[2020] UGCA 2148

#### THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## MISCELLANEOUS APPLICATION NO. 76 OF 2O2O

(Arising from High Court Miscellaneous Cause No. 23O Of 2016l

### 1. CONTINENTAL AIR SOLUTIONS

2. MIRIAM KUTEESA CANTS

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#### VERSUS

1. COMMISSTONER FOR LAND REGISTRATION 2. ATTORNEY GENERAL 3. EDITH NANTUMBWE 4. JOSHUA MUKALI\ZI S. DAUDI KIZITO 6..'IMMY Id. IZITO T. ERINA NAI{KYA :::::::RESPONDENTS

# RULING OF IR"ENE ESTHER MULYAGONJA, JA lSitting as a Single Justice)

#### RULING

The applicants brought this application under rules 2 (2l., 6 (21 (b) and 43 (1) and (2) of the Judicature (Court of Appeal Rules) Directions. They sought an interim order for stay of execution of the ruling and order of the High Court, Andrew Bashaija, J in which he dismissed Miscellaneous Cause 23O of 2O16, pending the hearing of an appeal to be hled in this court. The applicants also sought lor costs of the application.

The applicants were dissatisfied with the whole of the decision of the triat judge and so lodged a notice of appeal in this court. The proposed grounds of appeal were stated in the notice of motion, briefly that the learned trial judge erred in law and fact when he summarily dismissed

the application on the basis of a preliminary objection without properly evaluating the evidence on record. Further that the trial judge erred when he neglected to consider the glaring procedural illegalities that led to the decision taken by the Commissioner for Land Registration (CLR). Finally, that the triat judge erred in law and fact when he neglected and failed to review the evidence and consider the decision of the Hon. Augustine Nshimye, JA (as he then was) that was made before the public hearing conducted by the CLR, the 1st Respondent herein.

The grounds of the application were more particularly set out in the a-ffidavit of Hon. Kahinda Otafiire dated the 1Stt' March 2020 filed with the application. He also deposed a supplementary affidavit dated 23'a MarcL. 2O2O. The respondents hled an affrdavit in reply that was deposed by Joshua Mukalazi, the 4t' Respondent, who stated that he was authorised to depose the affidavit by the J'a and 7th Respondents, as well as on the strength of powers of attorney issued to him by the Sth Respondent, David Kizito, on the 29th February 2016. The 2"d applicant, Miriam Kutesa, filed an afhdavit in rejoinder sworn on the lst of April 2020.

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In the affidavit in support of the application, Hon Otahire stated that the 2"d applicant issued irrevocable Powers of Attorney to Mineral Point Ltd in respect of land known as Kibuga Block 28 Plot 540 at Makerere upon which Mineral Point sold the land to the lst Applicant herein. That on presentation of the Applicant's transfer to the CLR, the latter instead cancelled the 2"d Applicant's title, and registered a subdivision of the land into Plots 1244,1245, 1246 and 1247 and entered the 4tt', sth,6th and 7th respondents as the registered proprietors of the land in dispute' That as a result, the applicants filed Misc. Cause 23O of 2016 in the High Court for judicial review challenging the procedurc that the CLR employed when hc/shc cancelled the 2"d applicant's title and instead entered the 3.d, 4th, sth, 6!h and 7tl, respondents as registered proprietors

of the land. He went on to state that on the 6th March 2020, Bashaija, J delivered his ruling in Msc. Cause 23O of 2076 dismissing it with costs to the respondents. The applicants then filed a notice of appeal in this court and applied for the record of proceedings-

Hon Otafiire reiterated the proposed grounds of appeal listed in the Notice of Motion and stated that he is reliably informed that the lrd, {t}t, sth, 6ti' and 7d' respondents have applied to have the caveat that was lodged on the contested certificate of title vacated. That if the same is allowed the respondents will dispose of the land and render the proposed appeal nugatory. He asserted that the proposed appeal has high chances of success and if the application for stay of execution is not granted, the applicants will suffer "irretrieuable' and substantial loss.

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In his supplementarSr affidavit, Hon Otafiire stated that he was informed by his lawyers, M/s Ahamya Associates & Advocates, that a search in the Registry of Titles showed that the caveat that was lodged on the disputed land as Instrument No KCCAOOO62 on 27\* June 2O19 was still active. That the application for stay of execution now before this court was intended to stay the imminent removal of the caveat and that the respondents will not be inconvenienced if this application is heard and granted.

In his affidavit in reply, Joshua Mukalazi stated that the 3'd respondent was not a party to the matter in the High Court and there is no court order that was secured to make her a party to this application' He further stated that the 3'd respondent, Edith Nantumbwe who is his mother, acquired the land in dispute in 1973 and it was registered in her name. That in 1993, Edith Nantumbwe transferred the land into their names (i.e. Joshua Mukalazi, Daudi Kiwuuta Kizito, Erina Nankya

and Jimmy Kizito). He further stated that in 2OO9, Miriam Kutesa frled a suit against the said registered proprietors as the Administrator of the Estate of the late Muganzi Kalanzi. That the suit proceeded ex parte ard judgement was given in favour of Miriam Kutesa. The 4tL applicant went on to state that he and his siblings applied to have t}:,e ex parte judgement set aside but the application was dismissed. That they then applied to stay execution of the order in the Court of Appeal and an order to that effect was granted in their favour.

