Vamee Industries Limited v Commissioner Land Registration & Another (Civil Appeal 342 of 2022) [2024] UGCA 91 (19 April 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

$\mathsf{S}$

## **CIVIL APPEAL NO. 342 OF 2022**

## [*Arising out of Miscellaneous Cause No. 1 of 2022*]

## (Coram: Buteera, DCJ; Bamugemereire and Gashirabake, JJA)

#### VAMEE INDUSTRIES LIMITED =============APPELLANT 15

### **VERSUS**

### 1. COMMISSIONER LAND REGISTRATION. $==$ ==RESPONDENTS 2. ATTORNEY GENERAL 20

[*Appeal from the Ruling and orders of the High Court of Uganda at Mukono Miscellaneous Cause No. 1 of 2022 (Florence Nakachwa, J) dated 13th July* 2022]

## JUDGMENT OF CHRISTOPHER GASHIRABAKE, JA

## 1. Background.

- This is an appeal arises from the ruling of Hon. Lady Justice Florence 30 $1$ Nakachwa in the High Court of Uganda at Mukono in Miscellaneous Cause No. 1 of 2022 delivered on 13th July 2022. - $2\overline{ }$ The Appellant herein lodged the Application in the High Court at Mukono against the Respondents seeking the following orders; - a) A declaration that the orders of the $1^{st}$ Respondent as constituted in an amendment of register letter dated 25th August 2021 was illegal, unlawful and calculated to expropriate the Applicant's land without due compensation; - b) A declaration that the 1st Respondent did not have the legal mandate to make the orders it did as the Applicant was the lawful

5 registered proprietor of land comprised in Block t1S Plot 458 Land at Nantabulirwa and the said title was not issued in error or fraud established against the Applicant;

> c) A declaration that the r"t Respondent could not constitute itselfin a quasi-judicial organ to cancel the Applicant's titles issued under Article z4o of the Constitution and in contravention of Article z4r of the Constitution without any evidence of fraud or error on record.

d) An order quashing the respondent's order of cancellation of the Applicant's Certificate of title to reinstate the same.

e) An order of prohibition and injunction prohibiting the Respondents from issuing any such orders in respect of the matter complained.

- f) An injunction restraining the respondents from harassing, intimidating, arresting the agents, servants and employees - g) Costs of the Application - h) Any other relief deemed fit by the Honourable Court. - 3l The Application was lodged on the basis of facts contained in the Affidavit in support deponed by Vinay Dawda, a Director of the Appellant, wherein it was stated that; - a) The Appellant is the registered proprietor of land comprised in Block rr3 Plot 485 Land at Nantabulirwa. - b) The Appellant's title was cancelled by the r"t Respondent without any error on record indicating that the Appellant's title was issued in error or fraudulently procured. - c) That in contravention of relevant law, the tst Respondent adjudicated upon a matter in which they did not have jurisdiction by a cancellation notice without there being any legal or Iawful order cancelling the Appellant.

- 5 d) The Appellant was not afforded an opportunity to be heard as required by Article e8 and 44 of the Constitution. - e) That there was overwhelming evidence that the land was laufi:lly acquired through the Uganda Land Commission and never belonged to any entity. - 0 That there is no dispute concerning the land which the Appellant owns and the respondent had no basis whatsoever to cancel the applicant's land title. - g) The law does not empower the rst Respondent to cancel titles on grounds that they belonged to another individual, communal or another entity without a court order to that effect. - h) The Appellant has never been served with any application to cancel their title or any other subsequent hearing notice and the Appellant only discovered that the t.t Respondent had issued an amendment of the register dated z5ttt August 2021 without being duly informed. - i) In contravention of the natural principles of justice and or the law, the Applicant was not granted a fair hearing, and the amendment of the register should be set aside. - The essence of the facts pleaded was that the Appellant's Certificate of title was cancelled without any error on record being ascertained by the r.t Respondent in violation of Article z6 of the Constitution of the Republic of Uganda. In addition, the Appellant was not afforded an opportunity to be heard as is required by Articles z8 and 44 of the Constitution. 25 4l - 30

The t"tand 2nd Respondents lodged an Affidavit in reply deposed by Wamala Ali, a Senior Registrar of Titles in the Ministry of tands, Housing and Urban Development wherein it was stated that: 5l

