to protect or guarantee the probative value of the affidavit and its Annextures. If indeed such a practice does exist amongst

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Advocates, it is a shoddy practice that is unjustified and cannot be condoned by this court.

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I find that none of Annextures to the Applicant's affidavit comply with the above rule and further render the affidavit irregular and incompetent. $\overline{11}$

In conclusion I agree with Mr. Shonubi & Mr. Byaruhanga that there are irregularities in the attidavit which have rendered it incompetent and the N. O. M. being unaccompanied by a valid affidavit is incompetent and should be struck out. I so order. The costs are to be borne by the Applicant. $\mathcal{A} = \mathcal{A} \cup \mathcal{A}$

J. Sebutinde AG. JUDGE 20/02/97

Delivered at 2.30 p.m. before: Rukutana-Mwesigwa for the Applicant. Mukalazi for the 1st Respondent. Shonubi and Bjarchanga for the 2nd Respondent.

- Julio X-1, J. J. C J. Sebutinde AG. JUDGE 20/02/97