[2024] UGHC 309

## **THE REPUBLIC OF UGANDA**

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

## **HIGH COURT CIVIL APPEAL NO. 021 OF 2022**

## **(ARISING FROM MISC APPLN NO.09 OF 2020)**

## **(ARISING OUT OF CIVIL SUIT NO. 002 OF 2020)**

## **SSEGWANYI MATTHEW :::::::::::::::::::::::::::::::::: APPELLANT/APPLICANT**

## **VERSUS**

- **1. THE ESTATE OF THE LATE KIYEMBA MUHAMMAD** - **2. SSEWANDAGI ERIA** - **3. COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::: RESPONDENT**

## **RULING**

*Hon. Lady Justice Victoria N. N. Katamba*

#### **BACKGROUND**

The Appellant instituted Misc Application No. 09 of 2020 against the Respondents for a temporary injunction restraining them from interfering and changing of the status quo in land comprised in Block 420 Plot 11 land at Katovu B village in Lwengo District.

The Appellant contends that he is the Administrator of the estate of the Late Kalyowa Colonerio who purchased 80 acres comprised in the suit land from a one Joseph Kiwanuka, deceased (a former joint registered proprietor to the suit land).

The Appellant further contends that Kalyowa Colonerio took possession of the suit land in 1984, subsequent to his purchase and developed the land with grazing lands, cattle and a banana plantation and utilized a part of it for growing eucalyptus trees. It is also his contention that Kiyemba Muhammad, illegally got himself registered on the suit land and that the 2nd Respondent also purported to purchase it from Kiyembe Mohammad, illegally.

In his ruling, the learned Registrar found that the Appellant had a prima facie case with triable issues. However, in dismissing the Appellant's Application, the learned Registrar ruled that it is the 2 nd Respondent who is possession because of his lodgment of mortgages on the suit land. He found no need to grant the injunction and dismissed it.


The Appellant was dissatisfied with the findings of the learned Deputy Registrar, and thus instituted the instant appeal.

## **Representation**

The Appellant was represented by **M/s Xander & Co. Advocates**

The 2nd Respondent was represented by **M/s Kaliba Associated Advocates**

## **At institution of the Appeal, the Appellant raised six grounds of appeal to wit;**

- **1.** The learned Deputy Registrar erred in law and fact when he dismissed the temporary injunction on grounds that the mortgages on the certificate of title comprised in Block 420, plot 11 proved that it is the 2nd Respondent in possession of the suit land. - **2.** The learned trial Deputy Registrar erred in law and fact when he ignored the fact that the 2nd Respondent admitted in his affidavit in reply that it is the Applicant in physical possession of the suit land and not the Respondent. - **3.** The learned trial Deputy Registrar erred in law and fact when he failed to visit locus before making his final orders vide Miscellaneous Application No.09 of 2020 to find out who is in real possession of the suit property and activities thereon. - **4.** The learned trial Deputy Registrar erred in law and fact when he ignored the fact that the 2nd Respondent had tempered with the transfer of the suit land in his name in spite of the interim order vide Miscellaneous Application No. 010 of 2020 for bad intentions. - **5.** The learned trial Deputy Registrar erred in law and fact when he did not consider the prayer restraining the selling or transferring of the suit property until disposal of the main suit. - **6.** The learned trial Deputy Registrar erred in law and fact when he ignored the fact that the certificate of title registered in the 2nd Respondent's name illegally had been cancelled by the 3rd Respondent.

The record shows that the parties were given directives to file written submissions in the matter when it came up on 8th November 2023. Only the Appellant and the 2nd Respondent complied with the directive and their submissions will be referred from time to time in the resolutions of the grounds of appeal. In his submissions, the Appellant abandoned ground six of the appeal.


## **DETERMINATION OF THE COURT**

## **The duty of this Court as a first Appellate**

The duty of a first Appellate Court is to re-appraise or re-evaluate evidences as a whole and come to its own conclusion.

The Supreme Court has re-echoed the above principles in a number of cases like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Kibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

I therefore have the duty to re-appraise the evidence and reach my own conclusions on the various grounds of objection to the Ruling of the learned Deputy Registrar.

# **Ground one: The learned Deputy Registrar erred in law and fact when he dismissed the temporary injunction on grounds that the mortgages on the certificate of title comprised in Block 420, plot 11 proved that it is the 2nd Respondent in possession of the suit land.**

The Appellant argued that the said mortgages belong to Kiyembe Mohammed(deceased) who obtained registration on the suit land fraudulently. The Appellant contended that the learned Deputy Registrar erred when he attributed the mortgages to the 2nd Respondent who had no connection to them.

The 2nd Respondent submitted that the learned Deputy Registrar rightly considered the due diligence associated with lodgment of mortgages and correctly found that since he is the registered proprietor, he was also the one in possession of the suit land. Without expressly denying the authenticity of the Appellant's photos of his family's developments on the suit land, the 2nd Respondent implores this Court to disregard the said photos attached to the affidavit in support of the instant appeal because they were never attached to the Application in the trial court.

