Ssengendo and 2 Others ( as administrators of the Estate of the late Sebowa ) v Male and 2 Others (Miscellaneous Cause No. 5 of 2020) [2021] UGHCLD 458 (2 July 2021) | Cancellation Of Title | Esheria

Ssengendo and 2 Others ( as administrators of the Estate of the late Sebowa ) v Male and 2 Others (Miscellaneous Cause No. 5 of 2020) [2021] UGHCLD 458 (2 July 2021)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI MISCELLANEOUS CAUSE NO. 005 OF 2020

1. SSENGENDO GODFREY

5 2. NDAGIRE SARAH………..…. APPLICANTS

3. NAKIBUUKA BETTY (AS ADMINISTRATORS

OF THE ESTATE OF THE LATE SEBOWA ENOSI)

VERSUS

## 1. EDISA MALE

- 10 2. CHRISTINE NAKIRABIRA……….... RESPONDENTS - 3. THE COMMISSIONER LAND REGISTRATION

# BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK, JUDGE

#### Ruling

15 The applicants brought the instant application by Notice of Motion under Section177 of the Registration of Titles Act, Section 98 of the Civil Procedure Act and Order 52 Rules 1 and 2 of the Civil Procedure Rules against the respondents.

The applicants Sought to be heard on the following orders;

- 1. That the 3rd respondent be ordered/compelled to cancel the names of Edisa - Male and Christine Nakirabira, the 1st and 2nd 20 respondents herein and defendants in Civil Suit No. 005 of 2019 from the certificate of title of land comprised in Mawokota Block 98 Plot 35 situate at Lwanga measuring approximately 6.0 acres. - 2. The 3rd respondent be ordered to recall the said certificate of title from the 25 said Edisa Male and Christine Nakirabira and/or cancel it and restore the same to its original proprietor, Sebowa Enosi, the applicant's late father. - 3. The costs of this application be provided for.

The application was supported by the affidavit sworn by the 1st applicant and the grounds briefly are as here under;

30 1. The applicants have successfully recovered land comprised in Mawokota Block 98, Plot 35, situate at Lwanga measuring approximately 6.0 acres

from Edisa Male and Christine Nakirabira, the 1st and 2nd respondents herein and defendants in Mpigi Chief Magistrate's court, Civil Suit No. 005 of 2019 upon proving that the latter obtained the same fraudulently.

- 2. The Magistrate's court directed the applicants to this court to seek orders that the 3rd respondent cancels the names of the 1st and 2nd 5 respondents from the certificate of title in land comprised in Mawokota Block 98, Plot 35, situate at Lwanga measuring approximately 6.0 acres. - 3. That it is just and equitable that the applicants be granted the above orders.

The respondents did not file an affidavit in reply despite being served through 10 substituted service. The matter therefore proceeded exparte.

# Background:

Judgment and decree were issued in favour of the applicants on the 18th day of July, 2019 by His Worship Muinda Tadeo against the 2nd and 3rd respondents in Civil Suit No. 005 of 2019. In the said suit, the trial Magistrate found that the 2nd

and 3rd 15 respondents had fraudulently registered themselves onto the applicants' land comprised in Mawokota Block 98, Plot 35, situate at Lwanga measuring approximately 6.0 acres.

The lower court had no powers to order for cancellation of the certificate of title, thus the trial Magistrate directing the applicants to apply to High Court seeking an

order that the 3rd respondent cancel the names of the 1st and 2nd 20 respondents from the Certificate of Title of land comprised in Mawokota Block 98, Plot 35, situate at Lwanga measuring approximately 6.0acres.

## Representation:

M/s Lugoloobi Associated Advocates represented the applicants.

#### 25 Resolution:

Counsel for the applicants cited section 177 of the Registration of Titles Act 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 30 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."

Counsel for the applicants also cited the case of Re: Ivan Mutaka [1981] HCB 28, where it was held that; in order to rely on Section 185 (now 177) of the Registration of Title Act and have the register book rectified by cancellation, the applicant who invokes it has to satisfy court that he/she has recovered the land,

5 estate of any interest in question by any proceedings from any person registered as proprietor of the land.

Counsel for the applicants submitted that judgment and decree were passed in favour of the applicants on the 18th day of July, 2019 by His Worship Muinda Tadeo against the 1st and 2nd respondents in Civil Suit No. 005 of 2019. That in the

- said judgment the trial Magistrate confirmed that the 1st and 2nd 10 respondents fraudulently registered themselvesonto the applicants' land comprised in Mawokota Block 98, Plot 35, situate at Lwanga measuring approximately 6.0 acres. That this is supported by the certified copies of the said judgment, decree and record of proceedings which are exhibited in the applicants' affidavit. - 15 Counsel for the applicants added that the applicants also provided the original copies of the said land and search report as was requested by this court.

Counsel for the applicants went ahead to implore this court to invoke its powers under Section 98 of the Civil Procedure Act and Sections17 and 33 of the Judicature Act to grant the orders as sought by the applicants.

20 It is my considered view that in order for court to grant consequential orders under Section 177 of the Registration of Titles Act the applicants must prove that they recovered the land by court order against the registered proprietor and that the proceedings leading to the recovery are not barred.(See: Nantongo Harriet & 2 Others v. Namuyiga Rose, Miscellaneous Application No. 64 of 2016). Thus, the 25 land must have be registered and so is the land in the instant case.

In the instant case the trial Magistrate found that the respondents had fraudulently acquired the Certificate of Title in total disregard of the applicants' interest. The suit land was then decreed to the applicants. The applicants did also provide an original certificate of title and a search report as ordered by this court.

30 I accordingly, find that theapplicants did prove to the satisfaction of this court that the suit land was decreed to them therefore there was recovery of land in the lower court and the same was not barred by statute.

The application is hereby allowed with the following orders;

1. The 3rd respondent is ordered to cancel the names of Edisa Male and Christine Nakirabira, the 1st and 2nd 35 respondents from the certificate of title of land comprised in Mawokota Block 98 Plot 35 situate at Lwanga measuring approximately 6.0 acres.

2. The 3rd respondent is ordered to recall the said certificate of title from the said Edisa Male and Christine Nakirabira and/or cancel it and restore the same to 5 its original proprietor, Sebowa Senosi, the applicant's late father.

3. Applicants bear their own costs.

…………....……………..

OYUKO ANTHONY OJOK

10 JUDGE

22/07/2021