Siima Lule and Another v Namiiro and 5 Others (Misc Cause No. 101 of 2021) [2022] UGHCLD 147 (9 August 2022)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

#### **MISCELLANEOUS CAUSE NO.101 OF 2021**

#### $\mathsf{S}$ 1. SIIMA ARTHUR LULE

2. TWESIGYE NIXON:::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. STELLA NAMIIRO

#### 2. COMMISSIONER LAND REGISTRATION

- 3. BAKOJJA RICHARD $10$ - 4. MUHANGI JUSTUS - 5. NAKIBUUKE HARRIET - 6. TINDAMANYIRE TUMUSIIME TEDDY:::::::::::::::::::::::::::::::::::

#### 15 Before: Lady Justice Alexandra Nkonge Rugadya.

### **RULING:**

#### Introduction:

The applicants filed this application under section 177 of the Registration of Titles Act Cap.230, Section 33 of the Judicature Act Cap.13, and Section 98 of the Civil **Procedure Act Cap. 71** seeking orders that;

a. The $2^{nd}$ respondent cancels and deregisters from the certificates of title of land comprised in Buwekula Block 363 plots 36, 37, 38 & 39 Mubende District (suit land) in the names of $3^{rd}$ , $4^{th}$ , $5^{th}$ , & $6^{th}$ respondents;

#### 25 b. Costs of the application be provided for.

### Grounds of the application:

The grounds upon which this application is premised are contained in the affidavit in support deponed by Mr. Twesigye Nixon, the 2nd applicant wherein he states inter alia that the 1st respondent while working as a Senior Land Management officer of Mubende District, without 30 following procedure influenced the Kitega county area land Committee leading to the creation of title for customary land; and processed the certificates of title for the $3rd$ , $4th$ , $5th$ , & $6th$ respondents at the detriment of the applicants' rights of ownership of the said land.

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That the 1s1 respondent was charged with the offence of influencing and peddling and convicted of the same by the Buganda Road Chief Magistrates Court vide Crimtnal Session Ccse IVo. O777 of 2015, and the procedure for conversion and creation of the certificates of title over the customary land in favor of the 3'd , 4,h , 5,h & 6th respondents was adjudged to be illegal.

In addition, that the applicants have for a long period of time been in occupation of the suit land whereon they have set up their family homes, burial grounds, as well as plantations and the current registration of the 3.d, 4th, sth, and 6rh respondents are an impediment on their right to use the suit land.

Further, that pursuant to the judgement issued earlier, this court has the powers to issue consequential orders directing the 2",r respondent to cancel the freehold certificates of title issued in the names of the 3.d, 4th, sth, 6th respondents. 10

The 1st, 3rd, 4rh & 6th respondents opposed the application through their respective affidavits in reply. The 1"t respondent in her affidavit objected to the application on grounds that the

same is the same is not only incompetent, frivolous and vexatious but it also has no merit and is not maintainable in law. 15

That the affidavit in support of the application contains falsehoods that the 1"r respondent was acquitted on the charge of abuse of office by the trial court, convicted of the offence of influence peddling but the conviction was overturned on appeal by the I{igh Court. (Ref

#### High Court Criminal Appedl No. O76 of 2079. 20

In addition, that the other respondents who are the registered proprietors of the land issue were never party to any of the criminal charges or the proceedings in the above criminal trial and that no order as to ownership or recovery of the land was ever issued despite the 1"t respondent's conviction since the charges were never related to ownership or recovery ofland.

25 Furthermore, that the 1"t respondent is not the registered proprietor of the land in issue for the applicants to seek the orders herein since there are no grounds for a consequential order to issue and that the inclusions of the 1"t respondent in the application is tainted with malice and ill will as the applicants have no claim against her.

The 3.d respondent on his parl objected to the application on grounds that the same was bad in law, incompetent and abuse of court process and prayed that it should be dismissed with costs because court cannot cancel his certificate of title without giving him a fair hearing. 30

He also denied knowledge of any of the acts allegedly committed by the 1"t respondent as mentioned by the applicants and went on to state that because the 1"t respondent's conviction of the offence of influence peddling at the Anti-Corruption Court was quashed by the High

Court, the same does not support the applicants' case. 35

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In addition, that since the applicants have no interest in the suit land and that no court has ever made any such pronouncement adjourning the procedure for conversion, the applicants shall be put to strict proof thereof and that the applicants cannot therefore be granted any consequential orders to cancel the certificate of title by way of this cause as the same would

5 not only be unconstitutional, but also against the doctrine of fair hearing especially where allegations of fraud come into play.

In his affidavit in reply, the 4rh respondent averred that he has at all material times been the registered proprietor of the land comprised in Buurekula Block 362 plot 37 and that while the applicants have filed the instant application seeking consequential orders against him in

respect ofthe same, the same can only be issued upon the applicants presenting to this court an order of recovery of land against him. 10

That his constitutional right to own property can only be taken away upon being accorded the right to defend himself through a fair hearing and a just court process which was not the case in the criminal trial which is the basis upon which the applicants want to take the land.

15 That he was neither a party or a witness to the said criminal proceedings which the applicants are relying on to deprive him of his land.

Further, that the applicants are taking advantage of the court process to acquire the said land because the said criminal proceedings and subsequent judgement relied on by the applicants never decreed that the suit land belonged to them and that since no judgement

has ever been entered strictly or specifically for recovery of land against him, depriving him ofthe suit land on the basis ofthe said court proceedings and judgment, to which he was not party is unconstitutional and that it is just, fair and equitable that the instant application is not granted. 20

The 6s respondent equally opposed the application through her affidavit in reply wheretn she stated inter alia l]nal while she is the registered proprietor ofland comprised in Buuekula Block 362 Plot 39, there has never been any legal proceedings against her, whether civil or criminal in any court of law or any order for recovery of the said iand against her. 25

That a consequential order for cancellation of her certificate of title and deregistration of her name from the register can only be done if there is an ordcr for recovery of land issued against her as the registered propdetor, in favor of the applicants.