- 5 a) Sometime in zo16, M/S Wameli & Co. Advocates filed Execution Mtscellaneous Application No. 95 of 2016 against the Administrators of the Estate of the late H. H. Str Daudi Chu;a II seeking orders of execution of the decree obtained from the High Court (Family Division) in Originating Summons No. 9 of 2014. The preferred mode of execution was attachment and sale of estate land described as Kyaggwe Block rr3 Plots 9, 457 and 458 at Nantabulirwa. - b) The High Court issued orders directing the Commissioner surveys and mapping to confirm whether the land comprised in Kyaggwe Block rr3 Plots 457 and 458 belonged to the estate ofthe late H. H Sir Daudi Chwa II. On r"t June zor5, the Commissioner issued deed plans and cadastral sheets which indicated that the land belonged to the Estate of the late H. H. Sir Daudi Chwa II in his private capacity. - c) By order of Court dated rzth April zo16, the Deputy Registrar Execution Division issued a warrant of attachment and sale of land comprised in Kyaggwe Block u3 Plots 9, 457 and 458 at Nantabulirwa. By another order dated zoth October 2016, the Deputy Registrar issued consequential orders directing the Commissioner Land Registration and/or the Principal Registrar Mukono land office to process and issue certificates of title for land described as Kyaggwe Block rr3 Plots 9, ro97, ro98, 1099, 11oo, rror and 1102 land at Nantabulirwa in the names of listed respective buyers, namely; Ubora Holdings Ltd, Abubakari Pendo Zubairi, Abdul Karim Hussein, Winfred Bugingo and Luwangula Estates Ltd. - d) It was discovered that the land described in the order by the Deputy Registrar was already titled and owned by Mash Investments Ltd, Vamee Industries Limited, Steel and Tube Industries Limited, JK Technologies and Inter Africa Investments and about the existence of the Court order.

1.5

- 5 e) The leasehold title holders in separate suits sued the Commissioner Land Registration for orders that their titles should not be cancelled and orders were issued that cancellation should be halted. Among these suits was Vamee Industries Limited v Attorney General & z others v Commissioner Land Registration H. C. C. S No. 2o4 of 2oL7. - f) The Applicant is by the present action seeking to enforce individual rights exclusively under the domain of private law. The said rights derive from cancellation of a certificate of title of land comprised in Block rr3 Plot 485 situate at Nantabulirwa leased to the applicant. - g) The remedy of judicial review is not available to the Applicant. Jurisdiction in judicial review is exercised in a supervisory manner and not to vindicate the rights of the party seeking judicial review. The Appellant's grievances can be addressed by an ordinary action resolution of which will entail the court to investigate the circumstances of cancellation of title. - h) It is trite that prerogative orders will only issue where there is no alternative remedy and the Applicant has not demonstrated lack of an alternative remedy or that the alternative is inconvenient, less beneficial or less effective. The Application is untenable and an abuse of the process of the court.

## z. Decision of the High Court.

6l In the ruling delivered on 13th J:uly zozz, Trial Judge observed that the Appellant also filed Miscellaneous Cause No. z of zozz between the same parties and arising from the same facts in the application and seeking the same orders, with the only difference being that the other application sought orders in judicial review. The learned Judge held that at the heart of the application is a claim for land and the format of the application does not allow the court to fully investigate all the court orders issued in regard to the suit land and the circumstances in which

5 they were issued, and considering that she had no opportunity to look at those court files, the suit should have been lodged by way of ordinary Plaint so that in the interest of justice, the court can effectively and completely adjudicate upon the disputes regarding the suit land. The application was dismissed.

# 3. GroundsofAppeal

- 7) The Appellant lodged a Memorandum of Appeal on 2nd September zozz and raised the following grounds therein: - r. The trial Judge erred in law when she held that the applicant ought to have filed the Application for enforcement of human rights by way of ordinary plaint. - z. The learned Judge erred in law and fact when she failed to find that the Appellant's right to be heard enshrined in the constitution was violated. - 3. The learned Judge erred in law and fact when she failed to find that the Appellant's right to fair treatment was violated. - 4. The trial judge erred in law and fact when she refused to grant the Appellant any remedies for their grievances. - Bl I have deliberatelyset out 4 grounds out of the 5 grounds of Appeal as set out in the Memorandum of Appeal because as I observed earlier the Appellant's grounds z and 3 are identical/ repeated.

