[2024] UGHCLD 137

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.3672 OF 2023**

$\mathsf{S}$

# (Arising from Civil Suit No.528 of 2014)

# <table> KABAKA OF BUGANDA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. SOLOMON LUWALALA - 2. DAVID MUYISE - 3. APOLLO WASSWA BASUDE 10 - 4. UGANDA LAND COMMISSION::::::::::::::::::::::::::::::::::

# Before: Lady Justice Alexandra Nkonge Rugadya.

### Ruling.

This application brought by motion under **Section 83 of the Civil Procedure**

Rules SI 71-1 and Order 46 rule 1, and Order 52 rules 1 & 2 of the Civil 15 Procedure Rules SI 71-1 seeks orders that the judgment and resultant decree issued by this court in Civil Suit No.528 of 2014 be reviewed, and set aside, and that costs of the application be borne by the respondents.

The grounds of the application are contained in the affidavit in support of the application deponed by Mr. Kizito Bashir Juma, the Chief Executive Officer of 20 Buganda Land Board, and the applicant's lawful attorney.

Briefly that the applicant was not made party to the Civil Suit No.528 of **2014.** He was shocked when he came to learn through the media that this court had ordered Uganda Land Commission to compensate the family of the

Late Sir Apollo Kaggwa for illegally having sub-divided the suit land comprised 25 in Kyadondo Block 255 plot 98 & 97.

That immediately the Buganda Land Board which is mandated to manage the applicant's official mailo estate accessed the court file, it discovered that the $1^{st} - 3^{rd}$ respondents who were the plaintiffs in the main suit, and who had

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asserted ownership of the suit land had sued the 4^th respondent, who never bothered to prosecute his case and judgment was entered in favour of the plaintiffs who were to be compensated for the market value of the suit land which was decreed to belong to the estate of the late sir Apollo Kaggwa.

- That the deponent has since established that although the plaintiffs claimed $\mathsf{S}$ that the suit land belonged to the late Sir Apollo Kaggwa under Final Certificate No. 17703, and Provisional Certificate No.4759 in 1921 which was later converted to **MRV 243 Folio 23** on 28^th June 1923, neither the final certificate nor the provisional certificate were availed to this court as evidence of the claims of ownership, while the title for MRV 243 Folio 23 which was 10 - availed to court never contained an entry in favour of the Late Sir Apollo Kaggwa as the owner of the land.

That it was also established from the court record that the plaintiffs relied on a letter from the Permanent Secretary of the Ministry of Lands dated 5^th July 2013 addressed to a one Kasana Mpungu Advocates purporting to confer 15 ownership of the suit land to the Late Sir Apollo Kaggwa from 1921 to 1923, beyond which such ownership could not be guaranteed by the Permanent Secretary unless confirmed by an official search report from the titles register.

- That while no such official search report issued by the Commissioner Land Registration who is the custodian of registered land ownership records in 20 Uganda, was ever availed by the plaintiffs so as to confirm the impugned claims of ownership, the office of the Commissioner Land Registration in her report dated 6^th March 2018 addressed to the Executive Director of the Uganda National Roads Authority confirmed that the suit land comprised in - MRV 243 Folio 23 land at Munyonyo (converted to Block 255 plot 97 & 25 98) belonged to the Kabaka of Buganda by virtue of his office following UNRA's desire to compensate the true mailo owner during the construction of the Kampala – Entebbe expressway that passed through the suit land around the Munyonyo Spur area. - That the suit land which has never been part of the estate of the late Sir Apollo 30 Kaggwa has always been an official mailo estate of the Kingdom of Buganda

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as per the certificate of title of MRV 243 Folio 23 availed to court and that the history of ownership of the land is that under the 1900 Buganda agreement, land in Buganda was allotted to different individuals and offices, and that the office of the Katikkiro of Buganda is among the offices that were allotted land, and to which the suit land was allotted as an official mailo estate.

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$\mathsf{S}$

That the suit land which was originally comprised in Final Certificate 17703 and Provisional Certificate 4759 was later registered under Mailo Register Volume 243 folio 23 on 28^th June, 1923 and that because the office of the Katikkiro of Buganda is an office in Buganda Kingdom Local 10 administration, it was a corporation sole with capacity to hold land in an official capacity by virtue of the 1900 agreement, 1908 Land Law, and The Official Estates Act 1919(formerly The Natives Official Estates **Ordinance of 1919** all of which vested the office with capacity to legally hold land in an official capacity at the time. 15

That both the 1908 Land Law and The Official Estates Act 1919 differentiated between the official mailo estate, which included all land attached to specific offices in Buganda Local Government (land held in official capacities), including all land held by the Katikkiro as a corporation sole, while private mailo estates were held in individual capacities.

