Pulle & Another v Nakachwa & 4 Others (Miscellaneous Application 3794 of 2023) [2024] UGHCLD 204 (8 August 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISC. APPLICATION N0. 3794 OF 2023 ARISING FROM MISC CAUSE NO. 069 OF 2022

1. PULLE KIZITO HERMAN GERALD :::::::::::::: APPLICANTS 2. PULLE ANN JOSEPHINE

(Suing as beneficiaries of the estate of the late Hugh Francis Pulle for their benefit and interest in the suit estate land)

VERSUS

- 1. NAKACHWA HANIFA SEMANDA - 2. KINTU ABUBAKER - 3. KIWANUKA PETER SSAMULA - 4. SENTONGO MARTIN GRACE - 5. THE COMMISSIONER LAND REGISTRATION:::::::::::::::::::::::::::::::::::::::RESPONDENTS

BEFORE HON. LADY JUSTICE AISHA NALUZZE BATALA

RULING

*Introduction;*

1. This is an application for review brought by Pulle Kizito Herman Gerald and Pulle Ann Josephine (hereafter referred to as the

Applicants), by Notice of Motion under Sections 82 and 98 of the Civil Procedure Act Cap 71, Sections 33 of the Judicature Act Cap 13 and order 52 Rules 1, 2, 3 and 4th of the Civil Procedure Rules SI 71-1, for orders that;

- i) The ruling and vesting orders of court in Misc. Cause No 069 of 2022, Nakachwa Hanifa Semanda, Kintu Abubaker, Kiwanuka Peter Ssamula Sentongo Martin Grace vs. Nakazzi Agatha Pulle Alice and The Commissioner land Registration, be reviewed and set aside. - ii) A consequential order doth issue, cancelling all the certificates of title in the names of the 1st, 2nd, 3rd and 4th Respondents for land comprised in Busiro Block 400 Plots 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 102 and 103 situate at Nganjo, which was registered pursuant to the impugned vesting order. - iii) The 5th Respondent be directed to transfer back, the certificates of title for the suit land comprised in Busiro Block 400 Plots 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 102 and 103 situate at Nganjo into the names of Nakazzi Agatha Pulle Alice.

iv) Costs of the application be provided for

*Backgroud*;

- 2. The Applicants' Application is supported by an affidavit deponed by the 1st Applicant with the authority of the 2nd Applicant, the copy of the authority is on court record. - 3. The Application was opposed by the Respondents through their respective affidavits in reply to which the Applicants did not file affidavits in rejoinder. - 4. The Applicants filed submissions in support of their Application to which the Respondents filed submissions in reply and still the Applicants did not file submissions in rejoinder. In this ruling, I will consider the contents of the affidavits, the evidence attached thereon and the submissions of the parties.

*Representation;*

5. The Applicants were represented by Counsel Mpagi Sunday of, Mpagi Sunday & Co. Advocates, the 1st and 2nd Respondents were represented by Mirembe Maureen of Kabuzire, Mbabaali & Co Advocates, the 3rd and 4th Respondents were represented by Counsel Okurut Moses of, M/s Okurut Law Chambers, the 5th Respondent/ the commissioner land Registration was served with

pleadings but did not enter appearance or file any documents in court responding to the present Application.

*Issues for consideration by court;*

- 6. The Applicants by their submissions raised three issues which they argued in their chronological manner, the 1st and 2nd Respondents raised their own issues and the same applies to the 3rd and 4th Respondents. - 7. I will reframe the issues, strike out some and maintain other issues as the circumstances shall demand. I now proceed to raise the issues: - 1. Whether the Applicants' Application is proper before court. - 2. Whether the Application raises grounds for the review of the vesting order Vide Miscellaneous Cause No. 069 of 2022. - 3. What Remedies are available to the parties.

Resolution and determination of the issues;

Whether the Applicants' Application is proper before court.

8. The Applicants were not parties to Miscellaneous Cause No 069 2022, by which the Respondents were granted the impugned vesting order, as the third parties to the Application from which the vesting order was granted, they filed the current Application seeking the review of the vesting order under the provisions of, Section 82 of the Civil Procedure Act Cap 71, which provides that "…Any person himself of herself aggrieved-

- (a) by a decree or order from which an appeal is allowed by this act, but from which no appeal has been preferred; or - (b) by a decree or order from which no appeal is allowed by this act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order on the decree or order as it thinks fit. - 9. The section has received wide judicial discussion and interpretation particularly on whether a third party to an application, and or suit can apply to court for the review of the decree, order, judgment and ruling arising from the proceedings to which that person was not party, the supreme court in the cases of, Ladak Abdulla Muhammad Hussein Vs Griffiths Isingoma Kakiiza & 2 other, SCCS No 8 of 1995, held that *in a suitable case, a third party can apply for review under the inherent*

*powers of court."* Justice Musa Sekaana in the case of, Mushabe Apollo Vs Mutumba & Anor, HCMA NO. 08 of 2020, while relying on the case of Ladak Abdulla Muhammad Hussein held the same position.

10. The supreme court in, Muhammad Allibhal Vs W. E Bukenya Mukasa & 2 Anor SCCA No. 56 Of 1996, while faced with a similar situation and upon relying on the case of Kawdu v Berar Ginning Co. Ltd, Akot and others (1992) AIR Nagpur 185, ruled that a third party like Narayan was undoubtedly entitled to move the lower court for a review of its order under section 151 of the CPC (equivalent to our section 101 of CPA), currently our section

98 of the Civil Procedure Act.

