Ndengana v Biretwa (Miscellaneous Application No. 22 of 2012) [2013] UGHC 258 (4 February 2013)

Full Case Text

**THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA M1SCELLENOUS APPLICATION NO. 22 OF 2012**

**NDENGANA DAVID I::::::::::::::::::::::;:::;::::::;::::::::::::::::: APPLICANT BIRETWA NERIKO RESPONDENT**

## **BEFORE: HON. LADY JUSTICE MARGARET . C. OGULI QUMO**

## **RULING: ,**

The applicant brings this application by notice of motion under S. 82 (a) and 98 Civil Procedure Act, for orders that:

- 1. The applicant being dissatisfied and aggrieved by the declaration of His Lordship Hon. Mike Chibita dated 30th May, 2012 delivered by the Assistant Registrar Masaka on 4/06/2012, hereby applies for review of the said decision. ' .. - 2. The costs of the application be provided for.

The grounds of the application are contained in the notice of motion and the accompanying affidavit and are briefly as follows:

- *That the applicant sued the respondent for unlawfully entry of the respondent onto the applicants land in 2010 Vide HCCS No. 004/2010.* - *ii) That in proof of ownership the applicant of title for Mawogola Block 30 Plot 7. attached a photocopy of a certificate*

- *That the Photocopy attached was of an earlier date made-daring the initial period of the first 5 years.* - *lv) That by the time the photocopy was attached to the plaint the said lease had been extended to full term and the applicant had mortgaged it with Centenary Rural Development Bank Limited.* - *That this fact of mortgaging the title was brought to the attention of court during the course of hearing.*

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- *vi) That at judgment Court ordered that since the applicant' did not have an existing lease the respondent should curve out* 7 *acres of land which the ' Respondent had forcefully occupied by removing the applicants barbed wire L O fence.* - *vii) That it is just and equitable that this application be allowed.*

At the hearing of the application, the applicant was represented by Mr.. Patrick Yehangane and the respondent by Mr. Kawanga John. Both counsels agreed to file written submissions which I shall refer to in my ruling.

The applicant brought a suit against the respondent in 2010,for unlawful entry on the applicants land and in proof of ownership, the applicant tendered a ' photocopy of the certificate of title on which the respondent had over-run land known as Chock with submissions LRV 3249 Folio 17 Mawogola 30 (The photocopy attached to the plaint), was the one made during the initial period 2\$ five (5) years term.

Court agreed with the applicant in regard to the trespass and destruction of the . barbed wire and awarded shs. 2,000,000/= in damages but the same court decreed that the 7 acres in the applicant's title should go to the respondent on the belief that, the appellant's title had expired.

The applicant brings this application for the review of the judgment and courts o decision to avail the sever (7) acres to the respondent, on the basis that the seven acres have always formed part of the applicants land since 2004 when the district land board allocated it to him.

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That the applicant had since 1986 been in occupation and use of the land. including the seven acres, and there is no way the respondent who came later *fo* in 1995 could have a superior usage over the seven acres. That the respondent was according to the proceedings present during the visit by the Land Board as well as the Survey and if he was to raise any objection, he would have done so then, and not in 2010. That the 7 acres belong to the applicant and it should be declared so. '

Counsel for the applicant submitted that, according to. the record of proceedings, Page 2, it was stated that the respondent was present during .the visit of the Land Board as well as the Survey and if he was to raise any. objection, he would have done so by then and not in 2010.

The 7 acres belong to the applicant's plot, and court should have declared so. jjW

Counsel for the applicant submitted further that, by 2010, when. C. S. No. 004/2010 fho aoolicant's title was already extended to full term of 49 years and came up, uie

was mortgaged to Centenary Rural Development Bank. That this fact was brought to the attention of court during the course of the hearing – (See P.1 Last paragraph of $3/01/2011$ – in the proceedings where the applicant testified that \* I have a title with the bank but I have a photocopy".

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That not withstanding that testimony, Court ordered that since the applicant did not 🚊 have an existing lease the respondent should curve out seven acres, yet it is the same court that had found the respondent had forcefully occupied the applicant's land and even awarded damages.

Mr. Yehangane learned counsel for the applicant submitted that, the court uses its discretionary powers and review the order to curve seven acres out basing on the $\sqrt{0}$ erroneous fact that the applicant did not have an existing lease and should therefore loose the seven acres.

