[2023] UGHC 324

### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT MASAKA**

## **MISCELLANEOUS APPLICATION NO. 66 OF 2021 [ARISING OUT OF MSK CHIEF MAGISTRATES COURT LAND CIVIL SUIT NO. 102 OF 2015]**

# **SENTONGO DENIS:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

**REGISTRAR OF TITLES:::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS**

*Before: The Honourable Lady Justice Victoria NN Katamba*

### **RULING**

### **Background:**

The Applicant was the Plaintiff in Civil Suit No. 102 of 2015 at the Chief Magistrates Court of Masaka which was determined on the 20th day of January, 2021 against the Kagimu Bashir the 2nd defendant therein.

The Plaintiff/ Applicant filed the said suit challenging the ownership of Kagimu Bashir, the 2nd Defendant on land comprised in Buddu Block 325 plot 211 situate at Nakayiba A L. C.1, Nyendo Parish, Nyendo Senyange Division, Masaka Municipality in Masaka City and for trespass.

The Chief Magistrate in his Judgment dated 20.01.2021 held that the sale agreement between Kagimu Bashir and Ssemaganda John, the 1st Defendant was null and void because Ssemaganda John had earlier alone sold to the plaintiff, the applicant in this application. The learned Chief Magistrate by a decree extracted on the 30th day of April, made a consequential order that the High Court should cancel the land title in the names of the 2nd Defendant for being illegally acquired, hence this application.

The application was brought by way of Notice of Motion brought under Sections 177, 188 of the Registration of Titles Act, Cap 230; Section 33 of the Judicature Act Cap 13, as amended; and Order 52 rules 1 & 2 of the Civil Procedure Rules (CPR) S. I 71-1 as amended and all enabling Laws seeking for orders that;


1. The Respondent cancels and deregisters from the certificate of land title of land comprised in Buddu Block 325 plot 211 situate at Nakayiba A L. C.1, Nyendo Parish,

Bashir and registers Sentongo Denis the Applicant thereon as the proprietor.

2. The costs of this Application to be provided for.

The grounds of the application are contained in the affidavit of Sentongo Denis alias Sendagire, the applicant and briefly are that:

- 1. The Applicant was the plaintiff in the original Civil Suit No.102 of 2015 at the Chief Magistrates Court of Masaka which was determined on the 20th day of January,2021 against the first Respondent. - 2. Kagimu Bashir is the registered proprietor of land comprised in Buddu Block 325 Plot 211 situate at Nakayiba A L. C1, Nyendo Parish, Nyendo Senyange Division, Masaka Municipality in Masaka City. - 3. The Chief Magistrate's Court of Masaka at Masaka in Civil Suit No.102 of 2015 held that the sale agreement for the land between Kagimu Bashir and a one Ssemaganda John(second defendant in the case) is null and void as Ssemaganda John had no property to sell the land and when he had earlier on sold to the applicant/plaintiff. - 4. The trial Chief Magistrate made a consequential order that this honourable court should cancel the land title in the names of Kagimu Bashir for having been illegally acquired. - 5. The applicant now applies to this court for consequential orders that the said certificate of title for land comprised in Buddu Block 325 Plot 211 situate at Nakayiba A L. C.1, Nyendo Parish, Nyendo Senyange Division, Masaka Municipality in Masaka City registered in the names of Kagimu Bashir be cancelled at the Land Registry as provided under Section 177 of the RTA and have the applicant registered as the proprietor. - 6. It is in the interests of justice that this honorable court allows the application.

On the 20th day of May, 2021 the Application was endorsed by the court for service with the hearing date indicated in the application to be the 02nd day of September,2021. When the matter was called for hearing on the 2nd day of September,2021, the Applicant was present and the Respondents and their Counsel were absent. On 20th May, 2022, Court directed that the Respondents be served again with hearing notices indicating that the application had been fixed for hearing on the 4th day of April, 2022. An affidavit of service dated 29th March, 2022 is on record to show that the Respondent was duly served on the 28th day of March, 2022 and she acknowledged receipt. Despite being served and the extension of time, the Respondent did not file a reply nor did she attend any hearing of the application. The application, therefore proceeded *ex parte* against the Respondent.

Court directed Applicant's Counsel to file submissions and he did.


The issues raised for determination are:

- 1) Whether the applicant has satisfied the grounds for the exercise of this Honourable court's discretion to grant the consequential order sought? - 2) What remedies are available to the applicant?

### **Determination of the Court:**

Before resolving the issues raised in the application, the court must first resolve the issue of not filing an affidavit in reply. Counsel submitted that in not filing an affidavit in reply, the Respondent admitted the application. He relied on Order 9 rule 11(2) of the CPR which provides that where the time allowed for filing a defence has expired and the defendant has failed to file his or her defence, the plaintiff may set down the suit for hearing *ex parte.* In such circumstances, the defendant will not be allowed to participate in the proceedings though he or she may be present in court. In Kubibabaire vs Kakwenzire [1977]HCB 37, court held that since the appellants had been served with summons and failed to enter appearance, they had by that failure put themselves out of court and had no *locus standi.* In the instant case, the application proceeded *ex parte* against the Respondent who did not file an affidavit in reply despite being duly served. That notwithstanding, the burden remains on the party filing the suit to prove his/her case to the requisite standards still remains, as was held in Yoswa Kityo v Erya Kaddu[1982]HCB 58.

