Wakilii

Elidad Mbaziira and Others v Kabayo Grace Majoro and George Kiiza (Review Application No. 213 of 2023)

High Court · [2023] UGHC 513 · 2023 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Review application seeking to set aside an order made in Civil Suit No. 003 of 2019 regarding 400 acres of unsurveyed land
Decision
The order for 400 acres set aside. The 1st Respondent ordered to pay UGX 4 billion to the 2nd Respondent or, failing payment within three months, to allow attachment of 400 acres from her titled land.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that an order directing the survey and demarcation of 400 acres of unsurveyed land to be given to the 2nd Respondent was made in error where the land was already owned by third parties with registered titles who were not parties to the original suit. The court set aside the order for the 400 acres and instead directed the 1st Respondent to compensate the 2nd Respondent with UGX 4 billion or, failing payment within three months, to allow attachment of 400 acres from the 1st Respondent's titled land.

Outcome

The order for 400 acres set aside. The 1st Respondent ordered to pay UGX 4 billion to the 2nd Respondent or, failing payment within three months, to allow attachment of 400 acres from her titled land.

Facts

In Civil Suit No. 003 of 2019, the court ordered that the 2nd Respondent was entitled to 400 acres of unsurveyed land outside the 1st Respondent's titled 241 hectares (Block 379 Plot 3), to be measured from where the 2nd Respondent originally resided. When the 1st Respondent attempted to survey this land to comply with the court order, she sought to survey land comprised in Blocks 379, 380 and 381, claiming these formed part of the 625 hectares originally allocated to her by the Uganda Land Commission. The Applicants, who held registered titles to land in Block 381 Plots 6 and 7, resisted the survey, asserting that their land did not share a boundary with the 1st Respondent's titled land and that they had acquired their titles in 2003 and 2007. The 1st Respondent had been allocated 625 hectares in 1977 but only 241 hectares were surveyed and titled as Block 379 Plot 3. A cadastral survey showed that the 1st Respondent's titled land was surrounded by land owned by other persons with registered titles.

Issues

  1. Whether the 1st and 2nd Respondents' affidavits in reply should be struck out for having been filed and served out of time and for offending the law
  2. Whether the Applicants are aggrieved persons within the meaning of Section 82 of the Civil Procedure Act and Order 46 rule 1 of the Civil Procedure Rules
  3. Whether the application meets the criteria for review
  4. Whether the Respondents should be permanently barred from using the judgment, decree and orders arising out of Civil Suit No. 003 of 2019 to interfere with the Applicants' ownership and quiet possession of land

Orders

  • The application by the 1st to 4th Applicants succeeds with costs to be paid by the 1st Respondent.
  • The 5th to 15th Applicants are struck off the application with costs to be paid to the 1st Respondent.
  • The order for the 2nd Respondent to be given 400 acres outside the 1st Respondent's Buwekula Block 379 Plot 3 is set aside since it was issued in error and cannot be enforced.
  • The 1st Respondent shall in lieu of the 400 acres pay the 2nd Respondent UGX 4,000,000,000 being the estimated value of 400 acres in the location of Block 379 Plot 3 based on the report by Katuramu & Co. Consulting Surveyors dated 23rd November 2023.
  • The payment shall be made within three months from the date of this ruling.
  • In the event that the 1st Respondent fails to meet the payment condition within the stipulated time, the 2nd Respondent shall be entitled to attach, survey and acquire a certificate of title for 400 acres from the 1st Respondent's Buwekula Block 379 Plot 3.

Rules and key headnotes

Review of Judgment — Error Apparent on Face of Record — Order Affecting Rights of Third Parties Not Party to Suit
Where a court orders the survey and demarcation of land to be given to a party without first ascertaining whether such land exists or is available, and the land in question is already owned by third parties with registered titles who were not parties to the suit, such an order constitutes an error apparent on the face of the record and is subject to review under Section 82 of the Civil Procedure Act.
Review — Aggrieved Person — Locus Standi of Third Party
A person need not have been a party to the original suit to apply for review under Section 82 of the Civil Procedure Act. Where a third party can prove that their interests are affected by the judgment or orders in a suit, they qualify as an aggrieved person entitled to seek review.
Registered Title — Protection under Section 59 of Registration of Titles Act
Section 59 of the Registration of Titles Act bestows ownership of land to persons registered on certificates of title save in instances of proved fraud. A court cannot order demarcation of land from property occupied by registered proprietors without evidence that the land was decreed to the party seeking to enforce the order as against the registered proprietors.
Pleadings — Locus Standi — Requirement to Plead Capacity
A holder of letters of administration derives the mandate to institute proceedings from the office held as administrator. The capacity in which a party joins an application must be stated in the affidavit supporting the application. Failure to plead such capacity denies the party locus standi to be a party to the application.
Review — Error of Fact or Law — Definition
For an error to constitute a ground for review, it must be apparent on the face of the record — an evident error which does not require extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit it to remain on the court record. The error may be one of fact or of law.
Affidavits — Late Filing — Court's Discretion to Allow
Where affidavits in reply are filed outside the 15-day period stipulated in Order 8 rule 1(2) of the Civil Procedure Rules, the court may exercise its discretion to maintain them on record where no prejudice was occasioned to the applicant and where hearing all parties is necessary to finally determine questions regarding their rights and avert multiplicity of suits.

Legislation cited (6)

Cases cited (15)

  • Sadrudin Nazarali Nanji v The Registered Trustees of Kampala Archdiocese (Civil Suit No. 503 of 2011)
  • Dima Dominic Poro v Inyani Godfrey (Civil Appeal No. 17 of 2016)
  • Sekasiko Christopher Mutayitwako v Edward Kasirye and Another (Civil Suit No. 077 of 2014)
  • Hannington Njuki v William Nyanzi (HCCS No. 434 of 1996)
  • Haji Abdu Nasser Katende v Vithalidas Hardas & Co Ltd (CACA No. 84 of 2003)
  • Sir John Bageire v Ausi Matovu (CACA No. 7 of 1997)
  • Dr. Arinaitwe Raphael and Others v IGG (HCCS No. 349 of 2017)
  • Jeraj Sharrif &Co. V Chotai Fancy Store(1960)EA 374
  • Surgipharm (U) Ltd v Uganda Investment Authority and Another (MC No. 65 of 2021)
  • Dr. Akampumuza v ABSA Bank Uganda Limited and Others (MA No. 999 of 2021)
  • Dr. Lam-Lagoro James v Muni University (MC No. 007 of 2016)
  • Re. Nakivubo Chemists (U)Ltd[1971]HCB 12
  • Ladak Abdullah Hussein v Griffiths Isingoma Kakiiza and Others (Civil Appeal No. 8 of 1995)
  • Mohamed Alibhai v W.E Bukenya Mukasa and DAPCB (SC CA No. 56 of 1996)
  • Edison Kanyabwera v Pastori Tumwebaze (SCCA No. 6 of 2004)

Full judgment

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

Elidad Mbaziira and Others v Kabayo Grace Majoro and George Kiiza (Review Application No. 213 of 2023) [2023] UGHC 513 (29 November 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.