Ms Buhuka Communal Land Association v Abdul Karim (Miscellaneous Application 123 of 2023) [2025] UGHC 92 (17 January 2025)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA MISC. APPLICATION NO. 123 OF 2023 (ARISING OUT OF CIVIL SUIT NO. 162 OF 2022)

## M/S BUHUKA COMMUNAL LAND ASSOCATION::::::::::::::APPLICANT **VERSUS**

ABDUL KARIM::::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

## **RULING**

- In this application brought by Notice of Motion under **S.33** of the $[1]$ Judicature Act, S.82(1) CPA, O.46 r.(1)(a) and O.52 rr 1 & 2 CPR seeking the following orders: - That the judgement and decree in Civil Suit No.162 of 2022 be $(1)$ reviewed and set aside. - (2) Costs be provided for. - The application is supported by an affidavit deposed by a one $[2]$ Byaruhanga Issa, the Applicant's Chairperson which contain the grounds of the application, briefly they are: - The Applicant is communal land Association covering five $(a)$ villages; Kyabasambu, Kiina Nsunzu, Kyakapere and Nsonga all in Buhaguzi. - (b) The land comprised in FRV 469, Folio 7, (Plot 37, land at Kiina) decreed to the Respondent is part of communal land of the Applicant. - The Respondent is a member o he Association No. 521 in the $(c)$ Register Book. - (d) The Respondent among others had unlawfully and irregularly created a land title in respect of the property and it was lawfully cancelled upon full hearing by the Commissioner Land Registration following report of the Ministry of Land, Housing & Ministry of Energy & Development **Mineral** and Urban Development.

- The judgment in **Civil Suit No. 162 of 2022** was procured by way $(e)$ of concealment of material evidence of cancellation of the title that was availed to this court. - The decision of this court has the effect of depriving the $(f)$ community of its property without being heard. - The Applicant never had a clue about the suit filed by **Abdu** $(g)$ **Karim** to enable it join the trial but simply saw people measuring the land which members of the Applicant protested and got to know of the judgment after police intervened. - It is in the interest of justice that the application is granted, the $(h)$ decision of this court be reviewed and set aside. - The Applicant opposed the application by an affidavit duly in reply $[3]$ deposed by the Applicant on the following grounds: - The Applicant cannot be aggrieved by the decision of this court $(a)$ in Civil Suit No. 162 of 2022 between the Respondent and Registration the Commissioner Land for reasons that Registration illegally Commissioner Land cancelled the Respondent's title. - The Applicant claim to be the registered proprietor of land $(b)$ comprised in FRV MAS 3, Folio 8, Plot 162 at Kyabasambu, Kiina, Nsuzu, Kyakapere and Nsonga village in Buhaguzi yet it did not attach any certificate of title to that effect. - The Applicant is seeking to set aside the judgment and decree in $(c)$ Civil Suit No. 162 of 2022 which is already a res judicata matter between the Respondent and Commissioner Land Registration together with its privy, the Applicant. - The Respondent deny to have ever been a registered member of $(d)$ the Applicant or a member of the Area Land Committee as alleged and no evidence to that effect has been attached to the application.

#### Counsel legal representation.

[4] The Applicant was represented by Mr. Paul Baingana of Ms. J. P. Baingana & Associates Advocates, Kampala, while the Respondent was represented by Mr. Patrick Kasirye of M/s Bukenya Chemonges Both Counsel filed their respective & Co. Advocates, Mukono.

submissions for consideration of this court in the determination of this application.

