Korutaro v The Commissioner Land Registration & Another (Miscellaneous Application 115 of 2022) [2023] UGHCCD 392 (13 November 2023)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

## [CIVIL DIVISION]

### **MISC. APPLICATION NO. 115 OF 2022**

KORUTARO ROBERT MUHEREZA ===================== APPLICANT

#### VERSUS

- 1. THE COMMISSIONER LAND REGISTRATION - 2. THE ATTORNEY GENERAL ================= RESPONDENTS

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

## **RULING**

This application is by notice of motion under section 98 of the CPA, section 33 of the Judicature Act, rule 3(1) (2) 4 and 6 of the Judicature (Judicial Review) Rules 2019 as amended, section 91(10) of the land act seeking for orders that; -

- *1. Time within which to file an application for judicial review be extended.* - *2. Costs of this application be provided for.*

The application is supported by the affidavit of **Korutaro Robert Muhereza** the applicant whose details are on record but briefly states that; -

- 1. I was the registered proprietor of the land comprised in Bulemezi Block 919 Plot 11 land at Bulemezi until the 24th of May 2022 when I got to know that my title was cancelled while we were in court hearing CS No. 9 of 2007. - 2. I was never informed of the reason for cancelled my title and due process stated under section 91(10) of the Land Act, section 176 and 177 of the RTA were not followed. - 3. I got to know about this cancellation of my title on 24th May 2022 yet the cancellation took place in 2017 and I was not aware of the facts and proceedings relating thereto. - 4. The application has been made in 13 days from the time when I got to know of the impugned cancellation. - 5. I intent to file an application challenging the decision of the 1st Respondent and the same has high chances of success.

In reply, the Respondents opposed the application and in an affidavit sworn by **Ssekibira Moses** a registrar of titles and staff of the 1st Respondent whose details are on record briefly states that; -

- 1. The 2nd Respondent invited all the parties concerned including the applicant for a public hearing on 27th September 2016 in respect of the suit land comprised on Bulemezi Block 919 Plot 11 at Bujogobya. - 2. On 10th day of February 2017 the 2nd Respondent made a decision to amend the register. - 3. The Applicant did not file a judicial review application within 3 months from the date of the decision aforementioned as prescribed by law. - 4. The application is bad in law and an abuse of court process as there is already a pending Civil Suit No. 9 of 2007 in the high court of Luwero wherein the Applicant is a party however, they filed this application in this court instead of Luwero. - 5. There is no merit in the intended application for judicial review.

In rejoinder the applicant insisted that he was never aware of any proceedings or decision concerning his land. that this application was filed in June 2022 before civil suit No. 9 of 2007 was transferred from family division to Luwero High Court.

## **Legal representation.**

Mr. Frank Twongyeirwe together with Mr. Mugisha Akleo represented the applicant while Mr. Achellam Emmanuel represented the Attorney General.

At the hearing, both parties agreed to file written submissions which they did and their details are on record.

Counsel for the applicant in his written submissions raised 2 issues for court's determination to wit; -

- *1. Whether the applicant has good cause for court to extend the time for filing an application for judicial review?* - *2. What remedies are available to the parties?*

## **Submissions by counsel for the Applicant.**

## **Issue No. 1**

## *Whether the applicant has good cause for court to extend the time for filing an application for judicial review?*

Counsel submitted that rule 5(1) of the Judicature (Judicial Revie) Rules 2009 provides that an application for judicial review has to be brought within three (3) months from the date when the grounds of the application first arose unless the court considers that there is good reason for extending the period within which the application will be made.

Counsel referred to the case of **Dott Services Limited & Anor Vs Attorney General MC No. 133 of 2016** where court held that; -

*"The rule gives this court allowance to exercise discretion to extend time in favor of the applicant where court considers that there is good reason for extending the period within which the application shall be made. Court's discretion to extend time must be exercised judiciously and based on good reasons and this depends on the circumstances of a given case".*

Counsel submitted that the applicant contends that he was the registered proprietor of land comprised in Bulemezi Block 919 Plot 11 land at Bulemezi, while the 1st Respondent made a decision cancelling the said title on 10th February 2017 which decision the applicant only got to know about on 24th May 2022 during hearing of High Court Civil Suit No. 09 of 2007. He contended that he was never heard before his title was cancelled.

Counsel referred to the case of **Sadhudin Valimohamed Vs Departed Asians' Property Custodian Board & 3 others** where court held that; -

*"Lack of knowledge of the decision is a strong factor influencing the court's decision whether an extension of time for bringing the application for judicial review should be granted".*

#### **Issue 2**

#### *What remedies are available to the parties?*

Counsel submitted that this court be pleased to grant the applicant an order extending time within which to file an application for judicial review by challenging the impugned decision of the Respondent.

