Nansambajane and Another v Estate of the Late Luswata Anthony and Another (MISC. CAUSE NO. 044 OF 2023) [2024] UGHC 1226 (24 October 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVISION

# MISC. CAUSE NO. 044 OF 2023

#### 1. NANSAMBA JANE

2. BOSCO MUYIIRA :::::::::::::::::::::::::::::::::::

## **VERSUS**

# 1. ESTATE OF THE LATE LUSWATA ANTHONY::: RESPONDENTS 2. THE ESTATE OF THE LATE EMMANUEL KIYAGA

## BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K

# **RULING**

This is an Exparte Application brought by Notice of Motion under Order 52 rule 1 and 2 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act, seeking the following reliefs; -

a. That Title for land comprised in Kibuga Block 18 Plot 134 (herein after *referred to as the suit land*) in the names of Emmanuel Kiyaga be cancelled.

- b. That the Applicants be registered on the title for the said land. - c. Costs of the Application be provided for.

The Application is support by the grounds contained in the notice of motion and Affidavit in support deposed by the 2<sup>nd</sup> Applicant (Bosco Muyiira) with written authority from the 1st Applicant and briefly are that; - the Applicants are beneficiaries and administrators to the estate of the late Nabukenya Nalumaga Kyazze who owned a Kibanja and legal interest on the suit land pending transfer and registration of her name on the title. That the late Nabukenya Kyazze before

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het death bequeadred all the abovc interest to the r\pplicants. 'fhat after hcr death, Luswata r\nthony connived with I(yaga Emmanuel eoth deceased), fotged documents afld fraudulently and illegally cntcred into a sale agreeme nt and later lrad I{iyaga ]inmanr-rcl registered on rhe I-and t\_itle. That on discovery of the fraud and fotgertcs, thc r\ppJ.icant reportcd the matter to police and Luswata Anthony was arrested, ptosecuted and found guilty offraud and uttedng a falsc docurnent which he uscd to transfcr thc lar-rd to I(yaga ll,mmanuel vide Mrvanga II Cr. No. 6051 2014. 'Ihat r\nthony l,uswara r.vas sentenced to (; months' imprisonment rvhich he sclved and never appealed.

It rvas the Applicants' casc st-ill that, although thcy l.ravc been in possession of the land from tl-re time the late Nabukenya I(yazze passed on, the names o[ the latc Emmanucl I(iyaga still exists on the land title; that the same should be cancelled and subsdtutcd for the.\pplicanrs' names. That it is in thc interest of justice that dre r\pplication is granted.

Representation; - the AppLicants were represented by M/s Wakabala & Co. r\dvocates. The r\pplicar-rts did not file submissions.

30 35 -Tlre matter camc up for menrion on 22/1,0 /2024., and Counsel Isabtrye Isaac reprcscnted r\pplicants whercas Counscl Iiric ICyirlgi represented dre Itespondents. Counscl.l{yingi informed court that both ltespondents passed on 2017 and 2022 t:cspcctively btrt their family members have not complied rvid-r 0.24 tule 2 alnd 3 of tbc Civil Procedure I{ulc (C. P. R) thr:s being unable to fi.le any affidavit in rcp\, 1e the application.

> In reply Counsel Isabuye Isaac told courr rhat thcy had withdrarvn Civil No.521 of 201,4 in rvhich thc .r\pplicants now were the Plaintiffs, and Lus'nvara r\nthony and Ilmmanuel Kiyaga werc the Defendants having passed on. -fhat l-usrvata r\nthony and Linmanr-rcl Kiyaga are nolv sued as the ltcspondents, the latter har.rng derived hrs intcrest in thc suit land from the former. "l'hat in

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CllB433 / 2014 Uga,da Vs l,r.rsrvata r\ntl-rony, I-usrvata rvas found guilty of uttering false documcnt i.e forgcd land sale agreement etc; sentenccd to six months of imp'ison'rent and drd not appeal l.rcncc justifiTing trre fili.g of tr-ris application as it is since the family fai.led ro gct adminisuators. FIc prayed tl-rat court finds tl-re zrpplicat\_ion ptopet bcfore it.

In rejoinder Cou,sel I(y'ingi added tfiat the criminal case didn't expressry provide for ca.ccllation of trtle. 'I'hat horvevet, bccausc this matter is a backlog, tl.rc Ilstatcs r.vill r.rot opposc tlrc irppiicatior.r sincc tl.rey ne'ct appealed thc c'mi.al judgement; ind thus left it to court to cither grant or dismiss the application.