That the suit land being an official estate of Buganda Kingdom could not be claimed by the office holder as a private estate, and neither could it be inherited thus the late Sir Apollo Kaggwa who was Katikkiro of Buganda, also held the suit land in his official capacity but it never formed part of his private estate and that the suit land was by virtue of being an officio mailo estate of the Katikkiro of Buganda vested in Buganda Land Board by operation of Article 113 (7) & (12) of the Constitution of the Republic of Uganda.

That when the central government abolished kingdoms after the 1966 crisis, the official estate land belonging to Buganda kingdom was confiscated by the state, and was vested in the Land Commission under Article 108 of the

1967 Constitution of the republic of Uganda and that the suit land which

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was among the parcels official mailo estates that were formally confiscated and vested in the Land Commission was originally registered under Mailo Register Volume 243 folio 23 until 1993 when kingdoms were restored under the Traditional Rulers (Restitution of Assets & Properties Act) cap. **247** by which all the confiscated properties were returned to the traditional leader of the kingdom.

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That by an agreement between the Government of Uganda and the Kingdom of Buganda on 1^st August 2013, various certificates of title were returned to the Kingdome of Buganda, and vested in the names of the Kabaka of Buganda including the certificate of title for Mailo Register Volume 243 folio 23 which was originally registered in the names of the Katikkiro of Buganda and as such the Uganda Land Commission ceased to have any authority over the land because the land was returned to the official mailo estate of the kingdom of Buganda.

- That while no private estate of an individual was ever vested Buganda Land 15 Board, confiscated by the state or vested in the Uganda Land Commission, only the official mailo estates of the kingdom that were expropriated by operation of the law, the 1967 Constitution were confiscated, and that it is within the knowledge of the Uganda Land Commission that the suit land was - an official mailo estate of the Kabaka of Buganda as per the letter from Mr. 20 Baguma M. Isoke, the commission's chairman to Hon. Daudi Migereko, the then Minister of Lands, Housing, and Urban Development concerning the ownership of the suit land.

That prior to the return of the suit land to the Kingdom of Buganda in 2006, the Uganda Land Commission subdivided plot 98 into plots 13, 15 & 17-25 23, and leased them to a one Florence Nakintu, Mathia Kigundu, and Obey Christopher respectively for 5 years, which lease terms were later erroneously extended to a full term of 49 years and that the Kabaka of Buganda being the lawful owner of the interest re-entered the said leases through Buganda Land 30 Board.

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In addition, that the applicant has through Buganda Land Board been dealing with the suit land, and has not only received compensation from UNRA, but has also identified and confirmed the project affected persons on the land to be compensated for construction of the road passing through the suit land

- and that while the original mailo certificate of title vide Mailo Register 5 Volume 243 folio 23 is in the applicant's possession, it was availed to UNRA to sub-divide the interest for the Kampala – Entebbe express highway which passes through the land, and UNRA has acknowledged receipt thereof. - That neither the late Sir Apollo Kaggwa nor his successors have ever had any dealings in the suit land since the same never formed part of private estate 10 thus they have no right to claim compensation in respect of any portion thereof and neither does the Uganda Land Commission have any interest therein and cannot transact over the same. - In addition, that because the late Sir Apollo Kaggwa throughout his lifetime never claimed any ownership rights in the land, his beneficiaries cannot claim 15 an interest superior to than that which he held and because their purported claims are barred by limitation which kicked in at the death of the deceased in 1927, the judgement obtained through playing fraud on court is a nullity, and cannot confer an interest to anyone. - That the judgment of court in Civil Suit No. 528 of 2014 was premised on 20 material falsehoods, blatant lies, and connivance by the plaintiffs and the defendant calculated to mislead this court to believe that the suit belonged to the estate of the late Sir Apollo Kaggwa.

Thus leaving this judgement to stand will occasion a miscarriage of justice to the applicant thus it is in the interest of substantive justice that it is set aside. 25

## $1^st$ respondent's reply.

The 1^st respondent opposed the application through his affidavit in reply wherein he stated inter alia that there is no mistake or error apparent on the face of the record, nor is there discovery of any new and important matter of evidence which with the exercise of due diligence was not within the knowledge of the applicant, or could not be produced at the time judgment


was passed, and that because the applicant is not the registered proprietor of the suit land, he has no locus to bring this application since the land was at all material times registered in the names of the Uganda Land Commission.

That the judgement of this court was premised on evidence available to court after consultations were made with the view of settling the matter amicably $\mathsf{S}$ and that during the hearing of the case, this court made an order directing the Commissioner Survey and Mapping, as well as the Registrar of titles to avail this court all certified documents relating to the suit land comprised in FC No. 17703, Munyonyo Kyadondo, Mengo MRV 243 Folio 23 which order was complied with by the Permanent Secretary for the Ministry of Lands, 10 Housing, and Urban Development who wrote to the Deputy Registrar forwarding the information this court had asked for.