#### Preliminary point of law.

Competency of the affidavit in reply $(a)$

- Counsel for the Applicant submitted that the application was served $[5]$ on the Respondent through his known advocates, M/s Bukenya Chemonges & Co. Advocates, Mukono on the 21/11/2023, 7 days after its endorsement by the Deputy Registrar as per the affidavit of service of Nsubuga Edward on record filed on 10/1/2024. The affidavit in reply was filed on $8/1/2024$ , about 46 days after service. Counsel contended that the filing of the affidavit in reply was without leave of court which contravened $0.12 \text{ r.3(2)}$ CPR which provides for filing of a reply within **15 days**. In the premises, Counsel prayed for striking out the affidavit in reply for being filed out of time. - Counsel for the Respondent on the other hand submitted while $[6]$ conceding that the affidavit in reply was filed out of time, that filing an affidavit in reply out of time is not an illegality and did not in any way occasion a miscarriage of justice to the Applicant and there is no specified timelines in law allowed for filing an affidavit in reply like the present one. He relied on the authorities of Kiwanuka Erick vs Centenary Rural Development Bank Ltd & 2 ors H. C. M. A. No. 232 of 2022 and Dr. Lam Lagoro vs Muni University M. A. No. 007 of 2016 where court was of the view that an affidavit in reply, being evidence rather than a pleading in stricto to sense should be filed and served on the adverse party within the reasonable time before the date fixed for hearing. - In the case of Stop & See (U) Ltd vs Tropical Africa Bank H. C. M. A. $[7]$ No. 333 of 2010, Madrama J (as he then was) held that:

"A reply to defence to an application has to be filed within fifteen days. Failure to file within 15 days would put a defence or affidavit in reply out of the time prescribed by the rules. Once the party is out of time, he or she needs to seek the leave of court to file the defence of affidavit in reply outside the prescribed time".

On this issue, Stephen Musota J (as he then was) in the **Ramgarhia** Sikh, Society & 2 ors vs the Ramgarhia Sikh Education Society Ltd & ors H. C. M. A. No. 352 of 2015 had this to say on the suggestion by Counsel that there are no timelines for filing an affidavit in reply as long as it is filed before the hearing date or on the day for hearing:

"Had this to be the case, then it would cause a mischief. $It$ would mean that once an application is filed, the Respondent would wait for the day of the hearing and come to court with this affidavit in reply. This would lead to wastage of time because most likely the opposite party would seek out for an adjournment to make an affidavit in rejoinder".

The learned judge was in agreement with the decision by **Madrama J.** in Stop and See (U) Ltd (supra).

- In my view, an affidavit in reply constitutes a defence of the [8] Respondent. The Respondent having been served with the Notice of Motion in accordance with O.5 r.1 CPR, since on the authority of Kanyabwera vs Tumwebaze [2005] 2 E. A 86 and Fredrick James Jjunju vs Madhivan Group Ltd & Anor H. C. M. A. No. 688 of 2015 applications, whether by chamber summons or notice of motion and/or hearing notices all by law required to be served following after the manner of the procedure adopted for services of summons under $0.5$ $r.1(2)$ CPR, it follows that an affidavit of reply to the application is a defence which must also by law be served following after the manner of the procedure adopted for filing a defence i.e. within 15 days after service of the motion. Besides, O.12 r.3(2) CPR, requires reply to interlocutory application to be filed within 15 days from the date of service of the application. - As a result of the above, I am not persuaded by the authorities cited $[9]$ by Counsel for Respondent and in the premises, I accordingly find that the affidavit in reply filed after 46 days from the date of service of the application was filed out of the time prescribed by the rules and since no leave was sought from court to file and serve it out of

time, the affidavit is apt for striking out. The Respondent's affidavit in reply is struck out for being filed out of time.

#### $(b)$ Whether the application is barred in law by reason of the Resjudicata.

- [10] *Res judicata* is provided under **S.7 CPA** which states that a court shall not try any suit in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit in which the issue has been subsequently raised, and has been heard and finally decided by the court. See also the case of James Katabazi & 21 ors vs Secretary General of the East Africa Community & Anor, E. A. C. J Ref. No. 1 of 2007 where the doctrine of *res judicata* was summarised as follows: - The matter must be directly and substantially in issue in the two $(i)$ courts. - The parties must be the same or the same parties under whom $(ii)$ any of them claim, litigating under the same title. - (iii) The matter must have been finally decided in the previous suit. - [11] In the instant case, whereas the subject matter in the former suit between the **Respondent and the Commissioner**, Land Registration (Civil Suit No.162 of 2022) was on the legitimacy of the Respondent's certificate of title comprised in Block 3, FRV 469, Folio 17, Plot 37, Kiina and its cancellation remains the same in the present application, the judgment in the former suit was not a judgment in rem that would bound the whole world including the Applicant. It was a judgment in personam binding only the parties to the suit. The Applicant was not a party to the suit and therefore, it cannot be said that the former suit finally decided the rights of the parties in the subject matter. The Commissioner Land Registration had no vested interest in the subject matter and the Applicant who has adduced evidence in the affidavit in support that it had interest, was not party to the suit.