I rvill o.ly Itesolve one issue of; - whether this is a proper case for grant of consequential orders?

r\ccording to thc facts bcforc mc, a one Luswata Antrrony was tricd i, the chief Magistrates court of I(ampala at Ivlwanga II for forgery contrary to Section <sup>342</sup> & 347 (1) (a) and uttcting a falsc document conrrary to Scct-ron 351 of the penal Code r\ct. The mattei: rvas heard by H!7 Nyadoi Esther rvho found thc accuscd guilty and convicted l-rirn. It is o, the basis of the above judgment attached to the r\pplicants' afEdavit in support as Annexure ?,that they seel< consequenrial otdcrs of canccllatior-r o[ thc .amcs of I(yaga l]rnrnanuel on tl-re Ccttiflcatc of -ritle fr;r Blocl< 1[] PIot 134 and instcad l.rave thc sarnc rcgistered in the names of tl-re r\pplicants.

Conscqucntial ordcrs arc dcfincd by l\{usota J (t.s /te t:n n at) tn the case of Kalibaala Viccnt & Anor Vs Attorney General (FICMA No. 70 of 2015) to ntean, "an otder of coutt giuiag effect to the fudgement or decisioa to vhich it is consequential ot resultaat tbetefroa. Such an otdet is aomally dircctly taceable or flowiag froat the judgmeat of decisioa duly pnyed fot granted by court Vhat this tneaas is that, the consequential otders ate

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applied for where the court hands out a judgment but the implementation of the judgement is impossible except with further orders".

Consequential orders are governed by Section 161 of the Registration of Titles 70 Act Cap 240 which provides that, '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 75 to that land, estate or interest, and to substitute such certificate of title or entry as the circumstance of the case require; and the Registrar shall give effect to that order'.

- In Re Ivan Mutaka [1981] HCB 28 it was held that in order in order to rely on the provisions of section 185 (now section 161) of the RTA and have the register 80 book rectified by cancellation, the Applicant has to satisfy court that he/she has recovered the land, estate or any interest in question by any proceedings from any person registered as proprietor of the land. In Re Habib Lubwama [1991] HCB 74, court clarified that an order stemming from a criminal case can form a basis for a consequential order (quoted from Ssetumba C. Misairi vs The 85 Registrar of Titles HCMA No.55 of 2011 arising from Luwero Criminal Case No.378 of 2009). Thus, notwithstanding the Applicants' application stems from a criminal proceeding, it can succeed, provided they satisfy the necessary conditions. - In this application, the Applicants attached, annexure F, which is an uncertified 90 judgment in a criminal matter between Uganda (Prosecutor) against Luswata Anthony (Accused). In the judgment, the said Luswata Anthony was convicted of forgery and uttering a false document.

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Whereas the conviction was against Luswata Anthony, it is an admitted fact that the land sought to be required is registered in the name of Emmanuel Kiyaga, whose ownership of the same has never been determined by any court. As Re: Ivan Mutaka, supra, guides, it is necessary for the Applicants to show that the land in question was recovered from the person "registered as proprietor". In Park Royal Ltd vs Uganda Land Commission & Others HCMA No.46 of 2014, the same was emphasised when court stated that "an applicant must satisfy the 100 court that he or she has recovered the land by any proceedings from the person already registered as proprietor". The preceding quotation was relied on by my learned Sister Busingye J. in Lamminta Commercial (U) Ltd vs Kiconco Edwin & Anor HCMC No.136 of 2020 where she observed that ordering cancellation of 105 title of a proprietor who was not a party to a proceeding in which the alleged land was recovered and "without affording him a right to be heard would be an infringement of ... [that person's] to a fair hearing and a right to own property contrary to Article 28 and 26 of the 1995 Constitution of the Republic of Uganda."

In this case also, it is evident that the land was not recovered from the registered 110 proprietor. Therefore, the conditions for the grant of the application have not been satisfied. Accordingly, granting the application without hearing Emmanuel Kiyaga would be an infringement of his right to a fair hearing and right to property.

Interestingly, Emmanuel Kiyaga and Lusawta Anthony are deceased, as per the 115 Applicants' evidence. That said, the application was brought against entities crafted as "the estate of... [so and so]". In case of death of the defendant order 24 rule 4 sub rules (1) and (2) Civil Procedure Rules (C. P. R) must be complied with but no person can sue or be sued in the capacity of the Respondents as

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described in this case. What the law envisages is that suits against deceased persons be brought against their legal representatives/administrators/executors, which is not the case here. As for Counsel Eric Kiyingi, its absurd that he presumptuously appeared before court to represent non-existing entities; which basically implies that he had no instructions.

In conclusion, I find no merit in this application for the reasons above. 125 Accordingly, it is dismissed.

Signed, dated and delivered at Kampala this. 24 day of OCH De (2024.

Nabakooza Flavia. K Judge

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