Mr. Yehengane, learned counsel for the applicant submitted further that under S.59 of the RTA, a title is conclusive evidence of ownership and should be admitted and the court should admit the sanctity of the title and that the respondent be estoped from claiming ownership after he erroneously believed applicant's title was expired and he could therefore curve out the 7 acres from it at will when the applicant's title was so young in its full term.

Counsel urged that the applicant had appended the full term certificate of title and the receipts for ground rent which are up to date and that court carefully perused $2\mathcal{O}\xspace$ the record and saw other misrepresentation that could have escaped the trial court's vision.

P y, Mr. Kawanga, learned counsel for the respondent submitted that, the motion sets 7 grounds for the application, which were reduced to 2 ( 9 nds. Basically that at judgment, the court ordered that since the applicant did ' not h " \* ave an existing lease, the respondent should curve 7 acres of the land which ' the respondent had forcefully occupied by removing the applicant's barbed wire 3 jj fence. ' . I c

That the notice of motion doesn't specifically indicate in what way the applicant , 3 wants the judgment and or decree to be reviewed nor has Counsel done so in his ) submissions. . •' 3

That the application was supported by an affidavit sworn by the applicant which is 10 j to state the detailed grounds of the application for review and that the affidavit 1 doesn't also state how the applicant wants the judgment and decree of the court I reviewed. ' l.'ji

Counsel Kawanga contended that the applicant merely stated the basis of his 1 complaint and then concedes that his certificate of title should not continue to be cf declared expired, when it is full term. Mr. Kawanga contended further that, this application is misconceived basing on two grounds, j

- *a) It does not state how and why the courtjudgment and decree should be reviewed.* - *b) Doesn't state what grounds of law applicable to review the application Xo is based on. [*

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at the law applicable is section 82 of the **Civil Procedure Act Cap.71 and 0.42** o the CPRS. That the language in section 82 (b) of the CPA is the same as 0.42 r (1) (b) but the provisions in 0.42 r (1) (b) go into more detail than section 82 (b) of the CPA. Mr. Kawanga cited the case of **Mohamed Hussein .:V-s: Col Kakika and 2 others (1997) Pg.18 and Edison Kajabwita :Vs: Tumwebaza Civil .35 Appeal No. 1006 of 2004 (2005)** where it was held that;

Yet from submissions "Section 83 of the Civil Procedure Act provides for the right of a person aggrieved by a decree or order from whic an appeal is allowed under the Act but from which no appeal has been preferred to apply for review of the judgment to the court which passed the decree or order. Order 42 of the Civil I *Q* Procedure Rules provides the details of exercising the jurisdiction of review."

Learned Counsel cited 0.42 r 1 (1) (b) on the jurisdiction for review and stated that, under 0.42 r 1 (1) (b) refers the application to be based on the following grounds:-

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- *i) From the discovery of new and important matter of evidence which after the exercise of diligence wasn't within his knowledgeor couldn't* O *be produced by him at the time when the decree was made or* - *ii) On account of mistake or error apparent on the face of the record; on.* - *Hi) For any other sufficient reason.* - *iv) And he cited earlier decision to support his submissions.*

Mr Kawanga, learned counsel for the respondent submitted that, in the present case the respondent swore in his affidavit in reply and stated that he first ' attempted to appeal against the judgment and withdrew the notice of appeal. That , oo in the orioinal suit was consented to by both parties and was duly filed ' th© dscree m a court Mr Kawanga submitted further that, the applicant is quite vague on what

ds the application was based and the nature of renew he'seeks. That he °ned the appeal and does not specify what he bases his application for view. That he cannot claim to base his application on the ground of discovery of new and important matter of evidence, which after the exercise of due diligence was not within his knowledge or couldn't be produced by him at the time when the cT decree was passed.

That in paragraph 3 of his affidavit he sued the respondent. Respondent seeking • several relief's including a declaration that the respondent's entry on the land compromised in Mawogola Block 30 Plot 7 was unlawful and he proceeded to annex to the plaint photocopy of a certificate of title whose term had expired 5 10 years earlier. That if he had deposited the original duplicate certificate of title in Centenary Bank, Masaka Branch, he should have got a photocopy of the same and acetified true copy of the same from the Land Registry. That the applicant can't base his application on that ground.

