[2024] UGHC 234

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS APPLICATION NO. 239 OF 2023** ARISING FROM CIVIL SUIT NO. 28 OF 2022 WARWASA MUSA ::::::::::::::::::::::::::::::::::::

#### **VERSIIS**

1. COMMISSIONER LAND REGISTRATION

- 2. KAMBE FLORENCE MAFARA - 3. HOPE TWINOMUGISHA :::::::::::::::::::::::::::::::::::: BEFORE HONOURABLE JUSTICE DAVID MATOVU

#### **RULING**

#### Introduction

- 1. Warwasa Musa hereinafter referred to as the Applicant brought this application under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act and Order 52 rule 1 against the Commissioner Land Registration, Kambe Florence Mafara and Hope Twinomugisha hereinafter referred to as Respondents, seeking the following orders; - - That this Court issues an order to survey land $i$ comprised in FRV 3 Folio 7 at Kasenene and Kyaggwe Block 63 Plots 96 & 97 at Kasenene by the 1st Respondent through its department of surveys and mapping or Mukono District staff surveyor and furnish Court with a survey report.

- That the Applicant, 2^nd and 3^rd Respondent be bound ii. by the said survey report in resolving Civil Suit No. 28 of 2022 - Costs of this application iii.

### **Background facts**

- 2. The Applicant herein filed Civil Suit No. 28 of 2022 against the 1^st Respondent seeking for inter alia orders of cancellation and setting aside certificates of title for Kyaggwe Block 63 Plots 96 & 97, land registered in the names of the $2^{nd}$ and $3^{rd}$ Respondents. - 3. The $2^{nd}$ and $3^{rd}$ Respondents subsequently applied to be added as parties and the said application was granted. - 4. The Applicant then filed this instant application seeking for the orders hereinabove stated.

# Legal representation

5. At the hearing of this application, the Applicant was represented by Mr. Nsubuga Kenneth while the Ms. Susan Kabacwezi represented the 3^rd Respondent.

# **Evidence of the Applicant**

- 6. The Applicant deponed an affidavit in support of this application and stated that he is the registered proprietor of land comprised in FRV 3 Folio 7 land at Kasenene measuring approximately 60 acres. - 7. That the applicant filed Civil Suit No. 28 of 2022 seeking cancellation of titles comprised in Kyaggwe Block 63 Plot 96 and

97 at Kasenene because they had been super imposed on the prior freehold title.

- 8. That as a matter of practicability, mailo titles cannot be created over a prior free hold title. - 9. That the $1^{st}$ Respondent in its defence asserts that the allegation that the freehold title and mailo titles fall on the same piece of land cannot be conclusive without a survey report from the department of surveys and mapping confirming that indeed there is an overlap. - 10. That it is necessary to help Court reach a quick, just, fair and logical conclusion on the dispute. - 11. That the Respondents will not be prejudiced but rather it is to the benefit of all the parties that this application is granted.

#### **Evidence of the Respondents**

- The $2^{nd}$ Respondent deponed an affidavit in reply to the 12. application and opposing the grant of the said application. - 13. The $2^{nd}$ Respondent stated that the Applicant's title is defective, unrecognizable by law and as such cannot be a premise for any survey as requested by the Applicant. - 14. That it is a matter of common sense that foreigners cannot hold free hold titles in Uganda and yet the Applicant alleges to have purchased his land from Indians, which in itself is an illegality that ought to be resolved by this Court. - 15. That the issues raised herein by the Applicant are issues that to be determined in the main suit and as such the Applicant is pre- empting the Court's role.

- 16. That the Respondents will be prejudiced if this application is granted since it will delay Court in hearing and disposal of the same. - 17. That this application is a fishing expedition, a waste of Court's time and aimed at interfering with my right to quiet and peaceful enjoyment and possession of land comprised in East Buganda Kyaggwe Block 97 Plot 63 at Kasenene. - The 3^rd Respondent also filed an affidavit in reply opposing the 18. grant of the said application. - 19. The 3^rd Respondent states that she is the registered proprietor of land comprised in Kyaggwe Block 63 Plot 96 measuring approximately 0.8330 hectares, having purchase the same from a one Kawalya Hassan while it still formed part of Block 63 Plot 28, for a consideration of Ug Shs $40,000,000/$ = only. - 20. That upon purchase, the land was mutated and subdivided which created Plot 96 on which I am registered vide instrument number MKO-00065170 and therefore seeing no need to have the same re-surveyed. - 21. That I have enjoyed quiet possession of the property without any interference. - 22. That according to the information available from the 1^st Respondent, the Applicant's certificate of title was cancelled and as such the Applicant cannot seek order for a survey report on non-existent land.