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The 4tl, respondent further averred that in spite of the order for stay of execution issued by this Court, the CLR issued a special certificate of title in respect of the land. Further that a public hearing between the l"t Applicant (Continental Air Solutions) and the 4th, sth, 6th and 7th respondents, the CLR cancelled the special certificate of title that had been issued to the 2"d applicant. That in spite of that the 2"d applicant did not return the cancelled special certificate of title as ordered by the CLR. The 4th respondent further stated that he and his siblings had always been in possession of the dupiicate ccrtificate of title. And that after the settlement of the dispute before the CLR the 4\*', Sth, 6th and 7th respondents procured the sub-division ofthe land and transferred it to third parties who are not party to these proceedings.

The 4s respondent further averred that it was after the sub-division and transfer of the land to third parties that Continental Air Solutions, the 1"t Applicant, presented the cancelled special certihcate of title so that the land could be transferred into its name. The CLR then confiscated the certilicate of title. The 4th respondent also stated that it was at this point in time that the 1"t applicant filed the application for judicial review whose ruling is the subject of this application for stay of execution.

The 4s respondent further averred that by letter to the Registrar High Court Civil Division dated the 10tt' October 2016, Annexure B to his affidavit, the 2"d applicant informed court that she did not authorise the filing of the application for judicial review. Further that by deed dated 3lst May 2013, Annexure C to his affidavit, she revoked the Powers of Attorney she had granted to Mineral Point (U) Ltd, the company said to have sold the land to the l"t Applicant. And that before the hearing of the application for judicial rcview, the applicants applied to join a party to the suit, Nina Interiors Ltd who are the registered proprietors of a large part of the land in dispute, but the application was dismissed. He thus asserted that the orders being sought here would affect persons that are not party to this application, a lact not disclosed to court by the applicants.

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The 4tt respondent went on to aver that while the application for judicial review was pending before the High Court, the applicants lodged a caveat on the land in dispute but the caveat was not in issue in the application for judicial review in the High Court. He further asserted that the applicants sought to enforce a sale agreement through an agreement for judicial review but the 3'd, 4th, Sth, 6ff and 7t'respondents were not party to that transaction. That as a result the caveat lodged on the respondents' certilicate of title is unlaw{ul. That to his information, this court is not vested with power to deal with the caveat which was not the subject of the litigation in the High Court and which is being raised here for the first time. Further that there are procedures provided for by law for maintaining caveats on certificates of title.

In her affidavit in rejoinder dated 1"t April 2O2O, Miriarn Kutesa (the 2"4 Applicant) averred that she has never revoked the Powers of Attorney granted to Mineral Point Ltd. That the purported revocation dated 31"t May 2013 is a forged document which was brought to her attention by

her Lawyers. That she then made a statutory declaration dated 12ft November 2013, Annexure A to her affidavit in rejoinder in which she stated that the revocation was a forgery.

The 2"a applicant further stated that she believes the information of her lawyer, Sam Ahamya, that the Court of Appeal in Civil Appeal No.294 of 2013 set aside the consent judgment presented to this Court by the respondents. Further that in Civil Appeal (Read Misc Application) No. 20 of 2014, the Supreme Court confirmed the decision of the Court of Appeal setting aside the same judgment. She further averred that the orders that were set aside by thc Supreme Court and the Court of Appeal were used by the respondents to deprive her of the property which she held as Administrator of the Estate of Musa Muganzi Kalanzi.

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The 2"d applicant went on to asserted that the (special) certificate of title for land known as Block 28 Plot 540 at Makerere was valid and authentic having been created by Instrument KLI\4795OO of ^I"t December 20 10. That the 3.d, 41h, Srh, 6rh and 7rh rcspondents were summoned to surrender the forged certificate of title that they held and upon their refusai to do so the CLR issued the 2"d applicant with ^a special certificate of title. Further that the said special certificate of title was issued before the order of Kasule, JA dated 28n February 2020 (Annexure Oz to the affidavit in reply), which was overtaken by events.

The 2nd respondent further averred that the 1"t respondent misrepresented to the High Court that the Court of Appeal and the Supreme Court ordered her to cancel the 2"d applicant's certilicate of title yet there was no such order. She reiterated that she fully consented to the filing of the application for judicial review to challenge the decision of the cLR confiscating and cancelling her certificatc of title. Further that the lodgement of the caveat by the 1\$ applicant was done

with her consent to preserve the status quo in respect of the property she sold to the 1"t Applicant through Mineral Point Ltd. And that if the order to stay execution is not granted, the respondents will dispose of the property to third parties which wouid render the proposed appeal nugatory.

