Mpanga & 9 Others v Bunkedeko & Another (Miscellaneous Application 2240 of 2024; Miscellaneous Application 2264 of 2024; Miscellaneous Application 2320 of 2024) [2024] UGHCLD 245 (31 October 2024)

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)**

**CONSOLIDATED MISC. APPLICATION NO. 2320,2240 & 2264**

### **OF 2024**

**(ARISING FROM MISC. APPLICATION NO. 1435 OF 2024 (ALL ARISING FROM CIVIL SUIT NO. 302 OF 2022)**

**1. MPANGA CHRISTOPHER**

**2. SEBINA MICHEAL**

**3. TIMOTHY WAMALA KIMBOWA**

**4. KASOZI JAMES**

**5. MARIA STELLA NABATANZI :::::::::::::::::::::::::: APPLICANTS**

**6. SSENKABIRWA SEMEI**

**7. MUKIBI BERNADINE**

**8. COUNTINHO SHEILA MARTHA alias SHEILA NDAGIRE COUNTINHO**

**9. KIGGUNDU MARGRET alias MARGRET KIGUNDU NASUNA**

**10. MATOVU JULIUS EMMANUEL**

## **VERSUS**

**1. YOKANA BUNKEDEKO :::::::::::::::::::::::::::::: RESPONDENTS 2. THE COMMISSIONER LAND REGISTRATION**

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

## **RULING**

## *Introduction;*

- 1. The applicants herein brought three separate applications by way of notice of motion premised on the same law and facts under sections 82,98 of the civil procedure act cap 282 and Order 46 rules 1(b),2 and 8, order 52 rules 1,2, and 3 of the civil procedure rules for orders that; - i) The ruling/orders of Hon. Justice Naluzze Aisha Batala dated 29th of July 2024 entered by this honorable court in Misc. Application No. 1453 of 2024 arising from civil suit No. 302 of 2022 be reviewed - ii) Costs of the application be provided for.

#### *Applicant's evidence;*

2. The grounds of the application are stated in the affidavits in support of the applications deponed by the 1st applicant on his behalf and on behalf of the 2nd,3rd applicants, 4th applicant on his behalf and on behalf of the,5th,6th and 7th applicants and 8th applicant on his behalf and on behalf of the 9th and 10th applicants which briefly state as follows;

- i) That the 1st and 2nd applicants were sued by the 1st Respondent as the 19th and 17th Defendants respectively in Civil Suit No. 3O2 of 2022, the 1st and 2nd applicants are the registered proprietors of parcels of land described as Busiro Block 442 plots 515 and 512 & 513 respectively. - ii) That the 1st and 2nd Applicants are bonafide purchasers for value without notice of any fraud and a judgment on admission against the 2nd Respondent affects their case and so they are aggrieved by it and believe that the same was obtained by collusion between the 1st and 2nd Respondents. - iii) That the ruling and orders made in Misc. Application no.1453 of 2024 constitute an error apparent on the face of the record that may be duly remedied by review. - iv) That the 3rd 7th applicants were sued by the 1st respondent vide Civil Suit No.302 of 2022 in which among other defendants including the 2nd respondent are being accused of fraud. - v) That the 3rd -7th applicants are registered proprietors of parcels of land described as Busiro Block 442, Plot 499,495,494,502 & 511 at Busambaga & Bunono

respectively which among other pieces of land form part of the subject matter of the pending suit.

- vi) That the 3rd 7th applicants have been in quiet possession and respectively purchased the above stated pieces of land until recently when unknown persons started making unfounded claims over the said pieces of land. - vii) That the ruling and orders in the main application directly affect the 3th – 7th certificates of titles as it states that the plaintiff's claim takes precedence over our titles yet we were not given a chance to be heard in the main application. - viii) That the 8th 10th applicants are defendants in a pending Civil Suit No.302 of 2022 filed by the 1st respondent. - ix) That the said applicants purchased the suit land in or around 1983 and have been living on the suit land for more than 35 years without any disturbances whatsoever until when unknown persons started making unfounded claims over the land they purchased from the late Eri Kawunya alias Eli Kawunya Lule.

x) That the ruling and orders in the main application affect the 8th -10th applicants title without being heard since they were not made parties to the said application.