## 4. Representation

9l When this Appeal was called for hearing on 22nd November 2022, Mr. Yesse Mugenyi appeared for the Appellant. The rst Respondent was

5 represented by Mr. Moses Ssekitto. Mr. Johnson Natuhwera from the Attorney General's Chambers appeared for ttre znd Respondent.

rol At the hearing, the Appellants adopted their written submissions as lodged in the Court's registry. Counsel for the t"t Respondent also adopted their written submissions as lodged. The z"d Respondent was given leave to file their written submissions, which was duly done. I have considered the submissions ofthe parties duly lodged in the court and the authorities cited thereunder in the preparation of this judgment.

#### 5. Submissions bythe Appellant 15

- 111 In relation to Ground One, counsel for the Appellant submitted that it is not in dispute that the Appellant lodged the Application for human rights enforcement by way of Notice of Motion alleging the violation of the right to property provided under Article z6 of the Constitution, the right to be heard provided under Article z3 of the Constitution, the right to fair treatment under Article 44 of the constitution, which were all premised on the provision of Section 3 of the Human Rights (Enforcement of Rights) Act 2019. It was submitted that the learned trial Judge did not address herself properly on the law relating to the enforcement of human rights, particularly Section 6(S) of the Human fughts (Enforcement) Act 2019. The Appellant averred that the Human fughts (Enforcement) Act clearly provides for an application as opposed to a civil suit, and therefore the decision was erroneous. It was further submitted that the materials before the court, in the affidavits, were sufficient to enable the court make an informed decision. Counsel relied on Sinba (K) & Others v Uganda Broadcasting Corporation, Civil Appeal No. 3 of zor4 in support of this argument. - L2l In relation to Ground two, it was submitted that the learned Judge erred in law and fact when she failed to find that the appellant's right to

5 properly was violated. The appellant submitted that they were the registered proprietor of land comprised in Block tr3 Plot 459 land at Nantabulirwa and are still in possession of the land. There is no court order cancelling their certificate of title on grounds of fraud and the title cannot be impeached unless section 176 and r77 of the Registration of Titles Act is complied with. The Appellant submitted that the Respondents expropriated their property without following due process and the provisions of the land acquisition Act, and in violation of Article z6 of the Constitution. The Appellant further submitted that a warrant of attachment and sale could not be issued to attach the Appellant's land as they were not parfy to the proceedings in the originating Summon No. 9 of zor4. 10 15

131 In relation to Ground three, counsel submitted that the learned Judge erred in law and fact when she failed to find that the appellant's right to be heard as enshrined in the Constitution was violated. Counsel cited the case of Hon. Anifah Bangiranah Kawooya v Attorney General & National Council for Higher Education, Constitutional Petition No. 4z of zoro for the definition of a fair hearing. It was submitted that the Appellant's right to a fair hearing was compromised and adulterated due to undue influence that resulted in the znd Respondent endorsing a consent judgment in which they agreed to activate new titles in the land registry. Counsel further submitted that the facts of this case are on ali fours with the case of Leads Insurance Limited v Insurance Regulatory Authorig, Civil Appeal No. 9r ofzo13. 20 25 30

rd In relation to Ground Four, the Appellant submitted that their right to fair treatment enshrined in Article 4z of the Constitution was violated. It was submitted that the letter dated r5,t' March zor7, which requested the Appellant to surrender their title on the grounds that they are in

receipt of an order to issue and transfer land had no basis in law. Furthermore, the Appellant obtained an order to maintain the status quo. However, the Respondents proceeded to cancel the Certificate of title and did not vacate the order. There is no evidence to show that the znd Respondent invoked the procedure under Section 9r ofthe Land Act. There is no evidence that prior zr days' notice in the prescribed form was served on the Appellant, that the Appellant was availed with the opportunity to be heard and there is further no evidence to show that the znd Respondent communicated their decision to cancel the Appellant's ceftificate of title and the reason for that decision. It was further submitted that the reason that the Respondents were acting out of fear, duress and intimidation is not tenable and is not a ground provided for under the Constitution as a basis for denying the Appellant the right to be treated fairly. 10 15 5

20 \$l The Appellant prayed for a declaration that the order of the t't Respondent constituted in an amendment of the register dated z5ttt August 2o2r was illegal and unlawful and was calculated to expropriate the Appellant's land without due compensation, a declaration that the 1"t Respondent did not have the legal mandate to make a decision embodied in their amendment of the register of z5th August 2o2r as the Appellant was the lawful registered proprietor of the land as comprised in Block :.r3 Plot 458, a declaration that the t't Respondent could not constitute itself in a quasi-judicial organ to cancel their title having erroneously issued duplicate certificates of title. In addition, the Appellant prayed for consequential orders to expunge all illegal titles created out of the Appellant's certificate of title arising from a warrant of attachment of sale in Originating summons No. 9 of zor4 and an order of prohibition restraining the Respondent from issuing any orders in respect of the matters in the suit and costs of the appeal. 25 30