Counsel for the applicants, M/s Ahamya Associates & Advocates, filed written submissions in this court on ttre 25th March 2O2O. The 3rd, 4th, StL and 7ft respondents' lawyers, M/s S. K. Kiiza & Co. Advocates filed written submissions on 30s March 2020. The applicants' Advocates hled a rejoinder on I't April 2020. All submissions contained authorities relied upon by the parties. It was also brought to my attention in correspondence between the applicant's advocates that on 23'a March, court issued directions about the disposal of this application. The parties were given a schedule for hling written submissions which they complied with. The applicant's counsel relied on the written directions to request that this matter be disposed of, since in their view, the property is in danger of being disposed of so rendering the intended appeal nugatory, and so this ruling.

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In his written submissions, Counsel for the applicants identified two issue, i.e. whether the applicalion makes out the necessa-ry grounds for the grant of an order for stay of execution; and whether the applicant is entitled to costs of the application.

Regarding the first issue, Counsel for the applicant relied on the decision in Kgambogo tlnluersitg u, Protessor Isaiah Omolo Ndlege' Ciuil Appltcation No. 34 of 2O73 where this Court, Kakuru K., JA, laid down seven (7) conditions that must be satislled before an (interim) ordcr for stay of exccution is granted by the court as follow:

- ¹ The applicant has lodged a notice of appeal in accordance with rule 76 of the Rules of this court; - There is a substantive application for stay of execution frled and pending hearing in this court ll- - The substantive application and the appeal are not frivolous and they have a likelihood of success; 1ll. - There is a serious imminent threat of execution of the decree or order and that if the application is not granted the main application and the appeal will be rendered nugatory; lV. - The application was made without unreasonable delay; - The applicant is prepared to grant security for due performance of the decree, and VI.

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The refusal to grant the stay would inflict greater hardship than it rvould avoid. vlI

Counsel for the applicant then submitted that these requirements were ful{illed because first, there is no contest that the applicant frled a notice of appeal in this Court as is required by rule 72 of rhe Rules of this court. Secondly, he argued that though there is no substantive application for stay of execution in court, in National Forestry Authority v. The Omukama of Bunyoro Kitara & 2 Others' Civil Application No 266 of 2OL9, Engonda-Ntende, JA, decried the practice of fiiing two applications in court seeking stay of execution and opined that it is time that the legal profession stopped hling twin applications in court for such ordcrs, an unnecessary waste of meagre resources' He invited court to afhrm this decision which he took cognisance of and hle d a single application for an interim ordcr for stay of execution'

Regarding thc likelihood of success of the substantive application and the appeal, Counsel for the applicants assertcd that the appeal has a strong likelihood of succcss because the grounds stated in the

application and rc-produced above are about both facts and points of law. He reiterated that the Learned Trial Judge failed to evaluate the evidence and did not address his mind to the fact that the consent judgment that the CLR relied upon to cancel the 2"d applicant's title had already been set aside, so occasioning an injustice to ttre applicants' He further submitted that the cancellzrtion of the 2"a applicant's title and immediate subdivision and sale of part of the land in dispute to a third party, Nina Interiors Ltd, indicated malice and a deliberate act to deny the applicants access to the property on the part of the CLR. He relied on the decision of this Court in Uganda Broadcasting CorPoration v. Sinba (Kf Ltd and 2 Others, Civil Appeal No. 12 of 2Ol4 and asserted that the transfer of the land to another, within the space ofjust about 12 hours from the registration of the interest of the vendor on the certificate of title, should have raised a red flag in the mind of the trial judge to analyse the evidence on record further. He concluded that this is an indication that the proposed appeal has a strong likelihood of success.

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Regarding the threat of imminent execution of the order to be appea-led against, Counsel flagged the paragraph 11 ofthe affidavit in support in which the deponent stated that a caveat lodged on the title for land comprised in Kibuga Block 28 Plot 1244 at Makarere as Instrument KCCAOOO62694 of 27th June 2019, which is now registered in the narnes of Nina Interiors Ltd, was still subsisting when a search was conducted on 23,d March 2O2O. He then drew the attention of court to the fact that on the 6ft March 2O2O, the 4n, sth, 6th and 7ft respondents took out an order from the High Court. He submitted that this will lead to the removal of the caveat lrom the suit land and its eventual sale to other parties not party to these proceedings. That by virtue of these facts, the condition to prove imminent execution of the order was satisfied. With regard to the application being hled without unreasonable delay, he charged that this was satisfied. Hc also drew the attention of court to the applicants' averments that they are willing to meet the requirement lor security for due performance of the decree. He Iinally submitted that the refusal to grant the order would inflict greater hardship on the applicants because it would be hard to recover the land once it is sold.