Section 102 of the Evidence Act lays the burden of proof in a suit upon the person whose action would fail if no evidence at all were given on either side and the standard is on a balance of probabilities. (See Kampala Bottlers Ltd v Damanico (U) Ltd SCCA No.22 of 1992, per Wambuzi J.

The Applicant adduced affidavit evidence that was not rebutted that he filed Civil Suit No.102 of 2015 in the Chief Magistrates Court and it was determined in his favour against a one Ssemanda John and Kagimu Bashir. In the said suit, the learned Chief Magistrate found that the Plaintiff who is the applicant herein is the rightful owner of the suit property comprising two rooms and an acre where the 2nd Defendant constructed a lock up store and that the 2nd Defendant had committed trespass against the Plaintiff. He then found that the agreement between the 1 st Defendant Ssemanda John and the 2nd Defendant, Kagimu Bashir was null and void and made a consequential order that the High Court should cancel the land title in the names of the 2nd Defendant, Kagimu Bashir for being illegally acquired. When the instant application was filed and served on the Respondent, the Registrar of Titles, she did not file an affidavit in reply. As already stated, a party who fails to file his or her defence puts himself

outside Court" ( See Sengendo versus Attorney General(1972)1EA 140; Kanji Devji versus DocuSign Envelope ID: 94CE1E44-AD01-4A5D-A29B-C01429E44D42

Damor Jinabhai & Co (1934)1E. A. C. A87)

The Respondent therefore by choice or otherwise disentitled herself of any locus standi and the right to be heard. She excluded herself from Court and the hearing.

Having settled the matter of not filing a reply to the application, I will now turn to the substance of the application which is the implementation of the Chief Magistrates order to the High Court to cancel the title in the names of the defendant for being illegally acquired.

Section 177 of the Registration of Titles Act Cap 230 provides that:

*"Upon recovery of any land, estate or interest by any proceeding from the person registered as proprietor thereof, the High Court may in any case in which the proceedings is not herein expressly barred, direct the registrar to cancel any certificate of title or instrument, or any entry or memorial in the register book relating to that land, estate or interest, and to substitute such certificate or entry as the circumstances of the case require; and the registrar shall give effect to that order."*.

In **Re Ivan Mutaka [1981] HCB 28** it was held that in order to rely on the provisions of section 185 (now section 177) of the RTA and have the register book rectified by cancellation, the applicant who invokes it has to satisfy court that he/she has recovered the land, estate or any interest in question by any proceedings from any person registered as proprietor of the land.

In **Andrea Lwanga V Registrar of Titles [1980] HCB 24** it was held that before a person has obtained judgment for the recovery of land against a registered proprietor could be registered as proprietor, he first had to apply to the court to make a consequential order, which is made consequent upon recovery of land; and that this was the only method prescribed by the RTA. The proceedings in Civil Suit No.102 of 2015 in which the Applicant/ Plaintiff recovered the land from the Defendants therein were relied on by the Applicant and annexed to his affidavit in support of the applicant. A copy of the extracted decree and certified copy of the judgment of the Chief Magistrate ordering the cancellation of title are part of the application as annexures "A' and 'B" respectively.

In applications under Section 177 of the Registration of Titles Act, the Chief Registrar should be made Respondent and it is pointless to make a person from whom land had been recovered the Respondent. (See Uganda Blanket Manufacturers Ltd v Chief Registrar of Titles Miscellaneous Application No 55/1993 per Ongom J) In the instant application, the Registrar

of Titles was named Respondent and served notice of the application but characteristically did DocuSign Envelope ID: 94CE1E44-AD01-4A5D-A29B-C01429E44D42

not file a reply.

In the premises, this court finds that the applicant has satisfied the perquisites of Section 177 of the Registration of Titles Acts and accordingly, makes the following orders:

- 1. The Registrar of Titles is hereby ordered to cancel the name Kagimu Bashir on the certificate for land known and described as Buddu Block 325 Plot 211 at Nakayiba. - 2. The Registrar of Titles should recall the Duplicate Certificate of Title currently in the custody of Kagimu Bashir and cancel the name Kagimu Bashir from it and enter the name Sentongo Denis on it. - 3. In the event that the said Duplicate Certificate of Title is not returned by Kagimu Bashir, the Registrar of Titles shall issue a new/special certificate of title to the Applicant in his name, Sentongo Denis. - 4. The Applicant will meet the costs of this application.

I so order.

Dated and delivered electronically at Masaka this 16th day of February, 2023

Victoria N. N. Katamba Judge.