Wakilii

Alibhai and Another v Nanteza and Another (Miscellaneous Application No. 2103 of 2022)

High Court · [2023] UGHCLD 54 · 2023 Application Dismissed; Injunction Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for review of orders made in Miscellaneous Cause No. 79 of 2021
Decision
Application dismissed; matter to proceed to formal trial by way of suit to be filed within 30 days; interim injunction granted preventing dealings with the suit land

Observed later treatment

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Holding

The court dismissed the application for review, finding that the matter raised triable issues concerning ownership of land subject to two competing certificates of title. The applicants claimed their late father had purchased and been registered as proprietor in 2002, while the respondent claimed she was first registered as administratrix in 2022. The court held that fraud allegations and competing title claims require formal trial with evidence tested, not determination on affidavit evidence alone. An injunction was issued prohibiting further dealings with the land pending filing of a substantive suit within 30 days.

Outcome

Application dismissed; matter to proceed to formal trial by way of suit to be filed within 30 days; interim injunction granted preventing dealings with the suit land

Facts

The applicants, as executors of the estate of the late Amirali Karmali, sought review of orders made in Miscellaneous Cause No. 79 of 2021 which resulted in the 1st respondent being registered on the certificate of title for land comprised in Kyadondo Block 258 Plot 7. The applicants claimed their father had obtained a 99-year lease from the late James Hannington Bukulu Kiwanuka Mukasa, later purchased the mailo interest, merged the interests, and was registered as proprietor in 2002. The 1st respondent, as surviving administrator of James Hannington Bukulu Kiwanuka Mukasa's estate (deceased in 1985), claimed she was first registered as proprietor in February 2022 and that the estate remained un-administered until then. The applicants alleged fraud and sought to set aside the registration made in favor of the 1st respondent. Two competing certificates of title exist for the same land.

Issues

  1. Whether the orders made in Miscellaneous Cause No. 79 of 2021 should be reviewed and set aside.
  2. Whether the applicants suffered a legal grievance entitling them to review.
  3. Whether the court can resolve competing claims over registered titles on affidavit evidence alone.

Orders

  • Application for review dismissed.
  • An injunction issues prohibiting any further dealing or transactions in respect of the suit land (Kyadondo Block 258 Plot 7) until all issues are determined in a suit to be filed within 30 days from the date of this ruling.
  • Each party to meet its own costs.

Rules and key headnotes

Civil Procedure — Review of Orders — Grounds for Review
An application for review may be granted on three grounds: (a) where there is a mistake or manifest error apparent on the face of the record; (b) where there is discovery of new and important evidence which after exercise of due diligence was not within the applicant's knowledge or could not be produced at the time when the decree was passed or order made; or (c) where any other sufficient reason exists.
Civil Procedure — Review — Legal Grievance Required
For an application for review to succeed, the party applying must show that he or she suffered a legal grievance and that the decision pronounced against him or her by court has wrongfully deprived him or her of something or wrongfully affected his or her title to something.
Land & Property — Impeachment of Certificate of Title — Standard of Proof
An order which sets out to impeach a certificate of title can only be granted by court after fraud has been proved in an ordinary suit, not through an application by way of affidavit evidence. Fraud is a grave matter requiring proof beyond that expected in an ordinary civil suit.
Land & Property — Competing Titles — Triable Issues
Where two subsisting certificates of title exist in respect of the same land claimed by different interests, the matter raises triable issues requiring investigation of the background and circumstances that led to issuance of each title through formal trial with documentary and other evidence tested, rather than determination on affidavit evidence alone.
Civil Procedure — Injunctions — Preserving Subject Matter Pending Trial
Where competing claims over land raise triable issues requiring formal determination, the court may grant an injunction prohibiting further dealings with the land until the issues are finally determined in a suit, to preserve the subject matter of the dispute.

Legislation cited (7)

Cases cited (3)

  • Adam v Madaga (High Court Miscellaneous Application No. 74 of 2013)
  • Mubuuke v UEB (High Court Miscellaneous Application No. 98 of 2005)
  • Busoga Growers Co-operative Union Ltd v Nsombo & Sons Ltd (High Court (Commercial Court) Miscellaneous Application No. 123 of 2000)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Alibhai_and_Another_v_Nanteza_and_Another_(Miscellaneous_Application_No._2103_of_2022)_[2023]_UGHCLD_54_(9_March_2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.