In response, Counsel for the respondents raised an objection as to why this application was not first filed in the High Court, as is required by rule 42 (1) of the Rules of this Court. He relied on the age old decision in Lawrence Musiitwa Kyazze v. Eunice Busingye, Supreme Court Civil Application No. 18 of 199O and the more recent decision of this Court in Hajji Ali Cheboi v. Kirabo Mesulamu, Mlsc. Applicatiou No. 1O5 of 2u^14. He drew it to the attention of Court that the applicants clicl not advance any rcason, as is required by the law, as to why the application was not first filed in the High Court. He prayed that for that reason alone, the application be dismisscd.

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Counsel for the respondents raised a further objection to the inclusion of the 3.tr respondent (Etlith Narrtunlbwe) as a party to this application yel- she was not a parLy Lu thc trattcr in the High Court. IIe praycd that she be stuck off the application with costs. He went on to point out that the 2"a applicant withdrew from the application in the High Court but is still presented as a party to this application. He reiied on a letter alleged to have been written to the Registrar of that Court by the 2"d Applicant on the 1oth October 20 16, Annexure B to the affidavit in reply, and prayed that she be considered to have withdrawn and not a party to these proceedings.

With regard to the requirements raised in Attorney General v. Walugembe, Misc. Application No. 39O of 2O18, similar to those laid out in Omolo Ndiege (supra). Counsel for the respondents first asserted that the orders in respect of which stay of execution is sought are not capable of execution. He asserted that the order issued by the High Court simply dismissed the application with no consequential orders. LIe rclied on the decision in Walugembe (supra) for the submission that an application for stay of execution must first satisfy court that the order or decree appealed against is capable of being stayed and that there is an imminent danger of execution for the court to grant stay of execution.

He explained that in this application the applicants claim that the order for stay of execution is meant to protect caveats that were lodged on the certificates of title for the land in dispute. He argued that the remova-l and maintenance of caveats is provided for by section 140 of the Registration of Titles Act and the respondents have not moved to remove them under that provision. Furthcr that thc duty of maintaining caveats is the preserve of the High Court in its original jurisdiction, not an appellate court. That the caveats were not in issue in the High Court, impliedly, they cannot be made an issue in this Court.

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Regarding the first and second conditions for the grant oforders for stay of execution, Counsel for the respondents challenged what he termed the applicants' filing of an omnibus application. In his view there is no law that permits the liling of omnibus applications of that nature. He asserted that the grant ofan order under the instant application will be final since there is no substantive application for stay of execution in this court. He invited court to dismiss the application on that account.

Regarding the likelihood of success of the substantive application and the appeal, Counsel for the respondents asserted that the principle has not been met by the applicants. He relied on the fact that the applicants admit that the land in dispute was subdivided and part of it sold to Nina Interiors Ltd, who were not party to the suit in the lower court and/or this application and the intended appeal. So that any orders granted by this court cannot affect the titie of Nina Interiors, who, according to the affidavit of the 1't Applicant are registered proprietors of land known as Kibuga Block 28 Plot 1244 at Makerere.

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Counsei went on to submit that the applicants' intention was to enforce property rights through an application for judicial review. He submitted that recovery of property is in the realm of private rights while judicial review deals with public law. He relied on the decision in Attorney General v. Tinkasimire & Others, CA Civil Appeal No. 2O8 of 2013 where this Court held that in that case the underlying issue between the parties was a land dispute. That the remedy for such a dispute could only be obtained by way of an ordinary suit filed by either party. He argued that the instant case falls in the same category as is shown in the pleadings hled by the respondents.

Regarding the possibility of executing the order to be appealed against, Counsel for the respondents submitted that the applicant has not demonstrated that this is possible since the concerrr of the applicants is to prevent the removal of a caveat lodged on the suit land. He argued that execution could have ensued against the order for costs, but as it is now, costs have not been taxed. There is therefore no likelihood that the order will be executed.

Regarding the 6th and 7th principles, Counsel for the respondents argued that though the application was Iiled expeditiously, it is premature and lacks merit. He added that the applicants have not pleaded that they are rvilling to furnish security for execution of the order. He thus prayed that the application be dismissed with costs.

In rejoinder, Counsel for the applicants submitted that this Court has concurrent jurisdiction with the High Court under rules 6 (21 and 2 (bl of the Rules of this Court. He relied on the decision in Omolo l{diege (supra) for the submission that this court has the jurisdiction to hear an application for stay of execution, in the first instance upon proof of exceptional circumstances. He asserted that in his rriew, exceptional circumstances were made out by the fact that the lifting of caveats on the titles of the land in dispute, which are still subsisting, would render the proposed appeal nugatory.

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Counsel further submitted that the cancellation of the title initiated by the respondents relied on a consent judgment that was set aside by the Court of Appeal on 19th December 2013 and the respondents were beneliciaries to this decision. He relied on the decision in Makula International v. Emmanuel Cardinal Nsubuga, SC Civil Appeal No. 4 of 1981 for thc submission that an illegality once brought to the attention of the court cannot be overlooked and overrides all pleadings including admissions. He argued that illegality was constituted by the reliance on an order that had been recalled to cancel the title and this in his view constituted exceptional circumstances for filing this application in this court without first hling it in the High Court.