## s 6. Submissions by the r't Respondent

- 161 In relation to Ground One, the lst Respondent submitted that it only followed Court orders strictly in cancelling the Appellant's certificate of title. It was submitted that the Appellant lodged this application for judicial review as a disguised application for human rights enforcement which constitutes an abuse of couft process. It was further submitted that the orders sought of the court are discretionary in nature and the court is at liberfy to refuse to grant them depending on the circumstances of the case. The Application sought orders specific to judicial review which are stipulated in Paragraphs 4, 5 and 6 of the Notice of Motion wherein they sought orders quashing the respondent's order of cancellation of the title and to re-instate the same, order of prohibition and injunction as well as an injunction to prevent the respondents from harassing, intimidating, arresting agents, servants and employees. 10 15 20 - L7l It was submitted that the r.t Respondent was compelled by Court order to cancel the certificate of title of the Appellant, and as such, could not have infringed on the right of the Appellant to own property as alleged. - 25

181 It was further submitted that the Appellant was afforded a right to be heard through the issuance of a notice dated l5th March 2017 (paragraphs 17 and r8 of the Affidavit in reply), which informed the Appellant of the existence of a court order ordering cancellation. Counsel cited the decision in Housing Finance Bank Ltd & Another v Edward Musisi, Miscellaneous Application No. r58 of zoro, to assert the general principle regarding respect for Court orders.

5 191 The r"t Respondent further contended that they already implemented the court orders of cancellation as led in evidence and therefore the orders of certiorari or an injunction sought cannot suffice. Such remedies will only be granted to prevent ongoing or future violations.

# 10 7. Submissions by the z"d Respondent.

- 15 2ol The znd Respondent, in relation to ground one, submitted that the learned trial Judge did not err when she held that the Appellant ought to have filed a suit by way of ordinary plaint. The appellant is seeking to substitute normal procedure for judicial review by seeking for orders specific to judicial review in an application for human rights enforcement which is an abuse of court process and incurably defective. The Respondent set out the orders sought under paragraphs 4, 5 and 6 of the Notice of Motion and submitted that these remedies are unique to judicial review. It was further submitted that the Commissioner Land Registration was compelled by court to cancel the certificate of title of the Applicant. Counsel cited the decision in Editors Guild Uganda Limited and Another v Attorney General, High Court Miscellaneous Cause No. 4oo of zozo to submit that the value of the right to apply to the High Court for enforcement of human rights will be diminished if it is allowed to be misused as a general substitute for normal procedures for invoking judicial control of administrative action. 20 25 - 30 2Ll In relation to ground 2, the 2nd Respondent submitted that the learned trial Judge exercised her discretion judiciously when she found that the application does not allow the couft to fully investigate all the orders in respect of the suit land and the applicant ought to have instituted the action as an ordinary Plaint. The learned trial Judge correctly addressed her mind to the law, and the Appellant's right to own property is 35

- guaranteed under Article z6 ofthe Constitution which was not violated. The evidence in paragraph rz ofthe Affidavit in reply shows that the r"t Respondent received a court order, which had to be implemented. 5 - 221 In relation to ground 3, counsel submitted that the Registrar had powers to make decisions pursuant to Section 9r of the l^and Act without recourse to any court or tribunal. The office of the Registrar can also conduct a hearing to determine the rights of the parties bearing in mind the principles of natural justice key among which is the right to a fair hearing. In this case, the r.t Respondent issued a notice of hearing dated 9,t February zozr and the hearing was scheduled for 5th March 2021. However, despite being duly served, the Appellant did not appear. Therefore, the right to a fair hearing was not violated in this case. 15 10 - nl Relating to grounds 4 and 5, counsel for the znd Respondent submitted that the present appeal bears elements of judicial review in an application for enforcement of human rights, and the remedy of judicial review is not available to the Appellant. 20

### 8. Consideration of the Appeal

- 241 I have carefully considered the record, the submissions and the law and authorities referred to by the respective counsel and those not canvassed. - 2Sl Considering that this is a first appeal from the decision of the High Court, this Court is alive to its duty, which is worth reiterating, that it is expected to arrive at its own conclusions from the evidence on record. The duty of this court also extends to place/ attach the greatest weight to the opinion of the trial judge who saw/ perceived the witnesses, pursuant to the provisions of Rule go (t) (a) of this Court's rules. The 30 35

5 decisions in Watt v Thomas [gqZl z AJ-L ER S84 & Okeno v Republic lrgZzl EA 3z provide illustration of the duty of this court.

