Mayombwe & 11 Others v Wamala (Miscellaneous Application 97 of 1993) [1993] UGHC 71 (26 August 1993)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### MISC. APLLICATION NO. 97/93

| 1. | YUDA MAYOMBWE | | |------|------------------------------|------------------------------------| | 2. | ASANASIO KIGANDA | | | $3.$ | WYCLIFF SEMALEBE | | | | 4. TURIYO LUTAAYA | | | | 5. PAULO SEMWANGA | | | | 6. FREDRICK SEMBATYA | ::::::::::::::::::::::::APPLICANTS | | | <b>9.</b> EDWARD LULE | ğ | | | $\mathbf{8}$ . AGNES NAJUUKO | | | | 9. ESEZA MBALYOWERE | | | | 10. NAKA LUNKUSE | | | | 11. SEBIYA NAVUWALA | | | | 12. FLORENCE NAKIGANDA | |

## $\mathbf{V} \mathbf{E} \mathbf{R} \mathbf{S} \mathbf{U} \mathbf{S} \mathbf{V}$

YUSFU WAMALA :::::::::::::::::::::::::::::::::: BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA

## $\underline{\text{O} \ R \ D \ E \ R}$

**Cardio Construction**

This is an application by notice of motion brought under section 149 (1) (2) (3) of the Registration of Titles Act Cap 205 and order 48 rules 1 and 2 of the Civil Procedure Rules.

The applicant is seeking for an order that the Registrar of titles do delay the registration of the transfer and or any other dealing with the property comprised in former mailo Registrar Bulemezi Block No. 152 NOS. 22,23,26,27,35 and 45 land at Sempa Mutuba II Luwero District.

When the application came for hearing Kireju J granted an order that the application was an urgent matter which should be heard during court vaccation. The application was adjourned for hearing to another date. It landed before another judge. One of the other order sought from the court was that notice to the respondent be dispensed $\cdots \cdots$ $\mathbf{a} = \mathbf{a} \cdot \mathbf{a} = \mathbf{a} \cdot \mathbf{a}$ $\cdot \cdot$ with. When it came for hearing Egonda Ntende J. declined to ...../2

to another date. with of which I was was no would have notice. estate of the deceased were •eed exparte. the following grounds application until the personal representative to the estate of the deceased were appointed. ; Looking at the nature of the application I granted the application to pro-Turning to the application itself, it was founded on entertain the application, hearing notice. The file was placed before me handling urgent matters for that day. that there was an affidavit of service where to te seen. There was evidence that he was required representatives of Estate to be served with hearing That would entail declining to hear the He directed that the respondent te served The matter was again adjourned abruptly duiing the course I perused through and found to the respondent but the latter dead. That

- (a) That the applicants with the above said property which period is about to expire and any delay caused by service of this notice will entail irreperable and or.serious/mischief to the applicant. as caveators have been served?with sixty days notice dated 11th May 1993 by the Registrar I \* of Titles Bukalasa land office of a lodgment of dealing - (b) That the applicants are caveators on the above said lands as claiming an interest thereof / beneficiaries under, a will. - (c) That there is a suit \* pending in-the High. Court between the caveator applicants and the respondent in HCCS No. 750 of 1991 by which the issue of legalownership and hence who can deal with the suit property same as above is yet to be resolved. - before the disposing of the above suit. or any other dealing was registered (d) And finely that the applicants- will suffer irreparably if the transfer

./3 The application ie supported by the affidavit deponed to by Yuda Mayombwe the applicant on behalf of the rest of the eleven-applicants. There was also another affidavit .erworn by Johnson Mugisha Esq •

of Messers Muhanguzi & Mugisha & Co. Advocates.

Mr. Kyerere Kwalisimba who appeared on behalf of the applicant almost rehearsed about what was deponed to in the affidavits.

There was however evidence to the effect that on 7th November 1949 being the successor and executor of the deceased's will the respondent was granted a certificate of succession under the said sertificate of succession and $\lambda$ with a subsequent $\lambda$ of distribution of the deceased's property drawn in accordance with the deceased's will the respondent was entitled to have possession of only 60 acres of the suit land measuring approximately 1441.6 acres in trust for and distribute the same evenly among the caveators as the respective beneficiaries thereof.

Further evidence showed that in flagrant desregard of what was stated above the respondent as successor and executor insteady $of$ carrying out the deceased's instructions and fulfilling his wishes frandulently transferred the said residual land into his names. As if that was not enough the respondent presented a letter to the Registrar of Titles purpotedly written by the Lukiiko which submitted for registration of certificate of succession No. Supp $C/S$ to $C/S$ for 1366.60 residual lands meant for the applicants, Respondent was aware at the time that the Katikiiro and members of the Lukiiko had already issued him with a certificate of succession No. 11875 of 7th November 4949 of which he was only entitled to 60 acres.

The respondent was approached on a number of occassion and repeated demands for the respondent to surrender the land and distibute the same evenly among the applicants as beneficiaries but refused to comply as a result of which they lodged a caveat on the suit land in protection of their interest and filed a civil suit vide HCCS NO 750 of 1991 in the High Court judgment against the respondent.

Well considering the evidence on record and the submission of the learned counsel, there is cogent and uncontroverted evidence $\textsf{On}\,$ record to show that unless the application is granted the ....../4

$\mathfrak{Z}$

so when there is HCCS NO. Im the absence of the evidence to controvert the evidence before the court I am inclined to grant the application. applicants might suffer irreparably when the subject matter is alienated, s It.is fit and proper that the status quo remain/more *750/* <sup>1991</sup> still pending in the archieves of civil- registry.

In the premises it. is ordered that the Registrar of Titles Eykalasa do delay the Registration of the transfer and or any other dealing with the property comprised in former Maili Register Bulemezi Block No. <sup>152</sup> plot Nos. • 22,23,24,26,27,3®, 35-and <sup>43</sup> land at Sempa Mutuba II Luwer.o District.

tests-t of this application be in the cause.

I. MUKANZA'■ J « D O Fi

.26v^®8. 1993

My. Kyerere Musumba: Counsel for the applicant.

Order Delivered J U D G I. MUKANZ//

26.08. 1993