Regarding the respondents' challenge that the application is omnibus and therefore incompetent, Counsel for the applicants invited court to adopt the decision of Egonda-Ntende, JA, in National Forestry Authority v. Omukama of Bunyoro (supra|, and rule that the application is properly before court.

In response to the submission that the issues raised before the High Court were not suitable for judicial review, Counsel lor the applicants submittcd that the procedure that the CLR employed to reach the decision to cancel the applicant's title was flawed. In support of this he argued that the consent judgment that the CLR relied upon to cancel the title was sct aside by the Court of Appeal on the 19th December 2012. He relied on Stanbic Bank (U) Ltd v. Jacobsen Uganda Power Plant Ltd & Another, High Court Msc. Application No 42 of 2OLO for the submission that a party who knows of a court order cannot be allowed to disobey it and that disobedience in the circumstances would amount to contempt of court.

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He went on to submit that the acts of the CLR were illegal and in support he cited the decision in Makula International Ltd. v. Emmanuel Cardinal Nsubuga [1982] HCB 11 and Kisugu Quarries v. Administrator General [1999]1 EA L62. That the trial judge relied on limitation to clismiss the application and failecl to address his mind to the error on the record that the respondents caused the cancellation of the title well aware of the fact that the consent judgment that they relied upon had been set aside. That as a result, there are exceptional circumstances that justify filing this application in this court contrary to the rules oI this court.

With regard to the respondents' argument that the applicants sought to enforce private rights using the procedure of judicial review, which ordinarily applies to rights in public law, counsel for the applicants submitted that the acts of the CLR when she cancelled the certificate of title of the applicants were contra-ry to public law. That because this court is vestcd with powers to rc-evaluate evidence and reach its own dccision, and thc cancellation of the applicants' title by the CLR was

flawed, this court ought to re-evaluate the evidence and come up with an independent decision, and so the appeal before this court ought to be facilitated with the orders sought in this application to preserve the status quo.

I have considered the submissions of both counsel regarding the addition of the 3.a respondent to this application yet she was not party to the application in the court below. I have also taken into consideration the 7 principles cited as the basis for the grant of interim orders for stay of execution by this court. I will consider each of them as laid out in the decisions of this Court cited by both counsel, but first the question whether the 3'd respondent is a proper party to this application ought to be resolved.

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There is no doubt that Misc. Cause No. 23O of 2O16 was against 6 respondents and the 3"1 respondent was not one of thern. It is therefore not possible that she would move to execute the orders of the court in a matter in which she was not party. No reason was given by the applicant when they included her as a respondent yet she might become liable for the costs of the application in the event that they are granted against the respondents. Since no reason was given and no leave was sought and granted to have her included as a party to this application, she is hereby struck off the record as a party to this application.

T\rrning to the principles upon which applications of this nature are granted by this court, there is no doubt that the applicants did file a notice ofappeal as is required by rule 76 of the Rules of this Court. The notice of appeal was lodged on the l8m of March 2O2O. There is also no doubt that this application was filed without unreasonable delay, on the 20s March 2O2O after Bashaija, J, delivered his ruling on the 6th of March 2020. These two conditions for the grant of an interim order for stay of execution were therefore satisfied by the applicants.

With regard to the question whether there is an application for ^a substantive order for stay of execution, the decision of Egonda-Ntende, JA, in National Forestry Authority v. The Omukama of Bunyoro Kitara relied upon by counsel for the applicant did not do away with the requirement for an application for a substantive order for stay of execution. The observations of Egonda Ntende, JA, were made after he found that there was before court a pending application for ^a substantive order lor stay of execution. The learned Justice then criticised the practice of filing two applications, which he observed was invented by the legal profession and not provided for by the Rules of this Court and the High Court. He then expressed that view (obita dictum) that it is time that the practice was stopped for it is a strain on the often meagre resourccs of the parties and the courts.

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There is thereforc still need to have an application for a substantive order for stay of execution before an order for an interim order is granted in a particular application for that purpose. The alternative to this would be to have an omnibus application filed as an application for both orders, i.e. for an interim order for stay of execution, pending thc hearing of the same application for a substantive order for stay of execution. This would perhaps cure the procedural defect compiained about by counsel for the respondents. But as the record of the court stands, there is no pending application for an order for stay of execution to be heard by a panel of justices in the event that the current application fails. In the cvent that this application succeeds, on the other hand, it would amount to a single justice disposing of the application for stay of execution contrary to the rcquirements of rule 53

(2) (b) of the Rules of this court. This condition was therefore not satisfied by the applicants.

As to whether there is a serious imminent threat of execution, the order whose execution is being sought states as follows:

"That this application does not meet the citeria for judicial reuieu.t, i.s incompetent and tLerefore dismissed with costs to the respondents."

