Kibirige & Another (Administrators of the estate of the late Yowana Birigwa) v Waswa & Another (Miscellaneous Cause 134 of 2024) [2025] UGHCLD 49 (14 March 2025)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA**

## **(LAND DIVISION)**

#### **MISCELLENEAOUS CAUSE NO.0134 OF 2024**

**1. KIBIRIGE KASULE VINCENT :::::::::::::::::::::::::::: APPLICANTS 2. SENFUKA KIBIRIGE CHARLES**

**(Administrators of the Estate of the Late Yowana Birigwa)**

#### **VERSUS**

#### **1. WASWA PETER**

**2. KAFEERO ISAAC ::::::::::::::::::::::::::::::::::::: RESPONDENTS**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

# *Introduction;*

- 1. The application was brought by way of Notice of motion under Section 37 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 52 rules 1, 2 & 3 of the Civil Procedure Rules for orders that; - **i)** The respondents deliver up the certificate of title for Plot 123 Block 263 Busiro at Kayunga Wakiso district to the Applicants.

- **ii)** Compensation of Ugshs 200,000,000 (two hundred million shillings) to the estate of the late Yowana Birigwa - **iii)** Costs of the Application be provided for.

## *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the 2nd applicant which briefly states as follows; - i) That the applicants are among the administrators of the estate of the late Yowana Birigwa and registered proprietors of land comprised in Busiro Block 263 Plot 123 at Kayunga, Senge, Wakiso district. - ii) That they faced a dispute which was caused by land dealers whereupon the applicants together with other administrators filed Civil Suit No.395 of 2023 and a temporary injunction application. - iii) That court issued a temporary injunction against the defendants in Civil Suit No. 395 of 2023 and the other beneficiaries lodged caveats on the said land. - iv) That the applicants together with other beneficiaries went to seek assistance from someone who can handle a land dispute, the applicants were directed to the 1st respondent

who worked with the ministry of lands housing and urban development who advised the applicants to deposit the certificate of title to the suit land.

- v) That later on, the applicants realized that the 1st respondent was negotiating with land dealers about the same land. - vi) It is on that basis that the applicants and other beneficiaries started claiming back the certificate of title from the 1st respondent who insisted that he gave the same to the 2nd respondent. - vii) That the applicants wrote a letter to the permanent secretary ministry of lands, housing and urban development, the permanent secretary indicated in his response that the certificate of title is with the 2nd respondent who is the applicant's lawyer. - viii) That the applicants wrote to the permanent secretary ministry of lands, housing and urban development stating that the 2nd respondent is not their lawyer and requested the permanent secretary to intervene, however the applicants have never gotten any response about the same.

# *Respondent's evidence;*

- 3. The application is responded to by affidavits in reply deponed by the 1st and 2nd respondents which briefly states as follows; - i) That the respondents shall raise a preliminary objection at the commencement of the hearing of this application to the effect that, the application discloses no cause of action against them and the same is an abuse of court process. - ii) That the claim of Ughs 200,000,000 as claimed in the notice of motion is unfounded in law. - iii) That the duplicate certificate of title of land comprised in Busiro Block 263 Plot 123 land at Senge was handed over to Mbogo & Co. Advocates for purposes of submission to the registrar of titles Wakiso zonal offices for implementation of the orders and decree in Civil Suit No. 395 of 2023. - iv) That the other contents of the affidavit in support are denied and the applicants shall be put to strict proof.

v) That whatever is stated herein is true and correct to the best of the knowledge of the respondents.

# *Representation;*

4. The applicants were represented by Counsel Kikomeko Swaibu of M/S Kivumbi Madinah Kikomeko Advocates & Solicitors whereas the 1st respondent was represented by Counsel Sekabira Moses from Commissioner Land Registration and the 2nd respondent was represented by Counsel Nyamate Anita of M/S Kafeero & Co. Advocates. No party filed written submissions.