Counsel also cited the case of **Edson Kanyabweru Vs Paskari** which relied on **o** AIR Commentaries. The code of conduct of procedure by **Monoher and Chitaley, Vol.5 1908,.** where the authority stated that, "Discovery of new and important matter or evidence at P.4463:- "where a litigant has obtained judgment in a court of justice he is, by law, entitled not to be deprived of that judgment without solid grounds. Where a review of judgment is asked for by party, the greatest care 74? ought to be exercised by the court in grating review especially where the ground is the discovery of fresh evidence thus, the party asking for a new trial must show that there was no remorsness on his part in adducing all possible evidence at the trial where it is very doubtful whether the evidence if produced, would have had ' any effect on the judgment, there is no ground for review ." . J

*J* That the applicant chose to base his claim on an expired lease. That it is the law $\frac{1}{2}$ . that parties are bound by their pleadings and pleadings are to ensure that both parties know what points are in issue between them so that each may have full information of the case he has to meet and prepare his evidence to support his own case or to meet that of his opponent "he cited the case of Standard 5 Chattered Bank VS Grand Imperial Hotel (U) Ltd. C. A Civil Appeal No. 13 of 1999(1997) HCB P.50- to support his contention. That the applicant can't now disown his case as presented by him to court in order to seek a reversal of the decision by review.

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That the applicant can not be heard to say, as he does in paragraph 9 of his *I*O affidavit, that there was "no question of expiry of title because if it had come up, he would have produced the one of full term." That the applicant asserts in paragraph 14 of his affidavit that the certificate of title to full term was already expired at the time he filed the suit and he should have use it at the time of filing or even at trial and it is strange when he says that he would have produced it if the court had $\sqrt[4]{\cdot}$ asked for it yet he relies on the photocopy attached to the plaint. That it was a manifestation of a high lever of negligence which cannot be rewarded by review.

In rejoinder, counsel for the applicant contended that, it is clear from the application and submissions that the applicant wants his certificate of title left intact and the seven acres crafted away by the court on the grounds that he did not $\mathbf{p}_0$ have a subsisting Certificate of Title was an error which should not have been sanctioned by court. That the expired certificate of title was appended on the pleadings by mistake and this mistake should not be a basis to deprive the litigant of his land as such mistakes were catered for under Article 126 (2) (e) of the Constitution of the Republic Of Uganda. It was specifically drafted to save those seeking for justice not to be caught by the unaware of technicalities.

horities by the counsel for the respondent are only relevant to this ar as they refer to consent judgments and the present case was ersarial and the applicant is indeed aggrieved that after producing evidence in court which evidence is visible on the face of the record his seven acres of land are given away. That in DE4 the Sembabule District Land Board was tendered in by Karinkiza, the District Land Board made a representation'and was the one which allocated and made the lease.

That if the 7 acres belonged to the respondent the matter should have been resolved at the leasing of the land to the applicant and not at the trial. That DE4 was crafted in favor of the applicant. The respondent led evidence to prove he I 0 bought 250 acres and he applied for them and he should then have applied for 7 acres or 11 if the 7 acres or 11 acres were not his at the time of purchase.' It was simply because, the 4 acres was left out by the applicant and the respondent was tempted to over-run them but wanted to curve out none then the 4 acres and he • went for 11 acres. That Sembabule District Land Board report puts the 11 acres o \*T outside the respondent's 250 acres, and again the same Land Board which is said . to have received the respondent's application in 1995 gave him'the land in 2003 and in 2005 and gave the same land to the applicant and he contended that, no reasonable tribunal can believe what the board states in light of the multiple allocation and the only answer that, the land has 7 acres of land belonging to the 7-0 applicant.

The parties in their submissions disposal of this application? raised two issues which I think are relevant to the

- *the failure to indicate the way the applicant wants the judgment anri the applicant himself in his affidavit, is fatal to the application?* - *Whether the application from review, under section 83 of the CPA and 042 r (1) of the cjvji Procedure Rules?* - *3. On the issue of whether failure to state the way the applicant wants the or decree reviewed is fatal to the application. I have reviewed the • application, the submissions of both counsels and it is clear that the applicant wants the judgment decree/order of the judge in HCCS No. 004 on 910 reviewed on the basis that he mistakenly appended an* j *0 expired certificate to his pleadings on the belief that, the court wanted proof of ownership yet he had a valid certificate of title, which had been deposited in the bank, at the time of hearing and he mentioned it in court but this should not be the basis for depriving him of this land. Counsel for the applicant stated Article 126 (2) (e) to support his* | jT *contention that the article is there to correct mistakes like this. I do hot agree with his argument that the article is meant 126 (2) (e) to cover the error made, however I do support this use of article 126 (2) (e) for other reasons.*

