Kiwanuka & Another v Microfinance Support Centre Limited & Another (Miscellaneous Cause 35 of 2024) [2025] UGCommC 6 (27 January 2025)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## [COMMERCIAL DIVISION]

# **MISCELLANEOUS CAUSE NO. 0035 OF 2024**

[ARISING FROM COURT OF APPEAL CIVIL APPEAL NO. 159 OF 2014] 1. IMAM KIWANUKA

# **2. AISHA KIWANUKA:::::::::::::::::::::::::::::::::::**

#### VERSUS

# 1. MICROFINANCE SUPPORT CENTRE LTD

# 2. COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI**

#### **RULING ON PRELIMINARY OBJECTION**

This application was brought by notice of motion under section 177 of the Registration of Titles Act (RTA), section 98 of the Civil Procedure Act (CPA) and Order 52 rules 1, 2 & 3 of the Civil Procedure Rules (CPR) for consequential orders that:

- a) An order directing the $2^{nd}$ respondent to cancel the 1<sup>st</sup> respondent's mortgage on the applicants's land comprised in Busiro Block 338 plot No. 210 land at Kawatule, Kyengera from the register book, - b) An order directing the 1<sup>st</sup> respondent to hand over the certificate of title for land Comprised in Busiro Block 338 plot No. 210 land at Kawatule, Kyengera to the applicants, - c) Alternatively, but without prejudice, an order directing the $2^{nd}$ respondent to issue the 1<sup>st</sup> Applicant a special certificate of title in respect of land comprised in Busiro Block 338 plot No. 210 land at Kawatule, Kyengera upon cancelling the mortgage. - d) The costs of the application be provided for.

This application was supported by the affidavits of the two applicants and opposed by the affidavit of Winner Karungi for the 1<sup>st</sup> respondent.

$1 \mid P \text{ a g e}$

#### **REPRESENTATION**

The applicants were represented by M/s KGN Advocates whereas the 1<sup>st</sup> respondent was represented by M/s Kalikumutima & Co. Advocates.

#### **BACKGROUND**

The 2<sup>nd</sup> applicant filed Miscellaneous Cause No. 21 of 2013 in the Commercial Division of the High Court for review of the mortgage lodged on Busiro Block 338 plot No. 210 land at Kawatule, Kyengera and the same was not granted.

The 2<sup>nd</sup> applicant appealed against the decision of the High Court vide Civil Appeal No. 159 of 2014 and the Court delivered its judgment on the 14<sup>th</sup> April 2023 and declared that the mortgage in respect to Busiro Block 338 plot No. 210 land at Kawatule, Kyengera was void due to lack of spousal consent. The Court did not make any further orders and thus the applicants filed this suit.

#### **DECISION**

During the hearing of this case, the 1<sup>st</sup> respondent raised two preliminary objections to wit:

1. This court lacks jurisdiction to grant consequential orders from the judgment of the court of appeal and,

## 2. This application was instituted under a wrong procedure as a miscellaneous cause when it arises from a civil appeal.

Both parties were directed to file written submissions which hav been considered by this court in reaching.

#### **Preliminary Objection 1:**

## This court lacks jurisdiction to grant consequential orders from the judgment of the Court of Appeal

The applicants sought to rely on section 161 of the Registration of Titles Act (RTA) to argue that this Court has the jurisdiction to grant consequential orders.

The 1<sup>st</sup> respondent submitted that the jurisdiction conferred on the High Court in respect to section 161 of the RTA only relates to proceedings relating to recovery of land from the person registered as proprietor and that the proceedings must either be of this court or a lower court where the grounds of cancellation of the certificate of title have been established.

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Section 161 of the Registration of Titles Act Cap 240 provides that:

"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 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 gives the High Court powers to order cancellation of titles, entries or memorial in the register book.

In the instant case, the Court of Appeal pronounced itself and held that the mortgage in respect to Busiro Block 338 plot No. 210 land at Kawatule, Kyengera was void due to lack of spousal consent. The Court of Appeal did not make any further orders as to the cancellation of entries made to the certificate of title. It is true that by virtue of the orders of the Court of Appeal, the $2<sup>nd</sup>$ respondent has an interest in the land in question.

The question which therefore needs to be answered is whether the High Court has jurisdiction to grant consequential orders from the decisions of the Court of Appeal.

Section 11 of the Judicature Act Cap 16 provides that:

"To hear and determine an appeal, the Court of Appeal shall have all the powers, authority and jurisdiction vested under any written law in the court from the exercise of the original jurisdiction of which the appeal originally emanated''

This therefore means that while the Court of Appeal was determining the appeal in the instant case, it was clothed with the powers, authority and jurisdiction vested under any written law (including section 161 of the RTA) in the High Court from which this appeal emanated and as such had all the powers to grant consequential orders resulting from its judgement.

The power to make consequential orders therefore lay with the Court of Appeal which determined the appeal and found that the mortgage entered on the suit land was void due to the failure to obtain spousal consent.

I therefore find that this Court lacks the jurisdiction to grant consequential orders from the judgment of the Court of Appeal.

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This preliminary objection is sustained and it is on this ground alone that the application is dismissed with costs to the $1^{st}$ respondent.

I do not find it necessary to address the other preliminary objection raised by the $1^{st}$ respondent.

Mm Bitalie $\overline{\phantom{a}}$ HON. LADY JUSTICE ANNA B. MUGENYI DATED...................................