261 The duty may be summarized as the duty to re-evaluate the evidence and reconsider all the materials which were before the trial Judge as per the Supreme Court in Kifamunte Henry v Uganda, SCCA No. ro ofrggT;

> Being mindful of the court's duty above, I shall proceed to evaluate the grounds of appeal as lodged by the Appellants.

#### 15

### 9. GroundOne

271 The trial Judge erred in lau when she held that the applicant ought to haue filed the Appltcation for enforcement of human rights by utay of ordinary plaint

The Appellant submitted that the learned trial Judge erred when she failed to consider the provisions of Section 6(S) of the Human Rights (Enforcement) Act zor9. The Appellant further averred that the Human Rights (Enforcement) Act clearly provides for an application as opposed to a civil suit, and therefore the decision was erroneous. It was further submitted that the materials before the court, in the affidavits, were sufficient to enable the court make an informed decision. Counsel relied on Sinba (K) & Others v Uganda Broadcasting Corporation, Civil Appeal No. 3 of zor4 in support of this argument. 75 30

281 On the other hand, the Respondents submitted that Appellant lodged this application seeking for prerogative orders under judicial review as a disguised application for human rights enforcement which constitutes an abuse of court process. It was further submitted that the orders

5 sought of the court are discretionary in nature and the court is at liberty to refuse to grant them depending on the circumstances of the case.

291 The record of appeal (Pg. Z) shows that the Applicant sought, in an application for enforcement of human rights, orders of a declaration that the order of the t"t Respondent dated z5th August zozr was illegal and unlaurful, an order quashing the Respondent's order of cancellation of the Appellant's certificate of title and to reinstate the same, an order of prohibition, an injunction, among others. 10

3ol I agree with the finding of the learned trial judge that the Application is principally a claim for recovery of land disguised as an application for enforcement of human rights. It would be erroneous, in my view, for the High Court, or this court, to order cancellation of the titles of the registered proprietors of the land formerly owned by the Appellant, whether as a form of a consequential order or not, without hearing from the current registered proprietors, or other parties affected by the orders of court, as it would be an infringement of their respective rights to a fair hearing and the right to own property under Article z8 and z6 of the Constitution respectively. 15 20

3rl In my opinion, an ordinary suit should be the best way to settle issues of ownership of Iand and deprivation of land, even on account of errors or misfeasance by the Registrar of Titles. An ordinary suit would subject the parties' evidence to scrutiny and subject the witnesses to cross examination. Whereas I am alive to the fact that cross- examination may occur on the basis of affidavit evidence in an application for enforcement of human rights, I am of the considered view that an ordinary suit would afford the parties the best opportunity to traverse the facts and evidence and enable the Court arrive at a proper decision.

- gz) I agree with the learned trial Judge that the Court is unable to fully investigate, review, analyse and make findings on the court orders issued in regard to the suit land and giving rise to the cancellation of the Appellant's title, which is challenged in the application for enforcement of human rights. I note that the relevant suits, court files and orders in the suits referenced, that is; Execution Miscellaneous Application No. 95 of zot6, Family Diursion Originating Summons No. 9 of zot4, HC Miscellaneous Application No. 278 of zot5 Wameli & Co. Aduocates u the Administrators of the Estate of the late H. H. Sir Daudi Chwa & 3 others, High Court Cluil suit no. 6t of zotT; Mash inuestments u Commissioner Land Registration, Ciuil suit No. zo4 of zotT; Vamee industries u AttorneA General & Another, Ciuil Suit No. 246 of zotT; Steel & Tube Industrtes Limtted & z others u Commissioner Land Registration, High Court Miscellaneous Applicatton No. 9SS of zotg, High Court Mtscellaneous Application No. 4t6 of zot7, High Court Miscellaneous Couse No. t37 and q6 of zot7, among others, do not form part of the record of appeal in this case, and it would be an error to make a finding on those orders of court without a complete examination, including examination and cross examination of witnesses, to establish the circumstances under which they were issued. I further find that the Couft orders referenced affect a much wider description of land, above and beyond the portion formerly owned by the Appellant. Matters outside the record of appeal cannot be the basis of adjudication by the court. See R v Pandya [rSSZl EA 886 10 20 5 15 25 - 3gl The Appellant submitted that Section 6(5) of the Human Rights' Enforcement Act which provides that no suit instituted under the Act shall be rejected or otherwise dismissed by the competent court merely for failure to comply with any procedure, form or technicality was not duly considered by the trial Judge. On the other hand, the Respondents allege that the Appellant's application is an abuse of court process. 30 35