I am inclined to agree with the submissions of the Appellant that the learned Deputy Registrar erred when he found that the fact that the 2nd Respondent had even created mortgages on the suit land, he is the one that had possession of the suit land. This was an erroneous finding of fact because the 2nd Respondent had no connection to the mortgages which were created by Kiyemba Mohammed.


Further, creation of a mortgage on land does not of itself, prima facie, indicate that that the mortgagee bank carried out all necessary due diligence nor that by the said act, the mortgagor is the one in possession of the suit land.

This ground hereby succeeds.

**Ground two: The learned trial Deputy Registrar erred in law and fact when he ignored the fact that the 2nd Respondent admitted in his affidavit in reply that it is the Applicant in physical possession of the suit land and not the Respondent.**

The Appellant submitted that the 2nd Respondent admitted in paragraph 11 that it is the Appellant in possession of the suit land and not the former.

The 2nd Respondent submitted that under paragraph 4 of his affidavit in reply under M. A No. 09/2023, he clearly stated that he purchased the suit land from Kiyemba Muhamed and took possession of the same.

I have considered the submissions and the affidavit in reply and found that the contents of paragraph 4 are at variance with those of paragraph 11 of the 2nd Respondent's affidavit in reply to the Chamber summons.

Since parties are bound by their pleadings and the 2nd Respondent has not disowned the contents of paragraph 11 of the said affidavit which like the rest of the parts of the affidavit were made on oath, I am inclined to further agree with the Appellant that the 2nd Respondent admitted that it is the Appellant who is in possession of the suit land.

In the premises, ground two, equally succeeds.

# **Ground Three: The learned trial Deputy Registrar erred in law and fact when he failed to visit locus before making his final orders vide Miscellaneous Application No.09 of 2020 to find out who is in real possession of the suit property and activities thereon.**

The Appellant argued that since the Court was not sure of who was in possession of the suit land, it ought to have evoked its inherent powers under S.98 of the Civil Procedure Act to cause a locus visit to the suit land.

The 2nd Respondent on the other hand argued that whether or not to visit locus is a discretionary function of the Court. That the same is done to confirm the evidence that was already given in Court.

I am inclined to partly agree with the Appellant that in circumstances such as these where the contest is about a substantia area of land, in this case- 80 acres, it would be a good practice for the court to visit locus with the local authorities and satisfy itself on who has possession of the same.

This ground is also allowed.

The remaining two grounds are complaints against the learned Deputy Registrar's decision not to maintain the status quo and as such will be handled jointly.

**Ground Four; The learned trial Deputy Registrar erred in law and fact when he ignored the fact that the 2nd Respondent had tempered with the transfer of the suit land in his name in spite of the interim order vide Miscellaneous Application No. 010 of 2020 for bad intentions.**

**Ground Five: The learned trial Deputy Registrar erred in law and fact when he did not consider the prayer restraining the selling or transferring of the suit property until disposal of the main suit.**

The Appellant submitted that he drew the attention of the learned Deputy Registrar to the fact that the 2nd Respondent was changing the status quo of the suit land and that as an example he had transferred the title from Kiyembe Mohammed's names into his names. The Appellant referred this court to paragraphs 10 of the affidavit in rejoinder and 11 of the affidavit in support of the Application.

This court is also alive to; **Order 41 rule 1 of the Civil Procedure Rules Cap 71-1, in which it's provided that**:

- *a) Wherein any suit it is proved by affidavit that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution,* - *b) that the defendant threatens or intends to dispose of property with view to defraud; the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienating, sale or disposition of the property until the disposal of the suit*

It is clear that there exists an eminent threat of alienation of the suit property. This court has noted that during the pendency of the Application seeking a temporary injunction maintaining


the status quo of the suit property, the 2nd Respondent was busy changing the status quo. He even used this window to transfer the suit land into his names, conduct that was clearly calculated to defeat the looming Temporary Injunction that might have been issued against him.

In conclusion, this court agrees with the Appellant that the learned Deputy Registrar ought to have granted the order of the Temporary injunction to maintain the status quo pending determination of the rights of the parties in the main suit. The rejection of the Application was a clear error on the part of the learned Deputy Registrar of this Court in light of all the glaring threats that aimed at changing the status quo of the suit property; some of which even exposed the property to alienation and damage.

The Appeal is allowed and the orders of the learned Deputy Registrar are set a side with costs to the Appellant. Costs are to be collected at the conclusion of the main suit.

Orders

- 1. The learned Deputy Registrar's order dismissing Miscellaneous Application No. 09 of 2020 was contrary to the facts and the law governing temporary injunctions and is hereby set aside. - 2. The Appeal is allowed and orders sought in Miscellaneous Application No. 09 of 2020 are hereby granted with costs to the Appellant. - 3. The Costs awarded in (2) above shall be collected after determination of the main suit.

I so Order

Dated this 6th day of March ,2024.


# **VICTORIA NAKINTU NKWANGA KATAMBA**

## **JUDGE**