Onyaiti and 3 Others v Mwesigwa Byakutaga and Another (Misc Cause 13 of 2024) [2025] UGHC 94 (10 January 2025)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA MISC. CAUSE NO. 13 OF 2024

### 1. ONYAITI SAMUEL

#### 2. MANIRIHO GERALD

### 3. KYOMUHENDO GODFREY

4. BIRUNGI JENIPHER ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### 1. MWESIGWA STEPHEN BYAKUTAGA 2. COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

- The Applicants brought this application under Ss. 71 & 98 CPA, 39 of the $[1]$ Judicature Act and 0.52 rr. 1,2 & 3 CPR for orders that; - The $1^{st}$ Respondent surrenders to the $2^{nd}$ Respondent the certificate of a) title for his land comprised in FRV HQT 1123, Folio 13, Plot 1680, **Block 17 Bugahya** to the $2^{nd}$ Respondent for purposes of rectifying the said certificate of title and exclude the Applicants' land affected by the said certificate of title. - Costs of this application be provided for. $b)$ - The grounds of the application are set out in the affidavit of Onyaiti Samuel, $[21]$ the $1^{st}$ Applicant as follows: - 1. That the Applicants are in possession and are customary owners of plots located in Kiryatete West Cell, Western ward, West division Hoima City which neighbour the 1st Respondent's land and share a common boundary with the $1^{st}$ Respondent. - 2. That when the Applicants surveyed their respective plots of land with a view to bring their plots under the Registration of Titles Act, through their surveyor, they discovered that their plots were affected by the $1^{\rm st}$ Respondent's certificate of title on the cadastral map.

- 3. That the Applicants lodged a complaint to their area L. C 1 who referred them to the RCC Hoima City for resolution of the dispute and a meeting was held where it was agreed to open the boundaries of the $1^{st}$ Respondent's certificate of title. - 4. That upon opening boundaries, it was discovered that the $1^{st}$ Respondent's original plot 397, Bugahya Block 17 position on the cadastral map does not match with the land on ground due to displacement and/or a shift in position which can be solved by rectifying coordinates of the said plot. - 5. That it was recommended in the survey report that a rectification of **plot** 397, Bugahya Block 17 be done to remove the displacement so that the 1st Respondent's plot sits properly on the cadastral map to match the position on ground but the $1^{st}$ Respondent refused to surrender his certificate of title to the $2^{nd}$ Respondent for rectification. - 6. As a result, the Applicants have suffered loss and inconvenience as they cannot have their plots of land titled unless the 1st Respondent's Certificate of title is rectified. - The Application is opposed by the 1st Respondent, Mwesigwa Stephen $[3]$ Byakutaaga, through his affidavit in reply which is to the effect that; - a) The 1st Respondent is the registered owner of the suit land comprised in LRV HQT 1123, Folio 13, Block 17, Plot 397 at Kiryatete West which he has heavily developed. - b) That the Applicants are not customary owners of the land forming part of the 1st Respondent's land. - c) That the Applicants' purported purchase agreements are forgeries and that the 1st Respondent has never permitted any of the Applicants to transact in his land and therefore, there is nothing to rectify on his certificate of title. - d) That there are no survey issues on the $1^{st}$ Respondent's certificate of title and the facts and issues raised by the Applicants are highly contentious and cannot be addressed by way of affidavit evidence but a full trial. - The 1st Applicant filed an affidavit in rejoinder and stated that the suit land is $[4]$ not occupied by the 1st Respondent but it is occupied by the Applicants. That the $1^{st}$ Respondent's developments are inside his chain linked fence which is separate from the suit land and that there is nothing contentious to require a full trial as the issue between the Applicants and the $1^{st}$ Respondent has been

ably explained by the surveyor in the survey report attached to the affidavit in support of the Application.

# **Counsel Legal Representation**

The Applicants were represented by Mr. Aron Baryabanza of M/s Baryabanza $[5]$ & Co Advocates, Hoima while the 1st Respondent was represented by Mr. Simon Kasangaki of M/s Kasangaki & Co. Advocates, Masindi. Both counsel filed their respective submissions for consideration of court in the determination of this application.

Issue No.1: Whether the court has jurisdiction to entertain this application.

- 2: Whether the Applicants are entitled to an order directing the $1^{st}$ Respondent to surrender his certificate of title to the 2nd Respondent for rectification to exclude the Applicant's land. - 3: What remedies are available to the parties.

# **Determination of the Application**

The Applicants' case as gathered from the affidavit in support of the $[6]$ Application is that they are customary owners of their respective plots of land located in Kiryatete West cell, Western ward, West division Hoima City which they acquired by way of purchase and which neighbour the $1^{st}$ Respondent's land. In a bid to bring their respective plots under the Registration of the titles Act, the Applicants sought services of the District surveyor to survey and ascertain their status before applying to the Masindi District Land Board. The surveyor discovered that the Applicants' plots were affected by the $1^{st}$ Respondent's certificate of title on the cadastral map. As a result, a complaint was lodged with the area L. C1 chairperson who referred the matter the Resident City Commissioner (RCC), Hoima City. A meeting was organized to resolve the dispute and the parties agreed to open boundaries of the 1st Respondent's certificate of title. Upon opening boundaries, it was discovered that the 1st Respondent's plot position on the cadastral map does not match with the land on ground due to the shift in position but there was no encroachment by either party on the ground. According to the Surveyor, the displacement/shift in position of the 1st Respondent's plot is the issue which can be solved by rectification of the coordinates on the Respondent's plot to bring a balance between what is on ground and the map but the 1st

Respondent refused to surrender his certificate of title to the 2nd Respondent for rectification hence the filing of this application/suit.

