[2025] UGHCLD 14

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)**

## **MISCELLANEOUS APPLICATION NO. 2730 OF 2024**

## **(ARISING OUT OF CIVIL SUIT NO.615 OF 2012)**

- **1. FREDRICK JJUNJU** - **2. NAKALAALI ABDULLATTIF** - **3. SIRIMANI SSEBIRUMBI ::::::::::::::::::::::::::::::: APPLICANTS**

## **4. NAWANGO MUHAMMED**

## **5. KIGGALA JOSEPH**

**(**Administrators of the estate of the late Prince Yusuf Ssuuna Kiweewa)

### **VERSUS**

**MADHIVANI GROUP LIMITED :::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

### *Introduction*

- 1. The applicants, being administrators of the Estate of the late Yusuf Ssuuna Kiweewa lodged this application under Section 82 of the CPA Cap. 282 and Order 46 Rule 1 of the CPR against the respondent for orders that; - i) The judgement and orders of this court in Civil Suit No.615 Of 2012 be reviewed and set aside. - ii) Costs for this application be provided for.

### *Applicants' evidence.*

- 2. The application was supported by the affidavit of NAKALAALI ABDULLATTIF**,** the 2nd applicant which briefly states the grounds of the application as follows; - i) That the applicants are the lawful/ rightful owners of land comprised in FRV 45 Folio 2 at Nakigalala and Kansiri estates. - ii) The applicants were not party to Civil Suit No. 615 of 2012, and were not heard. - iii) The decision of this court has the effect in extinguishing their interest in the land without being heard, contrary to the law. - iv) The Ministry of Lands, Planning and Urban Development issued a microfilm report in respect of the land confirming that the land was Private Mailo belonging to the Late Yusuf Ssuuna Kiweewa. - v) That further a Police investigation report dated 12th December 2019, also confirmed that the land belongs to the estate of the late Yusuf Ssuuna Kiweewa.

vi) That this application is brought *Bonafide,* with a view to have this matter finally resolved by this Honourable Court.

### *Respondent's evidence.*

- 3. Mr. K. P ESWAR deponed an affidavit for the respondent opposing the application briefly as follows; - i) That the applicants and the estate of the late Yusuf Kiweewa were not parties to Civil Suit No. 615 of 2012 and are not interested in the suit. - ii) That the applicants did not suffer any legal grievance from the judgement and thus have no locus standi. - iii) That the respondent are the registered proprietors of land comprised in FRV 45 Folio 2 at Nakigalala and Kansiri. - iv) That the respondent's certificate of title and or possession of the said land has not been challenged or cancelled by any court of law. - v) That the applicants have no interest in land comprised in FRV 45 Folio 2 at Kansiri - vi) That there is no new evidence or sufficient reason to review the judgment of this court in Civil Suit No. 615 of 2012.

### *Representation.*

4. The applicants were represented by Counsel Ahmed Mukasa Kalule and Mr. Kigula Mahir Muhamood of M/s Crane Associated Advocates while the respondent was represented by Counsel Kuteesa Paul of M/s Acardia Advocates. Both parties filed written submissions which I have considered in this ruling.

#### *Issues for determination;*

*Whether the judgement and orders of this court in Civil Suit No.615 Of 2012 can be reviewed and set aside?*

### *Resolution and Determination of the issues;*

- 5. **Justice Stephen Mubiru** in **John Imaniraguha V Uganda Revenue Authority Miscellaneous Application No. 2770 of 2023** defined review under Section 82 of the CPA to mean a judicial re-examination of the case in order to rectify or correct grave and palpable errors committed by the court in order to prevent a gross miscarriage of justice. - 6. **Section 82** of the CPA provides, *Any person considering himself or herself aggrieved\_*

- *a. by decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or* - *b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order on the decree or order as the court considers fit.* - 7. This court is thus vested with wide powers under **S.82 CPA** to sit on its own judgement, review it and make orders or any orders it deems fit. - 8. It is the position of the law that the powers to review judgements given to courts in the CPA are wider than those contained under the Civil Procedure Rules, specifically under **Order 46**. In **Uganda Commercial Bank V Mukoome Agencies [1982] HCB 22** the court observed as follows; "*Section 83 (now section 82) of the civil procedure act must be read without any limitation imposed under O. 42 rule 1 (now order 46) of the civil procedure rules.* See also**; Kinyara Sugar Limited V Hajji Kazimbiraine Mahamood HCMA No. 003 Of 2020** by Gadenya J**, Milter**

**Investments v East Africa Portland cement company limited HCMA 534 of 2012** by Madrama J (as he then was) where the courts held a similar opinion.

- 9. Order 46 rule 1 of the CPR provides that review may be granted on grounds of a mistake/ error apparent on the face of the record, discovery of new and important evidence or any sufficient reason. - 10. The respondent in **Paragraph 5&6** of their affidavit in opposition to this application averred that since the applicants were never parties to Civil Suit 615 of 2012, they have no *locus standi* to review the judgement of this court in that matter. - 11. The issue of *locus standi* to review a judgement is quite clear, **Section 82 CPA**, gives locus to any person considering himself aggrieved with a judgement may apply for review of the judgement. I agree with the submission of the learned counsel for the applicant that a person considering himself aggrieved is a person who suffers a legal grievance. See the decision of the Supreme Court in **Ladak Abdulla Muhammed v Griffiths Isingoma & Ors Supreme Court, Civil Appeal No 08 of 1995.** 12. It therefore follows that a person who was not a party to

a case may apply to review the judgement if he/she suffers a legal grievance. According to **M Ssekaana, Civil procedure and Practice in Uganda**, any third party may apply for review as long as they suffer a legal grievance i.e., he is wrongly deprived of something or wrongfully refused something or wrongfully affected his title to something.