There were no orders issucd for removal of the caveat that the applicants claim is about to be removed so that an order to stay such removal takes care of the need to protect the property from being transferred, which in the applicant's view if not done would render the appeal nugatory.

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However, in that regard there is on record a letter dated 7tt' May 2O2O from S. K. Kiiza & Co. Advocates addressed to the Registrar of this Court informing him about the decision of the High Court, Civil Division, in Miscellaneous Cause No 23O of 2016, Nina Intcriors Ltd v. Commissioner of Land Registration, the 1"t Respondent here, arising from Misc. Cause 230 of 2016, whose result the applicants here intend to appeal against. S. K. Kiiza & Co. Advocates informed the Registrar that Nina Interiors Ltd., who are not party to this application, obtained an order compelling the CLR to vacate the caveat lodged on land comprised in Kibuga Block 28 Plot 1244. The order which was attached to the letter shows that it was issued on 29th Aprll 2O2O, after the filing of this application in this Court on the 2ott March 2O2O. As averred by the 4tt, Respondent, the applicants' attempt to make Nina Interiors Ltd a party to the application for judicial revicw failed; it was dismissed with costs for want of prosecution on the lOtl, September 2018. A copy of the

order was attached to the 4e respondent's affidavit in reply Annexure Dl. AS

In his supplementary affidavit dated 23'a March 2O2O, Hon Kahinda Otafiire stated that the caveat in issue is still active on the title for land comprised in Kibuga Block 28 Plot 1244 at Makerere, as is shown in ^a search certificate attached to his affidavit as Annexure A. He further stated that the main purpose of this application for stay of execution is to secure an order to prevent the removal of the caveat on the land in dispute.

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Though the consequential order was brought to the attention of court by letter and not as evidence in this application, the order states that it was handed down by Bashaija Andrew, J' and was signed by the Assistant Registrar under the seal of the High Court of Uganda at Kampala. Section 56 (1) (e) of tJle Evidence Act provides that court must take judicial notice of seals of all the courts of Uganda dulg established ... and the seals rahich ang person is authorised to use by any Act of Parliament or other uritten lau. Thetefote, regardless of how it came to the attention of court, this court takes judicial notice of the consequential order for the removal of the caveat lodged on the land comprised in Kibuga Block 28 Plot 1244 at Makerere.

Would that then mean that there is imminent execution of the order to be appealed against? In my view, it means there is a likelihood of removing the caveat on the land that was already sold to Nina Interiors Ltd, However, Nina Interiors Ltd werc not party to the application in the High Court. The application which was filed by Continental Air Solutions Ltd, the l"t applicant here was never heard but dismissed for want of prosecution. The l"t applicant did not pursue that matter yet they were weil aware that part of the land in dispute had been transferred. As a result, Nina Interiors Ltd are not party to the instant application and the proposed appeal. It would be contrary to the principles of natural justice to deny them access to their interest as registered proprietors in a matter where they wili have no opportunity to be heard.

Further, the statement of search attached to the supplementary aflidavit of Hon Kahinda Otafiire shows that Nina Interiors Ltd were registered as proprietor on 15th July 2016. More evidence would be required to deny them use of their title than is present here, in a matter in which they are not parties and thus have no likelihood of being heard. There is no evidence to prove that execution of the order dismissing the application for judicial revierx, is imminent. What is available on record is an order in favour of an independent party seeking to enforce their property rights that were never successfully contested by the applicants in the court below.

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Indeed, any appeal that may be lodged and heard in respect ofthe order for dismissal of the application for judicial review would not be rendered nugatory by the consequential order issued in respect ofthe land known as Plot 1244. Th,is is because the land in dispute also includes that which is known as Kibuga Blok 28 Piots 1245, 1246 and 1247 at Makerere over which the dispute between the parties can continue.

Regarding the averment that the Jrd, 4th, sth, 6!h and 7th respondents applied to have the caveat lodged by the lst respondent on the land in dispute registered on the 27\*, June 2019, the removal of caveats is governed by s.140 of the Registration of Titles Act. Section 14O(2) thereof provides that:

" Except in tLrc case of a caueat lodged by or on behalf of a beneficiary claiming under any toill or settlement or by the registrar, euery caueat

lodged against a propietor shall be deemed to haue lapsed upon the expiration of sLrtg dags afier notice giuen to the caueator that the propietor has applied for the remoual of the caueat."

In view of that provision, the l"t applicant that lodged the caveat would be given notice that an appiication has been lodged by the registered proprietor to remove the caveat, or to register an interest on the title that is adverse to that of the 1\$ applicant. Within the statutory period of 6O days, the caveator would then have recourse to the High Court to secure an order to protect the caveat, if he/she proves that the purpose for which it was lodged is lawful and necessary.

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The attempt by the applicants to secure an order to maintain the caveat by an order granted by this court is therefore not tenable because they have not proved that there is an application to remove the caveat by notice being given to them. I am therefore unable to find that execution of the order by removal of the caveat referred to by the l"t applicant is imminent.