#### **Submissions by counsel for the respondents.**

#### **Issue No. 1**

## *Whether the applicant has good cause for court to extend the time for filing an application for judicial review?*

Counsel submitted that to grant extension of time, the court must be satisfied that there is good reason to extend the time, good reason or good cause depends on the circumstances of each case. Under the law good or sufficient reason must relate to the inability or failure to take particular steps in time. He referred to the case of **William Odoi Nyandusi Vs Jackson Oyuko Ksendi CACA No. 32 of 2018.**

Counsel referred to the case of **Tight Security Ltd Vs Chartis Uganda Insurance Co. Ltd & Anor HCMC No. 6 of 2014** where court held that for an application of this kind to be allowed the applicant must show good cause that justifies the grant of the order to file the application out of time.

Counsel submitted that the applicant did not advance sufficient reason for not knowing about a cancellation of title which happened 5 years ago.

#### **Issue No. 2**

#### *What remedies are available to the parties?*

Counsel prayed that the application be dismissed with costs to the Respondent.

## **Analysis of court.**

## **Issue No. 1**

## *Whether the applicant has good cause for court to extend the time for filing an application for judicial review?*

The time within which to file an application for judicial review is stipulated under the Rule 5(1) of the Judicature (Judicial Review) rules 2009 as amended which provides that; -

## *"the application shall be filed within three months from the date when the grounds of the application first arose".*

The rationale behind a limitation within which to file applications for judicial review is that these matters usually affect public interest and public affairs, and therefore should be heard and resolved expeditiously. Likewise, a person who claims to be aggrieved by a decision of a public officer with grounds for judicial review should not have to wait a long time to bring such an application as the delay further affects public affairs. *See MA No. 48 of 2020 Dr. Pariyo Bonane Godfrey Vs Dr. Nathan Onyanch, Health Service Commission and Attorney General.*

To fulfil the foregoing, the law allows for extension of time where court considers that there are sufficient reasons for extending time within which to file an application for judicial review. This is intended to protect the rights of the Parties who are aggrieved and have grounds for the remedy of judicial review as well as public interest since decisions of public officers are generally matters of public interest.

## In the case of **Hadondi Daniel vs Yolam Egondi Court of Appeal Civil Appeal No 67 of 2003** court held that;

*"it is trite law that time can only be extended if sufficient cause is shown. The sufficient cause must relate to the inability or failure to take necessary step within the prescribed time. It does not relate to taking a wrong decision. If the applicant is found to be guilty of dilatory conduct, the time will not be extended."*

The starting proposition is that time does not start to run before the challenged decision is communicated to the Applicant/the affected party. **See Anup Singh Choudry v Attorney General (HCT-00-CV-MC-0057-2012)**

In the instant case the Applicant stated that he was prevented from filing his application for judicial review within time because he was not aware of the decision of the Respondent cancelling his certificate of title. He stated that he only got to know of the cancellation on 24th May 2022. It is a settled principle of law that lack of knowledge of a decision is a strong factor influencing court's decision whether an extension of time to bring the application for judicial review should be granted.

Whereas the Respondent stated that parties with interest were invited for public hearing, there was no evidence adduced to show that the said notice of hearing was served and received by the applicant.

The respondent did not adduce evidence to show that it communicated the decision to the Applicant. Where an adverse decision has not been communicated to the affected party constitutional principle may require that no action may be taken in reliance on that decision, for the reason that the claimant would not have had the opportunity to challenge the decision in the courts or elsewhere. **See** *Judicial Review 8th ed by The Rt Hon. Lord Woolf, Sweet & Maxwell, 2019*

From the above analysis, it is this court's finding that no evidence was adduced to show that the applicant was invited for the public hearing on 27th September 2016 and the subsequent decision made 10th February 2017 was ever communicated to the applicant. This amounts to good reason for extension of time within which to file an application for judicial review.

Issue No. 1 is resolved in the affirmative.

## *Issue No. 2*

#### *What remedies are available to the parties?*

Since the applicant has advanced sufficient reasons as to why an application for judicial review was not filed within time, this application succeeds.

### **Conclusion.**

In the final result, this application is granted with the following orders; -

1. An order for extension of time within which to file for judicial review is hereby granted.

- 2. The applicant is given 15 days from the date of this ruling to file his application for judicial review. - 3. Considering the nature and circumstances of this application, no order as to costs.

Dated, signed, sealed and delivered by email this **13th** day of **November 2023.**

Emmanuel Baguma

Judge