Independence v Sekitende & Another (Miscellaneous Application 52 of 2023) [2024] UGHC 464 (18 June 2024)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT LUWERO

HCT-17-LD-MA-052- 2023

(Arising from Land Division Civil Appeal No. 22 of 2016)

(ARISING FROM LUWERO CHIEF MAGISTRATE'S COURT CIVIL SUIT NO. 075 OF 2013)

SIMON INDEPENDECE……………….…………………APPLICANT

VERSUS

1. JULIUS SEKITENDE

2. COMMISSIONER LAND REGISTRATION…………RESPONDENTS

BEFORE LADY JUSTICE HENRIETTA WOLAYO RULING IN AN APPLICATION FOR CONSEQUENTIAL ORDERS

Introduction

- 1. By a notice of motion dated 15.06.2022, the applicant moved this court under Section 177 of the Registration of Titles Act Cap. 230; Sections 98 and 99 of the Civil Procedure Act Cap. 71, Section 33 of the Judicature Act Cap.13 and Order 52 rule 1 and 3 of the Civil Procedure Rules for orders that; - a) A consequential order be made directing the second respondent to cancel the names of the 1st Respondent from the certificate of land title for land comprised in Bulemezi Block 194 Plot 28,

Nyondo and registration of the applicant thereon as a registered proprietor of the same land.

- b) The first respondent be directed to hand over the duplicate certificate of title to the second Respondent for cancellation and in the event of default, the title be cancelled and a special duplicate certificate of title be issued to the applicant. - c) Costs of this application be provided for. - 2. The grounds in support of this application are contained in the affidavit of Simon Independence, the applicant. Only the first respondent filed his affidavit in reply. The applicant did not file an affidavit in rejoinder. - 3. When the matter came up for hearing on 29.1.2024, I directed the parties to file written submissions and all complied except the second respondent who is the Commissioner for Land Registration.

Background facts

- 4. The applicant Simon Independence sued the first respondent, Julius Sekitende vide Civil Suit No. 075 of 2013 for a declaration of ownership of suit land comprised in Bulemezi Block 194 Plot 28, at Nyondo. Julius Sekitende, in his defence and counter claim had averred that he is the owner of the suit land and that the plaintiff's possession of the suit land was obtained illegally. - 5. Her Worship Sumaya Kasule, the then Magistrate Grade one at the Chief Magistrates Court of Luwero on 05.04.2016 adjudged Simon

Independence the lawful and rightful owner of the suit land and further directed Sekitende to handover the title and effect transfer of the same to Independence.

6. Sekitende then appealed the said judgment in Land Division Civil Appeal No.22 of 2016 and on 17.7.2019, my brother Keitrima J dismissed the appeal after finding that the trial magistrate properly evaluated the evidence on record and arrived at a right decision in adjudging the Respondent Simon Independence.

Resolution of the application

7. The applicant seeks consequential orders under Section 177 of the Registration of Titles Act Cap. 230 which provides that;

> *"Upon the 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 proceeding 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 of title or entry as the circumstances of the case require; and the registrar shall give effect to that order."*

8. Mugenyi Monica J as she then was, in Park Royal Ltd v Uganda Land Commission and Ors (Miscellaneous Cause No. 46 of 2014) [2015] UGHCLD 2 (20 March 2015), held that;

> *"…Section 177 grants the High Court powers to cancel a certificate of title…. Such cancellation would be incidental to the*

*recovery of land by an applicant pursuant to proceedings that are not otherwise precluded by the RTA. This would raise twofaceted parameters that must be satisfied for an applicant to properly bring an application under Section 177 of the RTA. First, there must have been a valid recovery of land by the applicant, and secondly, such recovery of the land should have been pursuant to an action or proceeding that is permissible under the RTA."*

9. Furthermore, in Kalibbala & Anor v Attorney General (Misc. Application No. 070 of 2015) [2016] UGHCCD 46 (27 June 2016), Musota J (as he then was) inter alia observed that;

> *"…. the term consequential orders denotes an order of court giving effect to the judgment or decision to which it is consequential or resultant there from. Such an order is normally directly traceable to or flowing from the judgement of a decision duly prayed for or granted by court."*

10. The import of the above decisions is that pre-requisites to issuance of consequential orders are that the applicant recovered registered land through a judgment by a competent court.

Applicant's case

11. The applicant deposed in his affidavit that he acquired the suit land in 1997 and immediately took possession. However, in 2013, he filed the suit against the first respondent vide Civil Suit No. 075 of 2013 wherein court adjudged him the rightful owner of the suit land but that the first

respondent has refused to abide by the court orders and the said land title is still in his names.

12. Counsel for the applicant submitted that the applicant's judgment and decree from the lower court are in his favor and sufficient to seek consequential orders from court.

Respondent's case

- 13. The first respondent deposed in his affidavit that him being a beneficiary of the estate of the late Gabuderi Ssenyondwa comprised in Block 194 Plot 28 at Nyondo, has never sold his registrable interest therein. The averments in the first respondent's affidavit raise issues that have already been adjudicated by a competent court through Land Division Civil Appeal No.22 of 2016 and therefore these issues are res judicata. - 14. My role is to ascertain that a competent court passed judgment determining the dispute between the parties and the judgment conferred right to land on the successful party. I am satisfied that my brother Keitrima J confirmed the judgment of HW Sumaya Kasule that declared Simon Independence the rightful owner of land comprised in Bulemezi Block 194 Plot 28 at Nyondo and to give effect to the High Court judgment, I will invoke Section 177 of the RTA to make the necessary orders . Accordingly, I hereby allow this application with the following orders: - a) The first respondent Julius Sekitende, is directed to hand over the duplicate certificate of title for Bulemezi Block 194 Plot 28 at

Nyondo for cancellation by the second respondent within seven days of this order.

- b) In default of order (a), the duplicate certificate of title ceases to have any legal effect. - c) In default of order (a) the Commissioner Land Registration is directed to cancel the names of the first respondent Julius Sekitende from the certificate of title of land comprised in Bulemezi Block 194 Plot 28, at Nyondo and register the applicant as the registered proprietor of the said land. - d) The Commissioner Land Registration is directed to issue Simon Independence a duplicate certificate of title if Sekitende Julius fails to deliver the duplicate certificate of title for cancellation of his registration. - e) To bring an end to this litigation, each party will bear their own costs.

DATED AT LUWERO THIS 18TH DAY OF JUNE 2024 \_\_\_\_\_\_\_\_\_\_

LADY JUSTICE HENRIETTA WOLAYO

Legal Representation

Stratten Advocates for the Applicant

J. P Muganga Advocates & Solicitors for the first respondent