As to whether the substantive application and the appeal are not frivolous and have a likelihood of success, there is no substantive application pending before this court. It is therefore not possible to determine whether it has a likelihood of success or not.

Going on to the likelihood of success of the proposed appeal, the applicants intend to appeal against the decision of the High Court on an application for judicial review in which they sought for a writ of certiorari compeliing the l"t respondent (CLR) to cancel the entry made to reinstate Erina Nankya, Kizito Jimmy and Daudi Kizito as the registered proprietors of the land in dispute; cancellation of all dealings and sub-divisions in respect of Plots 1244, 1245, 1246 and 1247, all arising from Plot 54O; reinstatement of Miriam Kutesa as the registered proprietor, as '"vell as compelling the l"t respondent to enter the l"t applicant on the special cerlificate of title. The 1.t applicant claimed to be the bona fide purchaser of the land comprised in Kibuga Block 28 Plot 540 at Makerere.

The applicants are aggrieved that the trial judge did not evaluate the evidence but instead dismissed their application for not satisfying the requirements for an application for judicial review, and for having been filed out of time, i.e. contrary to ruie 5 (1) of the Judicature (Judicial Review) Rules of 2010. Included among the grounds of their application were the following assertions:

'9. The actions of the 1"t respondent were in excess of her Jurisdictlon, talnted wlth fraud and. were done in error of fact a,nd law on the face of the record, that are grounds to issze the urit of certiordri and cancel the said transactlons entered onto the title.

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17. The 7.t respondent and other Registrars fraudulentlu ntith lntention to deng and deteat the lnterest of the Appllcant further attempted to subdivide the so:id proper-tg into Plot 7247 and Plot 7246 that are different from the Plots created from Block 28 Plot 54O, uthich onlu points to the fraud committed bg the Respondents."

The applicants then intend to complain to this court that the trial judge erred when he disposed of the matter on a preliminary objection, did not evaluate the evidence on record and so did not find in their favour, cancel the certificate of title of the 4tt', 5th and 6\*, respondents and instead register the interest of the 1"t applicant.

While the applicants' grievance that the trial court dismissed the matter on the basis of a preliminary objection could be cured by an appeal in this court, it is my well-considered vierv that the substantive grievances being visited on the trial judge were occasioned by the procedure that the applicants adopted to enforce their rights. I came to this conclusion because, section 176 (cl of the Registration of Titles Act provides that,

"No action of ejectment or other action for the recouery of any land shall tie or be sustained against the person registered as propietor under this Act, except in any of tte follouing cases-

(a)

(b)

(c) tLe case of a person depriued of any land bg Jraud a-s against the person registered as proprietor of that land through Jraud or as against a person deiuing othen-uise than as a transferee bona fide for ualue from or tlvough a person so registered through fraud;"

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The applicants went to great lengths to adduce evidence by affidavit to prove the alleged fraud and illegalities committed by the CLR and the other respondents. However, Order 6 rule 3 of the Civil Frocedure Rules provides that,

"In all cases in which the partg pleading relies on anA misrepresentation, fraud. breach of trust, wilful default or undue inJluence, and in all otLter cases in which particulars may be necessary, tle particulars with dates shall be stated in the pleadings."

Therefore, the omission to plead and particuiarise fraud in the lower court cannot be cured by an appeal to this court-

I am alivc to the importance of the decision in Makula International (supra) cited by counsel for the applicants. I am also cognizant of my decision in Standard Bank & another v. Jacobsen (supra), also cited by counsei for the applicant and of persuasive value to this court. Nonetheless, in the recent decision of the Supreme Court in Hilda Wilson Namusoke & 3 Others v. Owalla's Home Investment Trust (EA) Ltd, SC Civil Appeal No 15 of 2017, it was held that an allegation of fraud is so serious in nature and is required to be specifically pleaded and strictly proved before a court of law. And that whereas fraud is not authorised by law and is an illegality, fraud is a very special kind of illegality.

In addition to the allegations of fraud which could not be proved on an application for judicial review, the affidavits filed in this application point to another complicated fact that must be proved to a level that is above the balance of probabilities. The respondents claim that the 2"a Applicant withdrew from the application by writing a letter to the Registrar, dated lott' October 2016 that she did not instruct Ahamya Associates & Advocates to file the application on her behalf. Further that the 2"d applicant had withdrawn her Powers of Attorney to Minera-l Point Ltd. to sell the land by the time the transaction between that company and the l"t respondent took place. There are deeds purporting to have been signed by the 2na Applicant attached to the affidavit of the 4ft respondent in reply to this application.

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In her affidavit in rejoinder dated the l"t April 2O2O, she rebuts the allegation that she revoked the powers of attorney and that the revocation that is annexed to the affidavit of Joshua Mukalazi dated 27tt, March 2O2O is a forged document. She asserts that the "irrevocable powers of attorne/ were still valid and that she indeed authorised Mineral Point Ltd to dispose of the land. She did not respond to the allegation that by letter dated loth October 2016 she withdrew from the application for judicial review.

