[2023] UGHCLD 35

# THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT KAMPALA

### (LAND DIVISION)

## **MISCELLANEOUS APPLICATION NO.1979 OF 2022**

(Arising Out of Miscellaneous Cause No.0078 Of 2022)

(Arising Out of Civil Suit No. 104 of 2017)

- 1. MUJWALA FRED - 2. NABIWERE SARAH KIGONGO

(Administrators of the estate of the Late

**YOWERI** 10

$\mathsf{S}$

**NAKUBOOLA**)::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### **COMMISSIONER LAND**

REGISTRATION:::::::::::::::::::::::::::::::::::: 15

# Before: Lady Justice Alexandra Nkonge Rugadya.

# Ruling.

### **Introduction:**

- The applicants through their lawyers, *M/s Quest Advocates* brought this 20 application by way of notice of motion under **Sections 82 & 98 of the** Civil Act cap.71 and Order 51 of the Civil Procedure Rules SI 711 seeking orders that the order of this court dismissing **Miscellaneous** Cause No.78 of 2022 be reviewed. - 25 The application is supported by the affidavit in support deponed by $Mr$ . **Bwogi Timothy,** a legal assistant attached to *M/s Quest Advocates* in

(Jubar?

Mlscellaneous Appllcation No.78 of 2022 which was allocated to Ladg Jrtsttce Ollue Kazarwe and that although the same was served o the respondent and had been fixed for hearing on 1lth July, 2022, it not take off as court was indisposed. which he deponed that sometime in June, 2022 the applicant filq:d

That when the mother file was requested for by the trial jud Mlscellaneous Cquse No.78 of 2O22, it was discovered that the mo frle had been allocated to .flon, .htstice Asiimwe Tadeo, which led to application being reallocated, and because the respondent had not file response to the application by 1lth July 2022, tlre matter was allowed parte. a

That while the applicant's submissions in support of the application h been Iiled and served on the respondent, when the matter came up hearing, the applicant was ordered to effect service on the officers of he

respondent which was done on 7th October 2022, and that Mr. Ssekab Moses the Registrar of Titles acknowledged receipt thereof. 15 ra

rejoinder thereto was filed by the applicants who through their coun maintained that the respondent had ignored their requests to have decree of this court executed on the certificate of title. Additionally, that the respondent then filed an affidavit in reply, and a

That because this court did not consider the contents of the affidavit rejoinder, Mlscellaneoas Cause No.78 of 2022 was dismissed with co to respondents and the applicant being aggrieved with the findings of court frled the instant application for court to review its orders so that application can be heard and determined on its merits. he

The application was unopposed by the respondent despite having b served with the same through counsel Moses Sekabira, who acknowled service of the same on 12fr December 2022. en ed

According to the case of **Samwiri Mussa versus Rose Achen (1978) HCB**, $297$ held that:

'Where facts are sworn to in an affidavit and they are not denied or rebutted by the opposite party, the presumption is that such facts are accepted'.

This application therefore binds the respondent. Her failure or refusal or/and neglect to file the affidavit in reply when she was duly served with the application is clear indication that she never intended to challenge the application. As a consequence, this court presumes that she admitted all facts contained in this application.

$\mathsf{S}$

Submitting in support of the application, counsel for the applicants argued that the applicants had taken steps to cause the respondent to execute the orders of this court but the respondent ignored the same and that according to **Miscellaneous Cause No.78 of 2022** the applicant was in court seeking consequential orders to have the consent decree in **Civil Suit No.104 of 2017** executed after the respondent had ignored to execute the same.

A perusal of the order dismissing *Miscellaneous Cause No.78 of 2022* dated $2^{nd}$ November 2022 reveals that this court presided over by **Hon.**

**Justice Asiimwe Tadeo** dismissed the said application on grounds that 20 the same was not properly before this court because there was no evidence on record indicating that the applicants had applied to the Registrar, and that their application had been denied before coming before this court.

Court further noted that although this court has unlimited jurisdiction, it should be exercised judicially so as to allow the Commissioner Land 25 Registration to perform its statutory duties before coming to courts, and that allowing applications of this nature will have the effect of denying the respondent its powers to perform its statutory duties.


Counsel for the applicant argues that the applications to the responde were ln form of letters made in August, 2016, and received by respondent's ofhce to wit the Registrar of Titles at Buka,lasa on 9ft and I August 202 1, copies of which were attached to the affidavit in rejoind ⁵ and that this court which was informed of the said evidence wron made the said orders. t

Section 82 otthe Clull Procedure Act Cap 77 and Order 46 rule ⁷ judgment where a party has demonstrated that there is sufficient cause do the same. the Cfutl Procedure Ru les S. I 77-7 empowers court to review

The rules are also clear that the judge who makes the order has the po to handle the application for the review of the order. In this instan however, the learned judge proceeded for his annual leave and the na of the urgency was considered by court, based on the fact that ¹⁵ applicants were of advanced age and that this matter had been in court close to six years.

This court also has the powers under Sectlon 98 oJ the Clull Proce Act, Cap 77 to make such orders as may be necessary for the ends justice as well as under Order 9 Rule 23 of the Chil Procedure Ru to set aside dismissal on sufficient cause being shown. of

Furthermore, in the case of Re- Nakluubo Chemlsts (U) Ltd HCB 72 was held that the expression sufficient should be read as mean sufliciently of a kind analogue to the discovery of new and impo evidence previously overlooked by excusable misfortune and same mi or error application on the face ofthe record. it t

It is not in dispute that the applicants prior to filing Jlltiscellaneous No.78 of 2022 had by way of letter dated 2"a August, 202 I written to respondent seeking to have the orders and decree of this court in Cl Sutt No,7O4 of 2077 executed so as to have the applicants registered ³⁰ the proprietors of the land se he oll AS

These were attached to the applicant's affidavit in rejoinder dated 17^th October 2022, and which according to the Electronic Court Case Information Management System was filed on 18^th August, 2022 before the application came up for hearing. The same was also unchallenged.

- From the onset, it is clear that there was a mistake/ error by court in $\mathsf{S}$ dismissing the order without due consideration of the requests made by the applicant to the respondent to execute the orders of court made under Civil Suit No.104 of 2017, orders which remain unchallenged and binding not only to the respondent but to this court as well. - 10 Consequently, I find it would be a proper exercise of the discretion for court to grant this application.

The Commissioner, Land Registration shall upon presentation of a copy of the judgment under **Civil Suit No.104 of 2017**, duly certified by the court, execute the orders therein within a period of thirty days (30 days).

15 No orders as to costs.

I so order.

Ocho se 20

Alexandra Nkonge Rugadya Judge 14^th February, 2023.

Delibered via<br>Accil<br>Delibered via<br>Acchange<br>J 14/2/2023