- [12] Secondly, the present application is for review of its decision in the former suit on the grounds that there is evidence that was not presented to court at the time of hearing because the Applicant was not a party to the suit and was not made aware of it to enable it join a party. This point was definitely not covered by the previous suit. - [13] In the premises, I find that this application is not barred in law by reason of *res judicata*.

# **Merits of the application.**

- [14] The law on review of decisions in S.82 CPA and O. 46 r.1(1) CPR which empower court to review its decision and order whenever any person considering himself/herself aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or by a decree or order from which no appeal is allowed, make an application for review to the court which passed the decree or made the order. The grounds for review are: - Discovery of new and important evidence which after the $(i)$ exercise of due diligence, was not within knowledge or could not be produced by him at the time when the decree was passed. - On account of some mistake or error apparent on the face of the $(ii)$ record. - (iii) For any other sufficient cause or reason, see Edison Kanyabwera vs Tumwebaze S. C. C. A No. 6 of 2004 [2005]2 EA 86. - $\bigcirc$ [15] In the instant case, the Applicant is relying on "for any other sufficient cause or reason" to wit, the investigative report that led to the cancellation of titles and the Applicant's certificate of title to the suit land which the Applicant was unable to present to court at the time of the hearing of the impugned civil suit due to the fact that the Applicant was not aware of the existence of the suit and was therefore not a party thereto, it asserts amounts to "any sufficient cause or reason". - [16] The Applicant is aggrieved by the fact that this court restored the Respondent's certificate of title of the land where it has interest as

registered proprietor without material evidence that led to the cancellation of the Respondent's certificate of title and knowledge that the Applicant being the rightful registered owner of the land being concealed by the Respondent during hearing of the suit.

- $[17]$ I am alive of the fact that litigation must come to an end. The Applicant has however presented uncontroverted evidence of its interest in the land comprised in the Respondent's certificate that had been cancelled by the Commissioner Land Registration but restored by this court. It may be argued that the Applicant would not be aggrieved by the decision of this court in Civil Suit No. 162 of Commissioner **Respondent** and **Land** the between 2022 Registration for reasons that the Commissioner Land Registration had illegally cancelled the Respondent's title. It is however the contention of the Applicant that the Respondent as a member of the Applicant was given a hearing and participated in the investigation that was conducted by the Ministry of Lands, Housing and Urban Development regarding the issues of the impugned title and other titles that led to the cancellation, a material fact that the Respondent concealed during the hearing. - [18] Indeed, the uncontroverted evidence of the Applicant is that as per the Register book of the members of the Applicant, the Respondent is No. 521. Though it cannot be said that the Applicant's certificate of title and the investigative report are new and important evidence since with due diligence, they must or ought to have been available to the Commissioner Land Registration who intended to issue and indeed issued the Applicant the certificate of title, I find that they constitute sufficient cause or reason in favour of the Applicant who was not a party to the suit for review and setting aside the judgement The Respondent ought to have in Civil Suit No. 162 of 2022. included the Applicants in the suit since their interest in the subject matter was known or ought to have been known by the Respondent who is its member so that all the controversies surrounding the suit land and the acquisition of the titles thereto are conclusively adjudicated upon once thus avoid multiplicity of suits.

[19] This court therefore, in the premises reviews and sets aside the judgment in Civil Suit No. 162 of 2022 with orders that the Applicant be made a party for a possible adjudication of the controversy surrounding the acquisition and cancellation of the The application is accordingly Respondent's certificate of title. granted in the above terms but with no order as to costs.

Dated at Hoima this $17^{th}$ day of **January**, 2025.

**Byaruhanga Jesse Rugyema**

**JUDGE**