Mubiru Christopher and Others v Baliyanja Robert (Miscellaneous Cause No. 009 of 2024) [2025] UGHC 292 (12 May 2025)

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA

### AT LUWERO

#### MISCELLANEOUS CAUSE NO. 009 OF 2024

1. MUBIRU CHRISTOPHER

### 2. NANZIRI HARRIET

3. SELUWU JOHN SENGONZI::::::::::::::::::::::::::::::::::::::::::::APPLICANTS

VS

BALIYANJA ROBERT ::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

#### BEFORE HON. JUSTICE GODFREY HIMBAZA

#### RULING.

#### Introduction.

- 1. This application was brought by Notice of Motion filed in this court on 28th March 2024 under sections 177 of the Registration of Titles Act Cap 230 Section 98 of the Civil Procedure Act Cap. 71, and Order 52 rule 1 and 3 of the Civil Procedure Rules. The application sought for orders that; - i) A consequential order be issued upon the recovery of land following a judgement and decree of the Chief Magistrate's court of Luwero at Wobulenzi in civil suit no.236 of 2015 dated 2nd November 2017 directing a cancellation of the Certificate of title vide Bulemezi Block 59 plot 170 registered in the names of Baliyanja Robert. - ii) An order for vacation of the caveat lodged by Mubiru Christopher, the 1st applicant be made. - iii) Costs of the application be provided for. - 2. The grounds in support of this application are contained in the affidavits of Mubiru Christopher and Seruwu John Sengonzi the 1st and 3rd applicants - 3. The respondents did not file an affidavit in reply despite being served with the application as can be shown in the affidavit of Zinunula Arafat filed on court record on court record on 17th April 2025. When the application came up for

hearing on 25th April 2025, the respondent did not show up. Upon the application of counsel for the applicants, I allowed him to proceed ex parte against the respondent under O.9r 20 (1) CPR.

### Representation

4. The applicants were represented by Counsel Seruwooza John Bosco from Richard Kabazi & Partners whereas the respondent did not file an affidavit in reply.

## Background to the application

- 5. When this application came up for hearing, Lady Justice Comfort Kania directed that the respondent be served with hearing notices again which service was done and an affidavit of service sworn by Namatovu Rashidah and filed on court record on 17th April 2025. On 25th April 2025, I directed that the application proceeds ex parte. - 6. The background is that the 1st and 2nd applicants are the beneficial equitable owners of the suit land comprised in Bulemezi Block 59 plot 170 land at Namawagya measuring approximately 1.1250 Hectares. The land is registered in the names of the respondent Baliyanja Robert. - 7. The applicants sued the respondent in Chief Magistrate's court at Wobulenzi together with Seruwu John Sengonzi for declarations that; - a) The suit Kibanja forms part and parcel of the estate of late Lazaro Gavamukulya - b) A declaration that the 1st defendant has never been a Bonafide and lawful owner of the suit kibanja. - c) A declaration that the purchase of the Mailo Interest by 1st defendant and the sale of the of the same by the 2nd defendant was unlawful and fraudulent. - d) A declaration that the 1st defendant and his agents are trespassers on the suit land. - e) An order that the 1st defendant and his agents vacate the kibanja. - f) A permanent injunction restraining the 1st and 2nd defendants and their agents from dealing in the suit land.

- g) A consequential order doth issue that the certificate of title acquired by the 1st defendant over the suit kibanja is cancelled. - h) Costs and damages. - 8. On 2nd November 2017, the trial court passed judgement in favour of the applicants and issued a decree directing inter alia that the prayers for consequential orders be made to the high court to the effect that the certificate acquired by the respondent be cancelled. - 9. The respondents appealed to the High court but the appeal was dismissed by Justice Keitirima on 22nd day of June 2022. That the applicants lodged a caveat on the land in order to protect their beneficial interest vide instrument no. LUW-OOOO8258. The applicants thus argued that it is in the interest of Justice that consequential orders be issued by this court.

## Issues for determination.

## The issues for determination are ;

- i) Whether this application is properly before this court and should be granted. - ii) What remedies

# Submissions of the Applicants' Counsel on issue no.1.

- 10. The matter proceeded ex parte, and the applicant's counsel made an oral submission. Counsel submitted that since the respondent did not file an affidavit in reply, it was evident that he did not oppose the application. He argued that in such a case, there would be no need to prove what has been admitted. He relied on the case of Musa Sbeity & Anor. Vs Akello Joan HCMA 249 of 2018. - 11. Counsel submitted that the affidavits of the 1st and 2nd applicants are to the effect that there is a judgement that led to the recovery of land comprised in Bulemezi Block 59 plot 170 and because the trial court did not have powers to order cancellation , the applicant invoked the powers of this honourable court to order cancellation of the said certificate of title and the land reverts to the former owner who is the 3rd applicant.