#### *Respondent's Evidence;*

- 3. The applications are responded to by affidavits in reply deposed by the 1st respondent which briefly state as follows; - i) That the Applicants have no locus whatsoever to bring this Application since the Application was against the 2nd Respondent who admitted to particular facts in the 1st respondent's plaint. - ii) That the Applicants have not justified any sufficient cause for the grant of the prayers sought in the Application. - iii) The Applicants did not make any admissions in their Written Statements of Defence and therefore there was no justification for serving them in Miscellaneous Application No. 1453 of 2024. - iv) That I am the registered proprietor of land comprised in Busiro Block 442 Plot 1 land at Busambaga and Bunono, Wakiso District.

- v) That the Applicants can't claim to be aggrieved in this Application since they are not the custodians of the Land Register. - vi) That the Applicants' purported rights shall be heard and determined in the main suit. - vii) That the instant application does not disclose any ground for review as claimed by counsel for the applicants.

### *Representation;*

4. At the hearing, the 1st and 2nd applicants were represented by Counsel Francis Xavier Ogwado of M/S F. X Ogwado & Co. Advocates, the 3rd – 7th applicants were represented by Counsel Esther Bakandane jointly with Counsel Bandale Isaac of M/S Abaas Advocates, the 8th – 10th applicants were represented by Counsel Jonathan Mukasa of M/S Ren Advocates whereas the 1st respondent was represented by Counsel Muhangi George and Counsel Sumaya Nakaddu of M/S MBS Advocates and the 2nd respondent was represented by Counsel Arinaitwe Sharon for Commissioner land Registration.

5. Only the applicants filed written submissions and the 2nd respondent never filed any affidavit in reply despite being present in court when the schedules were issued.

#### *Issues for determination;*

- *i) Whether the applicants are aggrieved parties?* - *ii) Whether the applicants disclose grounds that warrant grant of review?*

## **Resolution and determination of the issues;**

## Issue1. Whether the applicants are aggrieved parties?

*6.* Section 82 of the Civil Procedure Act which governs applications for review states as follows; *Any person considering himself or herself aggrieved- (a) by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or (b) by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the*

# *order, and the court may make such order on the decree or order as it thinks fit.*

- *7.* The said provision has been subject to a wide judicial discussion and interpretation particularly on whether a third party to an application, and or suit can apply to court for the review of the decree, order, judgment and ruling arising from the proceedings to which that person was not party. - *8.* The supreme court in the cases of, **Ladak Abdulla Muhammad Hussein Vs Griffiths Isingoma Kakiiza & 2 other, SCCS No 8 of 1995 held that** *in a suitable case, a third party can apply for review under the inherent powers of court."* This answers the question as to whether a third party to either a suit or application can bring an application for review. - *9.* For an application for review to be justified, an applicant has to adduce evidence that he or she is an aggrieved party by the decision he or she desires court to review. Courts have laid a definition of who is an aggrieved party. - *10.* Drawing reference to the decision of Justice Karokora (as he then was) of the Supreme Court in **Muhammad Bukenya Alibai** **vs W. E Bukenya and Anor SCCA 56 of 1996** defined an aggrieved party as one who has been deprived of his or her property.

- *11.* It is the submission of counsel for the applicants that the applicants are registered proprietors of parts of the suit land and they are in possession of the said part of the suit land and the orders granted in the main application for judgement on admission affect the applicant's interest in the suit land. - *12.* Further counsel for the applicants submit that the averments stated by the 2nd respondent in his written statement of defence are to be best resolved in the main suit where all the parties are involved, unlike in the main application where the applicants were never parties. - *13.* Counsel for the applicants submit that the applicants are bonafide purchasers for value without notice of fraud on the suit land which was later subdivided into Plots 515,512 and 513 and they are aggrieved by the judgement on admission entered against the 2nd respondent which consequently has the effect of causing cancellation of the applicants' titles prematurely without them being heard.

