Kaye Twaha v Kigozi Ahamada (HC Miscellaneous Application No. 394 of) [2021] UGHCLD 49 (31 March 2021)

# **THE REPUBLIC OF UGANDA IN THE HIGHCOURT OF UGANDA AT KAMPALA (LAND DIVISON)**

### **MISC APPLICATION NO. 394 OF 2020**

**(Arising from land matter No. 77/2016 – Chief Magistrate's Court of Nakawa**

**at Nakawa)**

**KAYE TWAHA -------------------------------------------------------------- PLAINTIFF/APPLICANT**

**VS**

**KIGOZI AHAMADA-------------------------------------------------- DEFENDANT/RESPONDENT**

**Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

#### **RULING**

The Applicant brought this Application under Order 52 Rules 1, 2 and 3 CPR, section 218 (1) (b) (i) MCA and section 98 CPA for orders that the land matter No. 77 of 2016 pending in the Chief Magistrate's Court of Nakawa be withdrawn and transferred to the High Court of Uganda at Kampala (Land division).

Grounds for the Application

Mr. Kaya Twaha, the Applicant, swore an affidavit in support of this application. He filed the suit in the Chief Magistrate's court of Nakawa in his capacity as a beneficiary of the estate of his late father, Adam Kibuuka Siyetta against the Respondent. The cause of action was trespass on the untitled property of his late father. I gathered from his averments that the most pertinent ground for this application is that during the course of the main suit in the Chief Magistrate's court, the land, the subject matter of the suit, was converted from a Kibanja to registered land.

On the 9th May 2017, a lease offer was made by Buganda Land Board to the administrators of the estate of the late Adam Kibuuka Siyetta for the property comprised in Plot 40-42 Mbuya at Kireka Road Area measuring 1.003 hectares. The basic value of the land as assessed by the Buganda Land Board was approximately total of UGX 104, 665, 200 [ Uganda Shillings One Hundred Four Million Six Hundred Sixty-five Two Hundred].

The Administrators are the current registered proprietors of the suit land and have expressed their desire to join the Applicant in defending the suit land against the Respondent. Since the value of the suit land was above the pecuniary jurisdiction of the Chief Magistrate's court, this application to transfer the suit to this court was instituted.

Mr. Ahmed Kasasa Ssalongo swore a supplementary affidavit in support of this application averring that the value of the suit property was UGX 100,000,000/=. He added that he and the other administrators of the estate of the late Adam Kibuuka Siyetta were prepared to join the head suit to defend the deceased's estate.

#### Respondent's Reply

Mr. Kigozi Ahmed, the Respondent opposed the main ground of this application and averred that the cause of action is not in respect of the whole Plot 40-42 Mbuya at Kireka Road but rather for a corridor between himself and the Applicant. The Respondent averred that the small corridor's value is approximately UGX 20,000,000/=. This was indicated by the joint survey carried out by Mr. Waseni George. He therefore prayed this application be dismissed and the suit be allowed to proceed before the Chief Magistrate's court.

## Rejoinder by Applicant

According to the Applicant, the corridor under dispute forms part of the now titled suit property and the Defendant's trespass on it affects the entire plot. He added that Mr. Waseni George botched the survey report and his impugned actions in the lower court are currently the subject of an ongoing complaint filed by the Applicant to the Surveyors' Registration Board. The summoning letter was attached and marked Annexure, 'E'.

Mr. Twaha concluded by averring that the corridor in dispute cannot be severed from the suit land and reiterated his earlier prayers.

#### **Issue**

# **Whether the Applicant ought to be granted leave to transfer Land Matter No. 77 of 2016, presently at Nakawa Chief Magistrate's court, to this court?**

The Magistrates Courts Act Cap 16 section 218(1)(b)(i) provides as follows;

## **218. Power of High Court to withdraw and transfer cases**

**(1)**

**On the application of any of the parties and after notice to the parties and after hearing such of them as desire to be heard, or of its own motion without that notice, the High Court may at any stage—**

**(a)-**

**(b) withdraw any suit or other proceeding pending in any magistrate's court, and—**

**(i) try or dispose of it;**

This section of the law does not provide for the circumstances under which this court may transfer cases but as with all lawful processes, the court must act judiciously in arriving at its decision. To achieve this, I restricted myself to the copy of the plaint attached to the application and examined it in relation to the events that had transpired since the filling of the suit on the 29th December 2016 which had prompted the Plaintiff/ Applicant to make this application.

The Applicant's contention is that the status quo in Civil Suit No. 77 of 2016 changed the moment the administrators of the estate of the late Adam Kibuuka Siyetta got registered thereon as proprietors. While there is a copy of a lease offer, attached to the affidavit in support, this court was not availed with the leasehold title to demonstrate that the land holding had changed from a Kibanja to titled land. Mr. Ahmed Kasasa Ssalongo under paragraph 3 of his supplementary affidavit in support of this application averred that the title was procured in 2017, but this title was not attached to prove its existence. This oversight was problematic. Its absence made it impossible for this court to establish a nexus between the Kibanja referred to in Civil Suit 77 of 2016 and the leasehold property, the subject of the lease offer made by the Buganda Land Board, to the administrators of the estate of the late Adam Kibuuka Siyetta.

I find that the applicant failed to demonstrate that the status quo of the subject matter had changed to the land described in the lease offer. This court could therefore not rely on the lease offer to conclude that the value of the subject matter had changed as a ground for allowing this application.

Turning to the issue of the 'botched survey report', the applicant has stated that he filed a complaint before the Surveyor's registration board challenging it. I am unable to make any decision on whether or not the survey report was rightly admitted by the trial court. Such an action, in my view, would be prejudicial.

It is a fact that the High Court Land Division is notoriously overwhelmed with backlog with several new matters filed daily. Section 218 (1)(b)(i) of the Magistrates' courts Act should therefore be employed sparingly, in those cases where, in the court's view, not to grant the application, would amount to a miscarriage of justice.

Hearing in Civil Suit 77 of 2016 has commenced. The Applicant in this matter chose that court as his forum of choice. He has not demonstrated that the status quo has changed in terms of pecuniary jurisdiction to justify the transfer of the suit to this court. If he wishes to make changes in his Plaint, for the better prosecution of his suit, the same may be achieved by way of amendment under the Civil Procedure Rules.

### **In conclusion, I dismiss this application and order as follows;**

- **1. Leave to transfer Land Matter No. 77 of 2016, presently at Nakawa Chief Magistrate's court, to the High Court Land Division is denied.** - **2. Costs of the Application shall be in the cause.**

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**Olive Kazaarwe Mukwaya JUDGE 31st March 2021 Delivered by email to Counsel for the parties.**