That the documents presented included the historical print of FC 17709 of Kyadondo Block 255 plots 97 and 98 as well as the cadastral print of

Kyadondo Block 255 plots 97 and 98 superimposed on the historical map 15 and that while the historical cartridge map of Fc 17703 and the cadastral map superimposed on the historical map show the name of sir Apollo Kaggwa edged therein as owner of the land, there is nothing to indicate that the late Sir Apollo Kaggwa held the suit land in his official capacity as the Katikkiro of Buganda in his official capacity. 20

That while at the time it was known practice to have the name of the owner of the land edged in the cartridge map indicating which part of the land he owned as well as the FC number, the said cartridge never showed the katikkiro of Buganda in his official capacity as owner of the land in issue thus the suit land has never been an official estate of the applicant as purported.

That the Attorney General representing the Uganda Land Commission, the registered proprietor at the time in his written statement of defence stated that there is no such title in the applicant's names thus there was no reason to have the applicant joined as a party to the suit at the time and that while there were attempts to have the matter settled with the assistance of court, several communications were made and that on 13^th December 2019, the 1^st


$\mathbf{6}$ respondent's lawyers wrote to the senior staff surveyor requesting for a detailed Area schedule showing all the information regarding the original ownership of **plots 97 & 98, Block255 at Munyonyo** and the schedule provided confirmed that Uganda Land Commission was the registered proprietor of the said pieces of land.

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That while the Secretary of the Uganda Land Commission by letter dated 21^st January 2021 addressed to the Auditor General confirmed that the Uganda Land Commission was indeed the registered proprietor of the suit land, the Solicitor General by letter dated 6^th February 2020 wrote to the Chief Government Valuer instructing him to value the land comprised in FC 17703 10 MRV 243 Folio 23 which had allegedly been converted to Kyadondo Block 255 plot 97 & 98 and that when the Chief Government Valuer conducted a boundary opening report with the historical map attached, it showed that the late Sir Apollo Kaggwa was the owner of the suit land, and that **Block 255**

plot 97 & 98 was registered in the names of Uganda Land Commission, and 15 that there was a lease of 99 years issued by the Uganda Land Commission in favour of the Registered Trustees of Kampala Archdiocese on **plot 97.**

That while there is no record showing the applicant as the registered proprietor of the suit land, **Annexure 'D'** of the affidavit in support which is a letter from the Commissioner Land Registration contains lies because the

- author thereof to wit Ms. Kabira Aisha avoided referring to the official register which showed that Uganda Land Commission as the proprietor of the land and that the historical map does not show that the suit land was ever held by Sir Apollo Kaggwa as official estate but in is own names as mailo owner. - That because the agreement between the applicant and the Government of 25 Uganda dated 1^st August 2016 does not refer to the suit land, the deponent intimated to court that he challenged the applicant to show that the suit land was listed among the titles returned to him as his official 350 square miles of land, and that while the applicant with the help of his lawyers upon observing - the certificate of title adduced by the applicant noted a few alleged 30 irregularities which in the absence of the historical register showing the exact transmission of records of this estate right from the original owner of $FC$

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17703 MRV 243 folio 23 to date, point to forgery and fraud by officials of the land registry and Buganda Kingdom.

In addition, that the then Secretary of Uganda Land Commission who is now the Commissioner Land Registration by letter dated 23^rd September 2014 informed the Attorney General on how he got the land registered in its names, $\mathsf{S}$ and that while it is surprising how the kingdom purported to cancel leases which were never registered as encumbrances on the certificate of title, the applicant was not the registered proprietor of the land so as to be entitled to compensation.

Further, that the judgement in *civil suit No.528 of 2014* could not have 10 been procured through fraud because it was based on the evidence availed to the court from the Ministry of Lands itself and that because the judgment of this court was for compensation to the respondents and did not change the proprietorship of the suit land, no miscarriage of justice will be occasioned to the applicant who is not the registered proprietor of the suit land 15

## $4$ ^th respondent's reply.

The 4^th respondent opposed the application through the affidavit in reply deponed by Mr. Andrew Nyumba, the 4^th respondent's acting Secretary. He stated that the 4^th respondent was represented by the office of the Attorney General up to the point of scheduling after which the matter proceeded $ex$ -20 parte and that while court entered judgement in favour of the $1^{st}$ – $3^{rd}$ respondents, and decreed that the suit land belonged to the estate of the late Sir Apollo Kaggwa, the deponent averred that the suit land forms part of the land that was a consequence of the 1900 agreement allotted to the office of the Katikiro of Buganda and therefore formed an official mailo estate since the office of the Katikkiro is an office within the Buganda Structures.