That the criminal proceedings and subsequent judgment referred to by thc applicants in their application were never against the 61h respondent and since no legal proceedings have ever been commenced in regard to her title to land, depriving her of the land on the basis of court proceedings or subsequent judgment to which she was never a party is unconstitutional as

the same would deprive her of the right to own property and the rules of natural justice. 35

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Further, that the applicants have never been decreed in any court to be the legal owners of the suit land and just want to use this court to acquire what has never been decreed to be theirs and that it isjust, fair and equitable that this application is denied.

The applicants did not hle any affrdavits in rejoinder to the affidavits in reply deponed by the 1st, 3rd & 6m respondents. 5

### Re,,"esen.to,ion:

The applicants were represented by M/s Maldes Ad.uocates while the 1s1, 3d, 4rh and 6rh respondents were represented by M/s RuakaJuuzi & Co. Adoocdtes, M/s Muwetna & Co. Ad.uocqtes q.nd. Solicitors, M/s Serwadd.a & Co. Adaocqtes and M/s No,jjurno', Nakqlule & Co. Aduocates respectivell .

Counsel for the parties filed their respective written submissions in support of their respective clients'cases as directed by this court.

Although the 51h respondent did not file an affidavit in reply opposing the application, through her lawyers M/s Ruhundi & Co. Aduocates she filed written submissions wherein a preliminary point of law was raised.

## Consid.erqtion of the dpplication bu Court.

I have carefully read and reviewed the pleadings above, evidence and the arguments on record. I am persuaded that this application raises a point of law which must be determined before divulging into the application itself. The issue for consideration is whether or not this application is properly before this court.

# Resolution of the preli'Iri,raru obiection.

The applicants brought this application undcr thc provisions of Section 777 of the Registration of Titles Act Cap.2SO which grants the IJigh Court powers to cancel a certificate of title, as sought presently. It provides that;

iupon the recoaery of ang land, estate or lnterest bg ang proceedi^g Iron the person registered as proprletor thereo.f, the High Court tnqg ln ang case in which the proceeding is not hereln expresslg bq"red, direct the Commlsslon,er to cq.ncel dng certifi.cate o,f title or lnstrument, or ang entry or tnetnorlal ln the Reglster Book relatlng to thd't land, estate or interest, and to substitute such certifr.cdte of title or entry as the clrcumsta'nces of the cdse require; and the Commissioner shall giue effect to that order." 25 30

The above provision was considered in the case of Park Rogal Ltd ls Ugand.a La.nd Commissions Miscellaneous Cause No.46 of 2014 whcrein it was observed that while the above legal provision provides for cancellation of a certificate of titlc, the same would be

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incidental to the recovery of land by an applicant pursuant to proceedings that are not otherwise expressly precluded by the Act.

It was also held in Re luan Mutaka [79A71 HCB 2A ft was held that in order in order to rely on the provisions o, section 785 (now section 777) of the RTA and have the register book

5 rectified by cancellation, the applicant who invokes it 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.

ln Re Habib Lubuama [7997] HCB 74il was held that an order stemming from a criminal case can form a basis for a consequential order.

Going by the above law, in order to receive a consequential order with respect to the suit land, and a rectification of the register, the applicants must prove to this court that they recovered the land by court order against the registered proprietors thereof and that such proceedings are not expressly bared by statute. 10

In the instant case, the application has not established that there was recovery of the suit tand following a due process of law as required by section 777 of the R?A. Furthermore, save for the l"t respondent, the rest of the respondents were not party to the criminal case which the applicants seek to rely on. 15

The circumstances of this case therefore warrant proof of actual ownership of the suit land by the applicants, which would call fora formal determination of all the issues in contention

herein prior to any decision that would result in the cancellation of the 1"t, 3rd, 4lh1 5th & 6th respondents' legal interest in the suit land. 20

Issues concerning possible fraud and illegalities are matters of evidence which need proof in court by the calling of evidence as deponed to by respondent in the affidavit in reply. There are issues to do with illegalities in obtaining the title, fraud, injunctions which a blanket notice of motion supported by affidavit evidence cannot sufficiently prove-

The supreme court held in the celebrated case of Fredrick J. K- Zadbue as, Orient Bd'rk Ltd. and Others: Ciuil Appeal No. 4 Of 2006 that "an allegation of fraud needs to be fuqg .:,nd carefullg inquired into. ?raud is c serious mat\*er."

The import of all this to the proceedings before court now is that where a matter is contentious, and involves a considerable need to call oral evidence to prove further the facts in controversy, then proceeding by afhdavit evidence either by originating summons or other motions as in this case becomes improper. \Zalwango Elioason dnd No'kalem(: MarLqrn a. Dorothg Walusimbi and Henry Bijjumuko Or. Sum..3/2O73). 30

The instant application in my opinion raises serious allegations of illegalities that ought to have particularized and in respect of which the applicants should have adduced cogent 35

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evidence, which cannot be done by affidavit evidence and therefore, the procedure adopted has been found improper.

All in all, the instant application which raises triable issues is improperly before this court. It is accordingly dismissed with costs to the $1^{st}$ , $3^{rd}$ , $4^{th}$ , $5^{th}$ and $6^{th}$ respondents.

$\mathsf{S}$

$\overline{6}$

Alexandra Nkonge Rugadya Judge

10 9th August, 2022.

Delveed by enail ambay 9/8/2022