### Issue No.1: Whether the court has jurisdiction to entertain this application.

- Counsel for the 1st Respondent submitted that this court lacks jurisdiction to $[7]$ handle this matter because of the 1st Respondent's claims of forgery and illegality of the Applicants' purchase agreements which in his opinion, cannot be resolved by way of affidavit evidence. On the other hand, Counsel for the Applicants submitted that the High Court has unlimited jurisdiction to handle any matter brought before it. - Section 98 CPA under which this Application is brought is to the effect that [8] this court or any other court has inherent power to make such orders as may be necessary for the ends of justice. Section 33 of the Judicature Act provides that;

"The High Court shall, in exercise of the jurisdiction vested in it by the Constitution, this Act or any other written law, grant absolutely or on such terms and conditions as it thinks fit, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it......"

In the instant case, the Applicants are aggrieved because their land is affected by the 1st Respondent's certificate of title. They are therefore seeking the intervention of court for orders to rectify the certificate of title. This court therefore, for ends of justice, has to ascertain and make the appropriate orders basing on the evidence available on record.

$\lceil \frac{1}{2} \rceil$

As regards the Respondent's claims of forgery and illegality of the Applicants' purchase agreements, the Respondent is duty bound to adduce evidence in support of this claim and in this case, no evidence was adduced by the Respondent that the agreements relied on by the Applicants were a forgery. Instead, the available evidence on record is that the Applicants own and are in possession of the areas/portions of land affected by the Respondent's certificate of title and are now seeking rectification of the title. This issue is resolved in the affirmative.

## Issue No.2: Whether the Applicants are entitled to an order directing the $1^{st}$ Respondent to surrender his certificate of title to the 2nd Respondent for rectification to exclude the Applicant's land.

- [10] Counsel for the Applicant submitted that the Applicants have adduced evidence of ownership of the suit land which neighbours the 1st Respondent's land comprised in LRV HQT 1123, Folio 13, Plot 1680, Block 17 Bugahya and are in possession of the same. That there is enough evidence that the suit land is not part of the $1st$ Respondent's land. That the surveyor who opened boundaries of the $1^{\mbox{\tiny st}}$ Respondent's land and recommended for rectification of the $1^{st}$ Respondent's certificate of title was agreed upon by the parties before the RCC Hoima and therefore, there is need to correct the shift/displacement in the land of the $1^{st}$ Respondent on the cadastral map to enable the Applicants acquire certificates of title over their respective pieces of land. - [11] Counsel for the $1^{st}$ Respondent submitted that the $1^{st}$ Respondent is the registered owner of the suit land and has developed the same. That the Applicants are illegally claiming the $1^{st}$ Respondent's land because the $1^{st}$ Respondent has never permitted any of the Applicants to transact in his land. He prayed for dismissal of the application with costs. - The Applicants' case is mainly based on the Survey Report made by Hoima $[12]$ District Staff Surveyor addressed to the Resident City Commissioner (RCC), Hoima City and copied to the 1st Applicant and the 1st Respondent; See annexture "F". The boundary opening survey was carried out under the request of the RCC in a bid to resolve the conflict between the Applicants and the 1st Respondent. The Report reads in part thus:

### "Findings

The plot 1680 Bugahya block 18 is a result of subdivision /mutation of plot 397 Bugahya Block 17, plot 1679 and plot 1680 together form the original plot 397 Bugahya block 17.

It was discovered that the original plot 397 Bugahya bock 17 position on the cadastral map does not match with the ground.

Because the plot has a displacement/shift in position, other surveys which are properly controlled appear to overlap the 397 block 17. The size and shape of the plot does not exist on the ground thus, the acreage of the land in the title is available on the ground as per the chain-link fence.

### **Conclusion**

On the actual/physical ground, there is no encroachment by either party and the boundary for the plot has been fenced well. It's the displacement in the position that is leading to the conflict and can be solved by rectifying the coordinates for the plot.

### **Recommendation**

A rectification of the plot be done to remove the displacement so that the plot sits properly on the cadastral map. This will bring balance between the ground and plan/map and will make possible other surveys to be plotted on the cadastral map."

- [13] From the foregoing, I find the survey report was clear. The $1^{st}$ Respondent did not contest the Report by way of offering an alternative one. The $1^{\rm st}$ Respondent is instead also relying on the same Report to show that the Applicants have no interest on his land and therefore are trespassers. The fact that the $1^{st}$ Respondent has developed the land in issue is not a legal bar for the 2nd Respondent to rectify the title accordingly and/or be a ground to bar the Applicants from enjoying their equitable possessory interests on the portions of land in issue or have their portions of land brought under the RTA as they intend to do. - In the premises, I find that the undisputed Survey Report clearly show that $[14]$ the 1st Respondent's certificate of title does not match with the ground and therefore it had included the portions of land occupied and owned by the Applicants. This is therefore a proper case for rectification of the impugned certificate of title for purposes of properly sitting the title plot on the cadastral map. The Application is therefore granted with the following orders; - 1. The 1st Respondent, Mwesigwa Stephen Byakutaaga surrenders his certificate of title for land comprised in FRV HQT 1123, Folio 13, Plot 1680, Block 17 Bugahya to the Commissioner Land Registration, 2nd Respondent for purposes of rectifying the said certificate of title to exclude the Applicants' land. - 2. The $2^{nd}$ Respondent is ordered to rectify the $1^{st}$ Respondent's certificate of title by excluding therefrom the Applicants' land to enable the Applicants register their land under the Registration of titles Act. - 3. The Applicants are granted costs of this Application.

I so order.

Dated at Hoima this 10th day of January, 2025.

...

Byaruhanga Jesse Rugyema **JUDGE**