Lubega v Mugerwa (Miscellaneous Cause 20 of 2022) [2025] UGHC 194 (18 April 2025)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISC. CAUSE NO. 020 OF 2022 (ARISING FROM MASAKA CHIEF MAGISTRATE'S COURT LAND CIVIL SUIT NO. 147 OF 2017 & 132 OF 2017)**

## **LUBEGA NOAH MAWAGGALI:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS MAMERITO MUGERWA:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

### **BEFORE: HON. JUSTICE LAWRENCE TWEYANZE**

#### **RULING**

#### **Introduction**

- 1. This is an Application for a Consequential Order by the High Court brought under Section 177 of the Registration of Titles Act, Cap. 230 (now Cap 240). It is pursuant to an Order made by His Worship Yeteise Charles (Rtd), the former Chief Magistrate of Masaka Chief Magistrates Court in Land Civil Suit No. 147 of 2017 & 132 of 2017 dated 27.01.2021. The Application is supported by an affidavit in Support of Application sworn by Lubega Noah Mawaggali, the Applicant/ Plaintiff. The grounds of the Application are as follows: a) Under the judgment and decree in Masaka Chief Magistrate's Court Civil Suits No.147 and 132 of 2017, the Court ruled that the Respondent/Defendant wrongly surveyed and included the Applicant/Plaintiff's land and obtained a Certificate of Title for the same comprised in Buddu Block 404 Plot 114 land at Settala; b) The Applicant/Plaintiff be granted the consequential order by the High Court. - 2. The Respondent/Defendant filed his affidavit in reply opposing the Application among others conceding that the Applicant's/Plaintiff's Kibanja of approximately 2 acres are on his title.

#### **Legal Representation**

3. At the hearing of the Application, the Applicant/Plaintiff was represented by M/s Kawanga, & Kasule Advocates while the Respondent/Defendant was represented by Signature Advocates. The Application was heard by way of written submissions, both Counsel filed their respective submissions, details of which are on Court record.

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# **Determination of the Application**

- 4. The gist of this Application is that the Chief Magistrate(retired) entered judgment in favour of the Plaintiff that his 2 acres of Kibanja were wrongly included in the Certificate of Title held by the Respondent/Defendant. The Respondent/Defendant never appealed against the said judgment hence this Application for consequential order for cancellation of his Title. - 5. *Section 161 of the Registration of Titles Act Cap 240* (formerly Section (177 of the Registration of Titles Act Cap 230) provides as follows:

" *Upon recovery of any land, estate or interest by any proceedings from the person registered as proprietor thereof, the High Court may in any case in which the proceedings 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 substitute such Certificate of Title or entry as the circumstances of the case require, and the Registrar shall give effect to that order*." (Emphasis mine)

- 6. The above Section was considered in the case of *Andrea Lwanga Vs. Registrar of Titles [1980] HCB 24* where Odoki J (as he then was) held that; "*before a person who has obtained judgment for recovery of land against a registered proprietor could be registered as a proprietor, he first has to apply to court to make an order under Section 185 (now 177) of the RTA. Such an order is referred to as a consequential order since it is consequent upon recovery of land*." - 7. It was also held in *Re Ivan Mutaka [1980] HCB 27* that in order to rely on Section 185 (now 161) of the RTA, the Applicant must satisfy court that he has recovered land, estate or interest in question by any proceedings from the person already registered as proprietor thereof. - 8. Going by the above law, in order to receive a consequential order for cancellation of the Respondent's Certificate of Title, the Applicant must prove to this Court that he has recovered the land by Court order against the registered proprietor thereof and that such proceedings are not expressly barred by statute. - 9. I have read the judgment of His Worship Charles Yeteise (as he then was) and he made the following orders against the Respondent/Defendant that: - a) The Applicant/Plaintiff was the first to buy the suit Kibanja from the legal representative (Sikolasitika).

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- b) The Report of the Surveyor shows that when the Respondent/Defendant surveyed and registered his land, he included the Applicant's/Plaintiff's 0.809 Hectares (2 acres) of suit Kibanja. - c) The general damages were denied because they were not proved, - d) The Applicant/Plaintiff was awarded costs of the suit. - e) The Applicant/Plaintiff was advised to apply for consequential orders in the High Court for cancellation of title and signing of mutation forms. - 10. My reading of the judgment clearly shows that the Applicant recovered his 2 acres of suit Kibanja that were wrongfully included in the Respondent's Certificate of Title of land comprised in Buddu Block 404 Plot 114 Land at Setaala. - 11. It is my finding that the Applicant has proved this Application to the satisfaction of Court. Accordingly, a Consequential Order is made with the following orders: - a. The Registrar of Titles Masaka Zonal Land Office is directed to cancel the Respondent/Defendant's Certificate of Title for the Land Comprised in Buddu Block 404 plot 114 land at Setaala. - b. The Applicant/Plaintiff is ordered to survey off 0.809 hectares (2.00 Acres) of his suit Kibanja. - c. The Applicant is awarded costs of the Application.

Ruling delivered electronically at Masaka this 18th day of April 2025.