- *14.* The applicants claim to be aggrieved persons in the instant application justifying their locus in the instant application, i will draw reference to the decision in *Kabagambe Grace vs Mbabazi Resty and Anor Misc. App No. 002 of 2022* where court held that a person who has a right to bring an application for review he or she should be a person who has suffered a legal grievance and it includes a third party as long as he or she can prove that she suffered a legal grievance by virtue of the decision he or she seeks to review. - *15.* The admitted facts in the main application for judgement on admission state that the claims made by the 2nd respondent herein that the 1st respondent's alleged title and interest is valid and takes precedence over the applicants' title and interest in the suit land. This is a fact that adversely affects the proprietary interest of the applicants in the suit land and the same justifies as to why the applicants are aggrieved parties. - *16.* Therefore, the first issue is answered in the affirmative.

Issue 2. Whether the applicants disclose grounds that warrant grant of review?

- 17. As already stated earlier on, section 82 of the civil procedure Act and order 46(1) b of the civil procedure rule state the grounds which court ought to consider in an application for review to include; - *i) Discovery of new and important matter of evidence previously overlooked.* - *ii) Some mistake or error apparent on the face of the record.* - *iii) Any other sufficient reason.* - 18. This court therefore will proceed to qualify the said conditions as relied upon by the applicants. - i) Discovery of new and important matter of evidence previously overlooked.

### 19. In the decision of **Kisakye Emmanuel Vs Joyce Nankya HCMA**

**3089 of 2023** where court held that an applicant who decides to rely on discovery on new evidence as ground for review must satisfy court that the proposed evidence would probably change the result and that it could not have been discovered at the time of trial through exercising due diligence.

- 20. The new and important matter of evidence discovered must be one which after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by the applicant at the time when the order was made and that if it would have been brought into the notice of court, it might have possibly altered the judgement. - 21. In the instant case, the applicants submit that the new and important matter of evidence is that the applicants herein are defendants in the main suit and they were not made parties to misc. Application no.1453 of 2024 and they were not aware of that the said application was proceeding, they only got to know of the said application later after it being determined by court. - 22. The Judgement on admission against the commissioner land registration upon all the remedies sought in the plaint would consequently have an effect of causing a cancellation of the titles of the applicants. - 23. If the applicants had taken part in the main application for judgement on admission against the 2nd respondent, it would have had a bearing on the ruling and orders of court. - 24. This court finds that this ground is met by the applicants.

- ii) Mistake/error on the face of the record. - *25.* An error apparent on the face of record cannot be defined precisely, it must be left to be determined judiciously on the facts of each case and review may be granted where court considers that it is necessary to correct an apparent error or omission on the part of the court, however the error must be self-evident and should not require an elaborate argument to be established*. (See; Farm Inputs Care ltd vs Klein Karoo seeds Marketing (2001)2 EA 173 before Justice Stephen Mubiru)* - *26.* Counsel for the applicants submit that the acts of the 1st respondent of omitting the applicants from the main application for judgement on admission and not bringing the same to the attention of court amounted to an error apparent on face of record. Counsel relied on the decision of court in Paul *Muhimbura and Anor vs Patrick Lwanga and 2 ors CR 028 of 2019* before justice Olive Kazarwe where she held that ... *I agree with the submission of counsel for the applicants that failure to add the applicants as parties to the application constituted an error apparent on the face of the record and such circumstances warrant the applicants a right to review.*

- *27.* In the instant application, the 1st respondent filed the main application for judgement on admission against the 2nd respondent only well knowing that the orders affect the applicants' interest in the suit land which form the subject of the main suit. The applicants were never heard and never participated in the proceedings of the main application yet they are parties to the main suit. - *28.* This is a fact that constitutes an error apparent on the face of the record. - *29.* In the result, the instant application succeeds and the same is hereby granted by court with the following orders; - i) The ruling and orders delivered by this court on the 29th of July 2024 in Misc. Application No.1453 of 2024 are hereby reviewed and the same are set aside by this court. - ii) There are no orders as to costs.

#### **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

#### **JUDGE**

# **st/10/2024**

## *Delivered electronically via ECCMIS on the 31st of October 2024*