- 13. This court further in **Mpanga & 9 Ors v Bunkeddeko & Anor [2024] UGHCLD 245**, held that where a third party's proprietary rights to land are adversely affected by a decision, such a person suffers a legal grievance and has locus standi to review the judgement or ruling. - 14. I have studied the Microfilm Report issued by the Ministry of Lands, Housing and Urban Development attached as Annexure E to the affidavit in support of this application that confirmed that the suit land belonged to the late Yusufu Ssuuna Kiweewa and thus casts doubt on the title of the respondent. - 15. The applicants claim of ownership is further corroborated by Annexure F, the report of the Criminal Investigations Directorate of Uganda Police which questioned the procedure under which the said plots of land were converted from Mailo land tenure to Freehold tenure, without proper documentation and/or deed plan.

- 16. I am satisfied and therefore find that the applicants, being administrators and beneficiaries of the estate of the late Yusuf Ssuuna Kiweewa suffered a legal grievance and as such have locus to review the judgment of this court in Civil Suit No. 615 of 2012. - 17. As to whether the applicants have demonstrated sufficient reason to review the judgement and orders of this court in Civil Suit No. 615 of 2012. - 18. This court in Civil Suit No. 615 of 2012 found that the respondent is the lawful and registered owner of the land comprised in FRV 45 folio 2 at Nakigalala and Kansiri. Without hearing the applicants, who have a claim of right over the land that is on the face of it, legitimate. - 19. This court is not required at this stage to inquire into the merits and or determine the legality in the claim of ownership of the land as it seems to be invited by both learned counsel for the parties. The issues of the probative value of annexures E and F are with all due respect premature. - 20. An application for review does not re-open the issues determined at trial or in the judgment sought to be reviewed.

Such issues are only determined after the application for review is granted. See **Ladak Abdulla Muhammed (supra).**

- 21. It was the case of the applicants that the process of acquisition and conversion of the suit land by the respondent was illegal and or fraudulent. These allegations are confirmed by the report of the Ministry of Lands and Uganda police. The respondent did not produce any evidence to rebut both the allegations and the reports of the government entities above mentioned. - 22. Issues of fraud and or illegality raised by the applicants to impeach the title of the respondent are serious and as such, require thorough scrutiny by this court. This can only be achieved in a trial. - 23. It is the duty of this court to hound and interrogate any issue of fraudulent dealing which arises in any case before it. This duty was stated by the supreme court in **Fam International & anor v Mohammed Hamid El- Fatih Supreme Court Civil Appeal No. 16 of 1993 Justice Odoki** as he then was cited with approval the words of the lower court and held; *"Fraud is such a grotesque monster that the courts should hound*

*whenever it rears its head and whenever it seeks to take cover behind any legislation.''*

# 24. In **Ham Enterprises & Anor V Diamond Trust Bank (U) Ltd & Anor SCCA No.013 of 2021**, His Lordship the Chief Justice, Owiny- Dollo cited the celebrated decision in **Makula International V His Eminence Cardinal Nsubuga SCCA No.04 of 1981** for the proposition that where the court is faced with an issue of illegality, it must be treated as one of utmost gravity. These decisions are binding on me.

25. I have read the judgement of this court in Civil Suit No. 615 of 2012 and I agree with counsel for the applicant that by upholding the respondent's certificate of title to the suit land, this court in effect deprived the applicants of their ownership of the same. This is so because a certificate of title is conclusive evidence of ownership of the parcel of land against the whole world. This is indeed the import of **Section 59** of the

#### **Registration of Titles Act Cap. 240**

26. I agree with the decision of my learned sister **Hon. Lady Justice Olive Kazaarwe Mukwaya** cited by counsel for the applicant in **Paul Nuhimbura & Anor V Patrick Lwanga HCMA 028 Of 2019** for the proposition that giving an applicant an

opportunity to be heard to defend their rights of ownership is sufficient reason to review a judgement.

- 27. I am further alive to the rule that an application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or the case afresh espoused by my brother **Wagona J** in **Kabagambe Grace V Mbabazi Resty & Anor HCMA 002 of 2022** and was cited with approval by this court in **Miscellaneous Application No. 2022 of 2024**, **Peter Kimanje Nsibambi V Nakamanya Rebecca & Ors.** - 28. I have had the opportunity to read and consider the pleadings, record of proceedings and judgement of this court in Civil Suit No. 615 of 2012 vis a vis this application and find that the issues raised by the applicants are strong enough to re-open the case. These issues were not conversed at the hearing of the case but are so pertinent that they go to the root of the question of ownership of the said land and cast doubt on the legality of the respondent's title to land comprised in FRV 45 Folio 2 at Nakigalala under **Section 160** of the **RTA**.

- 29. Denying the applicants an opportunity to present their case and also impeach FRV 45 Folio 2 would in my opinion occasion a miscarriage of justice. - 30. In the result this application succeeds and the same is hereby granted with the following orders; - i) The proceedings, judgement and decree of this court in Civil Suit No. 615 of 2012 are hereby set aside. - ii) The applicants shall file a Written Statement of Defence within 15 days from the date of this ruling. - iii)Each party shall bear its own costs

### **I SO ORDER**

## **NALUZZE AISHA BATALA**

### **Ag. JUDGE**

### **20th-01-2025**

### **Delivered Electronically via ECCMIS on the 20th day of January 2025.**