# *Issues for determination;*

# **Whether the instant application is properly before this court?**

# *Resolution and determination of the issues;*

- 5. The applicants bring this cause by way of notice of motion under Section 37 of the Judicature act, Section 98 of the Civil Procedure Act and Order 52 rules 1,2 and 3 of the Civil Procedure Rules. - 6. It is the principle of law that notice of motions are used in applications and cases where the law specifically permits them as means of instituting a suit and where a statute provides for an

application to court but does not expressly provide for any special procedure, the application may usually be made by way of notice of motion*. (See; St. Benoit plantation ltd vs Jean Emile Adrien Felix (1954) 21 EACA 105).*

- 7. Despite the fact that notice of motions can be used in situations when the law is silent about the procedure, lawyers and litigants should be very vigilant in resorting to notice of motions as a mode of instituting a suit by taking into consideration factors such as the nature of evidence and the nature of the issues involved in the case. - 8. In the instant case, the applicants aver in their evidence that there are other administrators of the estate of the Late Yowana Birigwa and they are the registered proprietors to the suit land, which land was subject to a dispute and the applicants decided to seek assistance from the 1st respondent who worked with the ministry of lands and they were advised to deposit the certificate of title to the 1st respondent, the applicants further aver that them together with other beneficiaries who are not party to this application discovered that the 1st respondent was negotiating with land dealers on the subdivisions of the suit land.

- 9. The same prompted the applicants and other beneficiaries to write to the ministry of lands claiming back the certificate of title and the permanent secretary replied to the applicants that the certificate of title had been deposited with the applicant's lawyer who is the 2nd respondent, the applicants allege that the 2nd respondent has never been their lawyer. - 10. In reply the respondents deny all the allegations raised by the applicants and aver that they are to be put to strict proof of the same. Further the 2nd respondent in his evidence under paragraph 8 of his reply stated that the certificate of title was deposited to the registrar of titles Wakiso zonal office for the implementation of court orders and that the applicant's claim of Ughs 200,000,000 is unfounded in law. - 11. All these averments raised by the parties to this application are ones that cannot be determined by affidavit evidence, to have the said averments best determined by court, there's need for parties to adduce evidence, present their witnesses and have the same analyzed and scrutinized by court. All that cannot be accommodated through a notice of motion.

# 12. The supreme court of Uganda in **Re; Christine Namatovu Tibaiijjukira (1992-93) HCB 85** held that the *"Administration of justice should normally require that the substance of disputes should be investigated and decided on merits"*

- 13. The instant application raises triable issues and questions as to the nature of land dispute, who is in possession of the suit land, were the subdivisions done, who is in possession of the certificate of title to the suit land and the basis of the Ughs 200,000,000 compensations as claimed by the applicants. Such issues require a considerable amount of evidence, have all the necessary parties brought before court and hearing evidence from various sources which cannot be handled in an application of such a nature. - 14. Parties should take note that the various modes of instituting a suit are not to be used at any time as they wish, before resorting to a certain mode of commencing a suit various considerations should be looked at such as the nature of the claims in the dispute. What a party feels like is the best way to have his matter handled quickly may not be the proper and right way to have the same before court.

- 15. Further, the pending Civil Suit No. 395 of 2023 (Kibirige Kasule Vincet,Senfuka Kibirige Charles, Sebunya John, Nanfuka Leticia against Namugga Masitula Nanfuka and Namukasa Nakubulwa Florence) which is based on fraud and the subject land in the said suit is the same as in the instant application. However, the respondents herein are not party to the said suit. I am of the view that all the issues raised in the instant application would be best determined by court in Civil Suit No.395 of 2023 after having the respondents herein made parties to the said suit. - 16. In the result, it is to the finding of this court that the present application is improperly brought before this court and the same is hereby dismissed with no orders as to costs.

# **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

## **Ag. JUDGE**

# **14th/03/2025**

# **Delivered Electronically via ECCMIS on the 14th day of March 2025.**