23. That the claims made by the Applicant are frivolous and vexatious and prejudicial to my interests and as such this application ought to be dismissed with costs.

# **Arguments by Counsel for the Applicant**

- 24. Counsel for the Applicant filed written submissions and argued that although Plot 97 measuring approximately 58 acres is registered in the names of the 2^nd Respondent and Plot 96, measuring approximately 02 acres is registered in the name of the 3^rd Respondent, the said mailo titles were created on top of the Applicant's freehold title and that as a matter of common sense and practicability, mailo titles cannot be created over a prior freehold. - 25. Counsel submitted that this application is necessary to help the parties and Court reach a quick, just, fair and logical conclusion on the dispute. - 26. That the Respondents have not given any genuine reason why the land in dispute should not be surveyed to discover the truth and that the Respondents will not be prejudiced in anyway of the application is granted. - 27. Counsel submitted that it is in the interest of justice that the application is granted and prayed that this application be allowed with costs.

# Arguments by Counsel for the Respondents

28. Counsel raised a preliminary point of law in respect of the application being barred by law for late service.

- 29. Counsel submitted that the instant application was served upon the 2^nd Respondent on the 16^th day of August, 2023 and yet the same had been endorsed by Court on the 10^th day of July, 2023. - 30. Counsel further submitted that there was no application for extension of time within which to serve the application as prescribed by law. - 31. Counsel prayed that this preliminary point of law be upheld and the application dismissed with costs. - 32. Without prejudice to the foregoing, regarding the merits of the application, Counsel argued that a fact is said to be proved when Court is satisfied and as such the general rule is that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. - 33. Counsel cited the case of **Jovelyn Barugahare versus Attorney** General SCCA No. 28 of 1993. - 34. Counsel submitted that the $2^{nd}$ Responder has a certificate of title issued by the 1^st Respondent with an approved survey of the land approved by the Commissioner Surveys and Mappings. - 35. Counsel cited Section 150 of the Registration of Titles Act which provides that surveys have to be authenticated by the Commissioner Surveys and Mappings with a signature before the surveys can be accepted and/ or acted upon by the Registrar/ Commissioner Land Registration in issuing titles. - 36. In light of the above therefore, the land comprised in Block 63 Plot 97 was well delineated, demarcated and surveyed and the

surveys were authenticated by the Commissioner Surveys and Mappings as required by law.

- 37. In that regard therefore, the $2^{nd}$ Respondent does not need the survey. - 38. Counsel submitted that the instant application is a fishing expedition for the Applicant and that the same ought to be dismissed with costs.

### Issues for determination

39. Whether this Court can grant the orders as sought by the Applicant?

### Decision of Court

- 40. Before delving into the merits of this application, this Court will resolve the preliminary point of law as raised by the 2^nd Respondent regarding service out of time contrary to the provisions of Order 5 rules 1, 2 and 16 of the Civil procedure rules. - 41. Counsel cited the authority of Edison Kanyabwera versus Patori Tumwebaze Civl Appeal no 006 of 20024 wherein it was held that regarding service, the provision of this rule (regarding timelines) is mandatory. (Emphasis added) - 42. Counsel also cited the authority of **Uganda Revenue** Authourity versus Uganda Consolidated Properties Ltd CA No. 31 of 2000 where it was stated that "time limits set by statutes are matters of substantive law and not mere technicalities and must be strictly complied with".

- However, this Court notes that the primary purpose of service $43.$ is to make the Defendant aware of the court summons against him or her. See the case of Geoffrey Gatete and Anor v. William Kyobe, Supreme Court Civil Appeal No. 7 of 2005 - 44. In the instant case, the Respondents replied to the motion opposing the same. - 45. This Court therefore finds that in the interest of justice, this preliminary point of law is overruled. - 46. As regards the order for survey as prayed for by the Applicant, Section 98 of the CPA provides that

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the *process of the court".*

47. Section 33 of the Judicature Act provides that; "The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided".

- 48. Pursuant to the above provisions, this Court finds that the survey will help guide Court in the determination of the real issues between the parties. - 49. Court therefore finds merit in this application and allows it.

### Conclusion

- 50. In the final result, this application is allowed in the following terms: - - The 1^st Respondent through its department of surveys $i.$ and mapping is hereby directed to conduct a survey on the land comprised in Kyaggwe Block 63 Plots 96 and 97 as well as FRV 3 Folio 7 at Kasenene and furnish this Court with a report within 60 days from the date hereof. - The Local authorities where the suit land is located $\ddot{1}$ should be notified and they should take part in this activity. - The Applicant shall bear all the costs relating to and iii. incidental to this survey.

| Dated this | day of $A_1$ | 2024. | |--------------|--------------|-------| | | | | | David Matovu | | |

**JUDGE**