That while the land was by operation of the 1967 Constitution of Uganda vested in the Uganda Land Commission following the abolishment of kingdoms, all properties that had previously been vested in the commission including the suit land were returned by the Government of Uganda to the traditional leader of the Buganda Kingdom and that because the suit land has

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never been a private estate of the late Sir Apollo Kaggwa, it currently forms part of the official estate of the Kabaka of Buganda.

That the judgement of this court in Civil Suit No. 528 of 2014 was procured through falsehoods presented to court by the $1^{st}$ – $3^{rd}$ respondents and that

to let the same stand would occasion a miscarriage of justice thus it is in the $\mathsf{S}$ interest of justice that this application is granted, and costs thereof be borne by the applicant.

## Representation.

The applicant was represented by the **Legal Department of Buganda Land**

Board, and m/s Buganda Royal Law Chambers, while the 1^st respondent 10 was represented by *m/s JM Musisi Advocates & Legal Consultants*, and the 4^th respondent was represented by its legal department.

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

## Consideration by court. 15

I have perused the evidence, and read the submissions of counsel, the details of which are on court record, and which I have taken into account in determining whether or not this application demonstrates sufficient cause warranting the setting aside of the judgement and orders of this court in **Civil**

## 20 Suit 528 of 2014.

Section 82 CPA (read together with Order 46 rule 1 of the CPR) provides that: -

"Any person considering him/her self-aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred or by a decree or order from which no appeal is hereby allowed and who from the discovery of new and important matter of evidence which after the exercise of due diligence was not within his or her knowledge or could not be produced by him or her at the time when the decree was passed or order was made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason desires to obtain a review of the decree passed or order made

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against him or her may apply for a review of the judgment to the court which passed the decree or made the order."

Both the above provisions specifically allow any party who feels aggrieved by a decree or order to seek its review.

The court in Re Nakivubo Chemists (U) Ltd [1979] HCB 12 while interpreting $\mathsf{S}$ **Order 46** held that an applicant in order to succeed in a claim for review has to show firstly, that there is discovery of a new and important matter of evidence previously overlooked by excusable misfortune.

Secondly, that there is discovery of some error or mistake apparent on the face of the record; and thirdly, that review ought to be made by court for any 10 other sufficient reason.

In the case of **Yusuf vs. Nokorach [1971] EA 104**, it was held that any other sufficient reason ought to be read as meaning sufficiently of a kind analogous to the first two grounds.

The first issue for determination is whether the applicant herein is an 15 aggrieved party. An aggrieved person refers to a person who has suffered a legal grievance. (See: Re: Nakivubo Chemists (supra).

Court in the case of **Muhammed Bukenya Allibai versus W E Bukenya and** Anor; SCCA No. 56 of 1996, by Karokora (JSC) defined an aggrieved party to mean any party who has been deprived of his property.

In the present case, the applicant avers through affidavit evidence that the suit property now comprised in **Kyadondo Block 255 plots 97 & 98** which the plaintiffs/ $1^{st}$ – $3^{rd}$ respondents herein claimed to own belonged to them and that they had no right to claim compensation for the same.

The applicant alleges that the suit forms part of the official estate and not the 25 private estate of the late Sir Apollo Kaggwa. This is further admitted by the 4^th respondent who was sued for wrongfully subdividing the suit land. the 4th respondent in its affidavit in reply to the application admits that the suit land indeed belonged to the applicant's official estate.

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The applicant, though not a party to Civil Suit No. 528 of 2014, is hereby found to be an aggrieved party by virtue of the fact that he has shown interest based on the history of the suit property, the subject of the judgment of this court.

The application introduces new information and fresh issues which would $\mathsf{S}$ have been brought to the attention of this court by the applicant had he initially been made party to the suit.

The authenticity of this new information would require further investigations by court with evidence, since allegations of fraud are serious matters. This

therefore is a fit and proper case sufficient cause therefore for the grant of 10 prayers sought.

The applicant who was condemned unheard is an aggrieved party which is sufficient ground meriting the grant of the prayers sought in this application.

In the circumstances, this application is hereby granted in the following 15 terms:

- 1. The judgment of this court in Civil Suit No. 528 of 2014 is hereby reviewed, and set aside; - 2. The respondent to amend the pleadings to add the applicant within $a$ period of 14 days after the delivery of this ruling. - 3. The applicant shall file a written statement of defence within a period of 14 days, from the date of receiving the amended plaint; - 4. Rejoinder to be filed within one week upon receiving the WSD. 25 - 5. Each party to bear its own costs.

I so order.

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Alexandra Nkonge Rugadya 30

Judge

4th March, 2024.<br>Delivered by exact.<br>Outself<br> $\left(\frac{1}{5} + \frac{1}{6}\right)$ 2024.<br> $\left(\frac{1}{5} + \frac{1}{6}\right)$ 2024.

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