The applicant applied for review, but didn't state in what way he wants the judgment/decree to be reviewed in his application and submissions, however, in the affidavit of the applicant, he narrated how, he filed the application various relief's including that, the unlawful entry on his land comprised in Mawogola Block 30 Plot 7 by the respondent in HCCS No.4/ 2010. That he attached a photocopy f his certificate of title which showed the term of 5 years had expired. Yet it had

been extended to full term of 49 years before he filed the suit in 2010 (See exhibit P.9) on the court record. That he had deposited the original certificate of title in Centenary Bank, Masaka Branch for a loan/ overdraft facility. That he didnt know he had given them a photocopy of the certificate of title which had expired but he gave it to him simply to prove that he was the registered proprietor of the disputed land. That at the hearing, it was agreed that, he was the registered proprietor of the land composed in Mawogola Block 30, Plot 7 and the court admitted the document he annexed and no question was raised about the expiry-of the title and he would have produced the valid done, if he had been asked.

That in his judgment, the judge found that, the lease he had appended had expired by the time the suit was filed and went ahead to decree that 7 acres which was part of his land was given to the respondent, based on the fact that, he didn't have a valid subsisting title to the hand.

In view of the above it is my considered opinion that, the applicant applied for review, and gave the reasons for it. It is clear from the above that, he had'a valid certificate of title which he mention in court at the trial in trial and the 7 acres crafted out on the grounds that he had no subsisting certificate of. title was an error which should have been noticed by the court.

It is further court's view that failure to state what and how the applicant wanted the judgment/ decree reviewed is a mere technicality that can be corrected by article; 126 (2) (e) of the Constitution, wherein the court is enjoined to administer substantial justice, without undue regard to technicalities and since the court after reading the pleadings, and submission knew what the applicant wanted, the ■| ire to state what he wanted in the specific words of the relevant legal provision | C2 I I V\*' •

was not fatal to the application, especially in view of the section 98 of the Civil Procedure Act and section 33 of the Judicature Act.

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Under section 98 of the Civil Procedure Act, the High Court has inherent powers to make such orders as are necessary in the interests of, and to prevent the abuse of Court process.

In section 33 of the judicature Act, the High Court has powers to grant remedies absolutely or on such terms as it thinks fit in the circumstances of the case. Similarly in the. instant case, since the court is grave of the applicant's wish for review and the reasons, it can grant the necessary orders and remedies without being specifically stated.

As regards the grounds for review, there are three instances in which review may be made to a judge as once is allowed. They are the following:-

*a) Discovery of new and important matters of evidence previously overlooked by excusable misfortune.*

*b) Some mistake or error apparent on the face of the record.* I

*c) For any sufficient reason as regards to (a) and (b) above (See Re Nakivubo Chemicals and Hon Ako! Oruthei Het. Mis. Ap'p. No.47 of 2007 at Soroti).*

Counsel for the respondent stated that, the applicant relied on (a) and (b) above. He cited the case of Edson Kanyabwera :Vs: Paskari Tumwebaza to support his contention On Monoher and Chitaley Vol. 5 1908 which counsel for the , submitted that the case is not applicable to the present case, on the applicant suui ..

contrary the court is of the view that when it is clear that whether the evidence produced, would have any effect on the judgment, that is a ground for review.

In the present case, basing on 0.42 r.1 which allows a person to apply for review for sufficient reason, it is my view that, there is no doubt that if the evidence of valid certificate of title their had been produced, the judge would^have fo the 7 acres belong to the applicant and was sufficient reason for revie

Consequently the application is allowed and judgment of **Hon. John ' ' '** J. dated 30th May 2012 delivered by the Asst. Registrar, has and High June 2012 is reviewed and his orders to curve out 7 acres of. land from applicant's land on Mawogola Block 30 Plot 7 are set as'

The respondent is to pay the costs of the application with interest at court rate, from the date of the ruling till payment in full.

**MARGARET C? OChJLI OUMO**

**JUDGE**

**4/2/13**

## **Present:**

- 1. Ndengana David - 2. Biretwa Eneriko - 3. Sarah Court Clerk