Wakilii

Mukasa v Musamali (Ma No. 04 of 2011)

High Court · [2013] UGHCLD 68 · 2013 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Deputy Registrar's refusal to grant execution of consent decree for eviction
Decision
Execution refused; appellant may not evict respondent from land obtained by false pretences pending determination of proper civil proceedings

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a court cannot sanction what is illegal and an illegality once brought to the attention of court overrides all other pleadings including consent judgments. Where a decree holder has been convicted of obtaining registration of land by false pretences, execution of a decree for eviction from that land will be refused. A vesting order can only be granted after a successful civil suit for recovery of land against the registered proprietor, not following criminal proceedings. Appeal substantially dismissed save for the order directing a vesting order, which was set aside.

Outcome

Execution refused; appellant may not evict respondent from land obtained by false pretences pending determination of proper civil proceedings

Facts

The appellant obtained a consent judgment in 2006 for eviction of the respondent from land comprised in Kibuga Block 10 Plot 173. The respondent failed to vacate and a warrant for vacant possession was issued but could not be executed. When the appellant applied for renewal of the warrant, the respondent showed cause by adducing evidence that the appellant had been convicted by Buganda Road Court of obtaining registration of the land by false pretences and sentenced to one year imprisonment. The High Court upheld the conviction on appeal. The deputy registrar refused to grant execution on the ground that the appellant had no valid title, and ordered the file to be placed before a judge for a vesting order to restore the land to the administrators of the estate of the late Dioni Diosi Bwete. The appellant appealed the registrar's decision.

Issues

  1. Whether the deputy registrar erred in refusing to execute a decree where the decree holder had been convicted of obtaining registration of the land by false pretences.
  2. Whether the existence of a purported appeal in the Court of Appeal against the criminal conviction affects the registrar's decision.
  3. Whether the deputy registrar erred in ordering the file to be placed before a judge for a vesting order where the administrators of the estate were not parties to the suit.

Orders

  • Appeal substantially dismissed save for ground 3.
  • Deputy registrar's decisions not to grant execution upheld.
  • Deputy registrar's order to put the matter before the trial judge for a vesting order set aside.
  • Three quarters of the costs of the appeal awarded to the respondent.

Rules and key headnotes

Civil Procedure — Execution — Illegality — Effect of Criminal Conviction on Decree Holder
A court cannot sanction what is illegal and an illegality once brought to the attention of court overrides all other pleadings including consent judgments and admissions. Where a decree holder has been convicted of obtaining registration of land by false pretences, the court will refuse to execute a decree for eviction from that land as execution would facilitate enjoyment of property acquired fraudulently and illegally.
Civil Procedure — Execution — Show Cause Proceedings — Evidence of Supervening Events
In proceedings to show cause why execution should not issue, a respondent may adduce evidence of supervening events that render the decree unenforceable. A consent signed agreeing to execution may be overtaken by subsequent developments such as the decree holder's criminal conviction for fraud relating to the subject matter.
Civil Procedure — Appeals — Appeals Out of Time — Proof of Pending Appeal
A notice of appeal and memorandum of appeal filed out of time without proof of an application for extension of time do not constitute valid proof of a pending appeal. Uncertified copies of purported appeal documents lack authenticity and cannot be relied upon to establish the existence of an appeal.
Land & Property — Registration of Titles — Vesting Orders — Prerequisites under Section 177
Under section 177 of the Registration of Titles Act, consequential orders directing cancellation of a certificate of title or entry in the register book should follow a successful action and proceedings to recover land from the person registered as proprietor. Criminal proceedings against a registered proprietor do not amount to an action to recover land for purposes of section 177. A vesting order can only be appropriately granted after a successful civil suit for recovery of land against the registered proprietor.

Legislation cited (4)

Cases cited (2)

  • Makula International Ltd v Cardinal Nsubuga & Another [1982] HCB 11
  • Ronald Katende v Registrar of Titles (Miscellaneous Application No. 08 of 2005)

Full judgment

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

Mukasa v Musamali (Ma No. 04 of 2011) [2013] UGHCLD 68 (4 July 2013)
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.