11. In the instant case, the applicants are children of the late Hugh Francis Pulle who was the former registered proprietor of the suit property before it vested in Nakazzi Agatha Pulle Alice. A third party who was not party to an action can bring an application for review provided they establish that they fall within the category of an "aggrieved person". I find the applicants to fall within that category as they establish sufficient interest in the matter. - 12. My analysis of the above decisions and the provisions of the law cited is that, it is clear that a third party to an Application or suit can Apply for the review of a judgment, order, ruling and or decree arising from a suit or application to which such a person or persons were not parties, in this case the Applicants as persons who were not parties to the Application from which the vesting order arose but under the law they can bring an application for review and that being the case this Application is proper before court. - 13. The 1st and 2nd Respondents alleged that the Applicants improperly used a review Application, In addressing this matter, I shall meticulously dissect the various transactions in dispute and elucidate the essence of this application as follows:

14. *The transfer of the suit property to Nakazzi Agatha Pulle;* Under paragraph 6 of the affidavit in support of the application, the applicant avers that their sister Nakazzi Agatha Pulle fraudulently transferred the certificate of title in respect of the property into her names. A laboratory report to establish the forged signatures on transfer form is attached and marked Annexure E6.

- 15. Simply put, it is the applicants' case that the transfer of the property to Nakazzi Agatha Pulle was marred by fraud. - 16. *The transfer to the respondents;* Under paragraph 14 and 15 of the affidavit in support of the application, it is the applicants' case that the respondents by virtue of the vesting order took their estate and caused the transfer of the same into their names thus depriving the applicants of their interest in the suit land. - 17. Again, the applicants under paragraph 17 of the same affidavit deponed that they are aggrieved by the vesting order granting the respondents a special certificate of title when the applicants as the persons having the Certificate of title were not heard. - 18. This speaks to the fact that there is a likelihood that the respondents acquired Special Certificate of title in full knowledge of the existence of the duplicate Certificate of title in custody of the applicants or even aware of their interests. This could be an incident of fraud if established in court. - 19. *Interest of the beneficiaries/applicants at the time of sale to the respondents;* The 1st and 2nd respondents contend under paragraph 2(a) of the affidavit in reply that they purchased Plots

95, 96, 99, 100 and 101 from Nakazzi Pulle Agatha, the sister to the applicants.

- 20. Sentongo Martin Grace, the 4th respondent under paragraph 2 (a) of his affidavit in reply also maintained that he purchased his portion of the suit land from Nakazzi Pulle Agatha. - 21. Kiwanuka Peter Ssamula, the 3rd respondent under paragraph 2(a) of his affidavit in reply states that he purchased his portion of the suit land from Nakazzi Pulle Agatha. - 22. It is still the respondents' case that at the time they purchased the land, it was no longer estate property and ceased to be so upon transfer to Nakazzi Agatha Pulle in 2007. - *23.* Fraud is a serious matter and the party against whom it is alleged should be afforded sufficient notice to enable him or her answer the allegations. *(See; Fam International Limited and Anor V Mohammed Hamid El-Fatih Supreme Court Civil Appeal No. 16 of 1993).* - *24.* Section 176 of the Registration of titles Act accords protection against ejectment of the Registered Proprietor and one of those cases is fraud as against those persons registered as proprietors by fraud.

- *25.* The general rule is that fraud must be pleaded specifically. In the case of Yahaya Walusimbi v Justine Nakalanzi and 4 Ors MA 386 of 2018 court observed as follows: *"..we too would not hesitate [by order] to set aside [our] judgment based on fraud under our inherent powers". However, we hasten to add that before exercising that power to make such order, we would have to be satisfied on three conditions; namely that the fraud is proved strictly, that the judgment is based on that fraud and that the order is necessary either for achieving the ends of justice or prevent abuse of court process....... This alleged fraud has not been proved and cannot be proved by affidavit evidence."* - *26.* Upon thorough examination of the disputes presented by the parties in this case, it is clear that their resolution is not appropriately sought through an application for review, as such a mechanism is not intended for this purpose. - *27.* The applicants have levied grave allegations of fraud that are unsuitable for adjudication within the context of a review application, particularly when it involves challenging the title of a registered proprietor.

- *28.* Numerous substantial issues necessitate resolution through an ordinary suit, and the applicants' decision to pursue these matters within a review application is procedurally and substantively inappropriate. - *29.* The court cannot permit the applicants to effectively mask an ordinary suit as an application for review. The evidence presented by the applicants is more fitting for an ordinary suit. The applicants' allegations cannot be conclusively dealt with by mere affidavit evidence and such serious allegations of fraud cannot be decided on the strength of imagination. (See; Wandera Stephen v

Goodman Agencies Limited and Others MA 680 of 2021)

- *30.* Consequently, I find that the applicants are entitled to initiate an independent suit against the respondents regardless of the decision in Miscellaneous Cause No. 069 of 2022 to thoroughly investigate the matters in question. - *31.* In the premises, the application fails with no orders as to costs. I SO ORDER.

NALUZZE AISHA BATALA

JUDGE

08/08/2024