341 The concept of abuse of court process is not very precise of definition, but the Nigerian Supreme Court, which decision I consider merely persuasive, of R-Benkay Nigeria Ltd Vs Cadbury Nigerian PLC SC z9 of zoo6 outlines circumstances which give rise to abuse of court process and these include:

a) Institutino a multtolicin of acttons on the same subiect matter on e ues or a multt lici o actions on the same matter betueen the same oarties uhere there exists a right to beoin the action.

simultaneouslu tn different courts euen thouqh on dtfferent qrounds. c) Where two stmilar processes are used in respect of the exercise of the same right for example a cross appeal and the respondents' notice. b) Instituting different actions betuteen the same parties

d) Where an application for adjournment is sought by a party to an action to bring an application to court for leaue to raise issues of fact already decided by a lotoer court.

e) Where there is no law supporting a court process or where it is premised on frtuolitg and recklessness.

25 fl Where a Dartu has adopted the sustem of forum shoooino in the enforcement of a conceiued rtqht.

> g) Where two actions are commenced, the second asking for a relief tohich may haue been obtained in the first. In that case the second action is prima facie, uexatious and an abuse of court process.

351 The Supreme Court of Uganda, in the matter of Attorney General and Uganda Land Commission v James Mark Kamoga & Another, SCCA No. 8 of zoo4, per J. Mulenga described an abuse of court process as "inuolues the use of the process for an improper

1b 5 purpose for which it uas not establtshed". Court relied on the decision in the Block's Lau Dictionary [6th Edition] which provided that:

> "A malicious abuse of legal process occurs when a partV employs it for some unlatuful object, not the purpose for uhtch it is intended by the law to effect, in other uords, a peruersion of it."

361 However, Lord Diplock in Hunter v Chief Constable of West Midlands & Anor [rq8r] 3 ALL ER7z7 atPE. 729 defined abuse of process as:

> "Abuse of process concerns the tnherent powers uhich anq court of justice musf possess to preuent misuse of tts procedures tn any uay which, although not inconsistent with the literal application of its procedural rules, tuould neuertheless be manifestly unfair to a partg to litigation before it, or uould othenuise bring the admtnistration of justice tnto disrepute among right thinktng people"

371 In Johnson v Gore-wood & Co [zooz] z AC r at 58-60, Lord Millet held that abuse of court process can be no more than a procedural rule based on the need to protect the process of court from abuse and the defendant's oppression. 25

> See further: Halsbury's laws of England (3'd Edition 4o7-4o9, Paragraphs 266-Z6a)

381 In reference to the above authorities, the ability of the court to stay or strike out an action as an abuse of the procedure of the court is a longstanding remedy, an inherent power of the court, and is provided for in the Civil Procedure Act Cap 7r, [.aws of Uganda and the Civil Procedure rules SI 7r-r. The courts should not be clogged by re-determination of

5 the same disputes; and the private interest that it is unjust for a party to be vexed twice with litigation on the same subject matter. This is why a party is precluded from raising, in subsequent proceedings, matters which could and should have been raised in earlier ones for purposes of establishing a cause of action.

- 391 I observe that the Appellant in the instant matter lodged Civil Appeal No. B4S of zozz Vannee Industries Lbnited u Attorney General, Commissioner Lo:nd. Regrstration in the Court of Appeal (ansing Jrom the Htgh Court Mtscellaneous Cause No. z of 2022 in the High Court of Uganda at Mukono). This court delivered Judgment on the appeal on 7th August 2023. In that appeal, which was based on the application for judicial review, the court determined that the Appellant had the option of a suitable alternative remedy, being an action for recovery of damages under Section r78 of the Registration of Titles Act, Cap z3o for the address of the grievance of the Appellant in relation to the suit land. In addition, this Court determined that the Appellant had a remedy provided under Section r83 ofthe Registration of Titles Act Cap 23o to recover damages against Government for loss of land due to misfeasance by the tst Respondent. The Appeal was dismissed on this premise. - 4ol It is an abuse of process to use another remedy under the constitution to avoid or complement a set procedure. In the case of Harrikisson v Attorney General (Trinidad & Tobago) [r98o] AC 265 at 268 Lord Diplock held that:

"...the notton that wheneuer there is afailure by an organ of gouernment or a public authoritg or a public offi.cer to comply with the law this necessarily entails the contrauentton of some human right or fundamental freedom guaranteed to indiuiduals

by chapter t of the constitutton is fallactous. The right to apply to the High Court under Sectton 6 of the Constttution for redress uhen any human right or fundamental Jreedom is or is likely to be infringed, is an important safeguard of those rights and freedoms; but its ualue uill be dtminished if it is allowed to be misused as a general substitute for normal procedures for inuoking judicial control of administratiue action....the mere allegation that a human right or fundamental freedom of the applicant has been or ts likely to be contrauened is not of itself sufficient to entitle the applicant to inuoke the jurisdiction of the court under the subsection ifit is apparent that the allegation is friuolous or uexatious or an abuse of process of court as being made solely for the purpose of auoiding the necessity of applying the normal way for the appropriate remedy"

4r) I therefore find that the Appellant's choice to institute multiple applications (under Judicial Review and Enforcement of Human rights) seeking the same orders was an abuse of court process or the use of the court process for improper means, which cannot be merely discarded on account of the provisions of Section 6(S) of the Human Rights (Enforcement) Act 2019. The present appeal and Civil Appeal No. 345 of 2c.22 are based on the same facts. The Appellant's rights and orders sought could have easily been determined in that application and it served no purpose, except to use court process for improper means to lodge this application. 20 25

Ground one is therefore answered in the negative.

42) I would therefore conclude that the learned trial Judge rightly found that the applicant ought to have brought an ordinary suit to properly address the Appellant's grievances about the manner in

5 which the certificate of title was cancelled. This could not be adequately done in an application.

- \$l The resolution of ground 1 renders it unnecessary to consider the rest of the grounds of appeal. I would conclude that the learned trial Judge rightly found that the Appellant ought to have brought an action by way of ordinary Plaint. - 10. Decision. - 441 I would dismiss the Appeal. Each party to bear its own costs. - Dated at Kampala this ...... auv or.... AfnJ ..2,,24

Christopher Gashirabake JUSTICE OF APPEAL

### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

### CIVIL APPEAL NO. 342 OF 2022

(Coram: R. Buteera DCJ, C. Bamugemereire & C. Gashirabake, $JJA)$

<table>

VAMEE INDUSTRIES LIMITED APPELLANT

### VERSUS

#### 1. COMMISSIONER LAND REGISTRATION 2. ATTORNEY GENERAL $\cdots \cdots \cdots \cdots$ **RESPONDENT**

### JUDGMENT OF RICHARD BUTEERA, DCJ

I have had the benefit of reading in draft the Judgment of C. Gashirabake, JA in respect of this appeal. I do agree with his reasoning, decision and orders he proposed.

Since C. Bamugemereire, JA, also agrees, this Appeal is dismissed in the terms and orders as proposed by C. Gashirabake, JA in his lead judgment.

Dated at Kampala this ....................................

DEPUTY CHIEF JUSTICE

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL No. 342 OF 2022

[Coram: Butera, DCJ; Bamugemereire and Gashirabake, JJA]

VAMEE INDUSTIRES LIMITED ::::::::::::::::::: APPELLANT

### **VERSUS**

1. COMMISSIONER LAND REGISTRATION

2. ATTORNEY GENERAL **RESPONDENTS** :::::::::::

(Appeal from the Judgment and Orders of the High Court of Uganda at Mukono miscellaneous Cause No.1 of 2022 before Florence Nakachwa J, dated $13$ th July 2022)

## JUDGMENT OF CATHERINE BAMUGEMEREIRE JA

I have had the privilege to read, in draft, the opinion of my learned brother, Christopher Gashirabake JA. I am in agreement with his reasoning, conclusion and orders in respect thereof. I would dismiss the appeal with no order as to costs.

Dated this $19^{\text{H}}$ day of $\frac{\text{A}}{\text{A}}$ 2024.

**CATHERINE BAMUGEMEREIRE** JUSTICE OF APPEAL