The applicants challenged the validity of the consent judgement that the CLR relied upon to cancel the special certificate of title that had been issued to the l't applicant, which they assert was illegai because it had been set aside in Court of Appcal Civil Appeal 294 of 2013. Further that in Civil Appeal lRead Misc Applicationf No. 2O of 2O14, the Supreme Court confirmed the decision of the Court of Appeal setting aside the same judgment. Interestingly, up until the l0tr' day of October 2019, there was in this court Civil Appeal No 153 of 2015, Edith Nantumbwe Kizito, Joshua Kizito, Daudi Kiwuuta Kizito and Erina Nankya v. Miriam Kuteesa. The matter seemed to have been settled by the parties and a consent judgment entered based on an undated agreement over the rights to land known as Kibuga Block 28 PIot 540 at Makerere.

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In the said agreement, it was stated that Miriam Kutesa, being the Administrator of the Estate of Musa Kalanzi Muganzi, agreed to be paid a sum of UGX 75O,0OO,000/= for the land that was decreed as forming part of the said estate and that the said sum would settle all claims on the subject and all the beneficiaries and claimants of the estate of Musa Muganzi Kalanzi. On the basis of this agreement, the parties to the appeal entered a consent judgment which was signed in the presence of Kiryabwire, JA, which indicates that it was frled following a proposed settlement dated the 8tL day of October 2019, and filed in this Court on 11th October 2O 19.

The 2"d Applicant later challenged the consent judgment in Civil Reference No. 85 of 2O2O where she claimed that the consent judgment was void ald an attempt to circumvent and contradict the decision of this Court in Civil Appeal No. 294 of 2Ol3 in which the previous consent judgment that was entered on 21"t January 2072 was struck out. The grounds in Civil Refercnce 85 ol 2O2O were that Miriam Kutesa had no knowledge of the consent judgment and the agreement upon which it

was based. The matter was placed before a panel of Justices on the 3oft J:uly 2O2O and the decision shall be on notice.

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What has transpired in this Court indicates that the conflict betw'een Miriam Kutcsa, on the one hand, and Edith Nantumbwe Kizito and her offspring on the other, which was never resolved on its merits in HCCS No. 95 of 2O09 is still very much alive. There is an appeal pending before this Court, Civil Appeal No 163 of 2O 1 5, from the clecision of Murangira, J in High Court Miscellaneous Application No. 13O of 2011. Judgment in the High Court was ex parte after all the defendants in the suit did not lile written statements of defence. An application by the defendants to set aside tJte ex parfe judgment and file their defence, appear and defend the suit was dismissed. And so the appeal before this Court, Civil Appeal 163 of 2015, to which the l"t applicant is not a party. Judging from the averrnents in the affidavits of ttre parties to this application, it is evident that there may be fraudulent conduct either on the part of the applicants here or the respondents or some of them.

As a result of the observations above, the proposed appeal by the applicants has vcry limitcd chanccs of succcss and I am not satisficd that such an appea-l would settle all the issues raised between the parties hereto over the land in dispute. The issue of fraud alleged by the Continental Air Solutions Ltd here in respect of transactions that frustrated her being brought onto the title has never been adjudicated upon by the High Court. Those issues were therefore not the same issues in the suits between Edith Nantumbwe and her offspring and Miriam Kutesa.

In addition, the inconsistent position of the 2"a applicant with respect to the transactions between herself and Edith Nantumbwe and her offspring with regard to the title to the Iand in dispute presents a challenge to making a decision in favour of either of the parties on the basis of the evidence by affidavit in the application for judicial review.

The truth about these transactions has got to be proved in a civil suit in the High Court in which all tJle evidence that the applicants and the respondents averred to in their af{idavits in the application for judicial review, and probably more, would be adduced in the ordinary manner before a .judge. This would enable parties to cross-examine the witnesses and so improve the quality of the evidence adduced.

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In conclusion, granting an interim order to stay execution to enable this court to entertain an appeal that is not likely to settle the dispute between the parties hereto would amount to a waste of the applicants' and the court's time. Granting stay of execution to enable the hearing of an appeal over the dismissal of an application for judicial review which was incapable of disposing of the age old dispute between Miriam Kutesa and Edith Nantumbwe Kizito, and her offspring would in fact inflict more hardship on ail the parties than it would avoid- This is regardless of whether or not the applicants are willing to furnish security for the performance of the decree.

In conclusion, the applicants are best advised to l-rle a suit in which the court will be given an opportunity to properly hear and evaluate the evidence in support of their rights to the land where the respondents would be challenged to adduce evidence to prove of their own rights.

The application is therefore hereby dismissed with costs to the 3rd, 4th, Stn and 7th respondents, the 6th respondent not having been represented by Counsel.

Dated at Kampala t| i" Lgfrv of August 2o2o.

JA

NE ESTHER JUSTICE OF APPEAL