12. On the affidavits, the applicants attached the record of proceedings of the trial court, Judgement of the Court, Decree, Dismissal order of the appeal that had been preferred by the respondent in this application, statement of search confirming that the land is registered in the respondent's names and the certificate of title of the suit land. Counsel submitted that this court is empowered under section 161 of the RTA to order for cancellation of the certificate of title which was fraudulently obtained . Counsel relied on the case of Simon Independence Vs Julius Sekitende & Anor HCNANO. 52 OF 2023. Where this court presided by Justice Henrietta Wolayo ruled that the High Court has powers on an application for consequential orders to direct cancellation of a certificate of title where there is proof that a judgement of a competent court under the Registration of Titles Act was passed for recovery of land.

## Resolution of issue no. 1 by court.

13. Before delving into the merits of the application, I wish to note that the application was unopposed. The respondent opted not to file an affidavit in reply despite evidence of service on court record. The application thus proceeded ex parte.

In the case of Musa Sbeity & Cyber Auto Services Vs. Akello Joan MA 249 of 2018, Justice Ssekaana stated that an application where a respondent does not file an affidavit in reply is deemed to be unopposed ;It is deemed admitted as constituting the true position of the current application before court. The respondent did not file an affidavit in reply in the current application and yet he participated in the suit in the lower court and even filed an appeal which was however subsequently dismissed. This application proceeded ex parte.

14. The Applicant seeks consequential orders under section 177 of the Registration of Titles Act Cap 230 which provides as follows;

> " Upon the recovery of any land, estate or interest by any proceeding from the person registered as proprietor thereof, the High court may in any case in which the proceeding 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 to substitute such certificate of title or entry as the circumstances of the case require and the Registrar shall give effect to that order".

15. In the case of Park Royal vs Uganda Land Commission & Ors Misc. Cause no. 46 of 2014,(2015) UGHCLD 2, Justice Monica Mugenyi as she then was held that;

> "…Section 177 grants the High court powers to cancel a certificate of title…such cancellation would be incidental to the recovery of land by an applicant pursuant to proceedings that are not otherwise precluded by the RTA. This would raise two faceted parameters that must be satisfied for an applicant to properly bring an application under section 177 of the RTA. First, there must have been a valid recovery of land by the applicant, and secondly, such recovery of the land should have been pursuant to an action or proceeding that is permissible under the RTA"

16. The import of the above decision is that prerequisites to issuance of consequential orders are that the applicant recovered registered land through a judgement by a competent court.

17. In Kalibbala & Anor vs Attorney General Misc Application no. 070 of 2015 (2016) UGHCCD 46 ,Musota J(as he then was) inter alia observed that;

"…the term consequential orders denotes an order of court giving effect to the judgement or decision to which it is consequential or resultant therefrom. Such an order is normally directly traceable to or flowing from the judgement of a decision duly prayed for or granted by court".

18. According to evidence presented by the applicants, there is a judgement in their favour, by a competent court. I am satisfied that judgement was passed in favour of the applicants by H/W Kavuma John Mugagga. I have

also seen a Decree extracted and signed on 5th Jan 2018. The decree contains an order for recovery of land by the applicants. The respondent tried to appeal the decision of the Magistrate, but the appeal was dismissed by Justice Keitirima and an order of dismissal dated 1st September 2022 was also extracted

In light of the above reasons and authorities, I resolve issue no.1 in the affirmative.

#### Issue no 2: What remedies are available.

I note that this is an old matter of 2015. There is need to bring an end to litigation. In order to achieve this , each party ought to bear its own costs.

I will therefore invoke section 177 of the RTA to make the necessary orders. I hereby allow this application with the following orders.

- a) The respondent is hereby directed to hand over the duplicate certificate of title for land comprised in Bulemezi Block 59 plot 170 Land at Namawagya measuring approximately 1.1250 Hectares for cancellation by the Commissioner Land Registration within 7 (seven) days from the date of this order. - b) In default of a) the Commissioner Land Registration is directed to cancel the names of the respondent Baliyanja Robert from the certificate of title of land comprised in Bulemezi Block 59 plot 170 Land at Namawagya measuring approximately 1.1250 Hectares. - c) The Commissioner Land Registration is further directed to restore the names of the 3rd applicant Seluwu John Sengonzi as the registered proprietor of the aforementioned land and issue him with a duplicate certificate of title for the said land. - d) Each party shall bear its own costs.

I so Order

GODFREY HIMBAZA Ag. JUDGE $12^{th}$ May 2025