Wakilii

Tabula v Kange & Malomba (Miscellaneous Application 107 of 2024)

High Court · [2024] UGCOMMC 378 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for restoration to property pending determination of the main civil suit
Decision
Application for restoration dismissed; main suit to proceed expeditiously with scheduling fixed for 18th October 2024

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for restoration to property pending the main suit. The court held that granting the order would determine the merits of the main suit and render it nugatory, as the substantive claims of fraud require strict proof through oral evidence, not affidavit evidence in an interlocutory application. The court exercised its inherent powers to schedule expeditious hearing of the main suit rather than grant interim restoration.

Outcome

Application for restoration dismissed; main suit to proceed expeditiously with scheduling fixed for 18th October 2024

Facts

The applicant was the registered proprietor of land comprised in Busiro Block 275 Plot 1357 measuring approximately 22.5 decimals at Gombe. He entered into a transaction to sell 11.5 decimals to the 2nd respondent for UGX 30,000,000. The applicant alleges he gave the 2nd respondent the certificate of title to mutate only the 11.5 decimals sold, but the 2nd respondent fraudulently transferred the entire plot into his name. The 2nd respondent allegedly caused the applicant's arrest and imprisonment, and during this time illegally entered the property and placed tenants there. The 2nd respondent contends he lawfully purchased the entire property, executed proper transfer instruments, and is now the registered proprietor. The applicant brought this interlocutory application seeking restoration to the property pending determination of the main suit which claims fraud, seeks cancellation of the registration, and payment of outstanding purchase balance.

Issues

  1. Whether the Applicant should be restored to his home situated in Busiro Block 275 Plot 1357 at Gombe A pending the determination of the main suit?
  2. What remedies are available to the parties?

Orders

  • Application dismissed.
  • Matter scheduled for hearing on 18th October, 2024 at 9am for expeditious determination.
  • Costs of the application to be in the cause.

Rules and key headnotes

Registration of Titles Act — Certificate of Title — Conclusive Evidence of Ownership
A certificate of title issued under the Registration of Titles Act shall be received in all courts as conclusive evidence that the person named in the certificate as proprietor is seized or possessed of the estate or interest described therein.
Fraud — Exception to Indefeasibility — Burden of Proof
Where fraud is alleged as an exception to the conclusiveness of a certificate of title under Section 160(c) of the Registration of Titles Act, the allegation of fraud must be strictly proved, the burden being heavier than the balance of probabilities generally applied in civil matters.
Interlocutory Applications — Nature and Purpose — Interim Relief
Interlocutory applications by their nature and purpose are not intended to finally resolve the parties' rights as pleaded but seek interim reliefs pending the final determination of the suits from which they arise.
Interlocutory Orders — Grant Would Determine Main Suit — Court Will Not Grant
Where granting an interlocutory order would amount to a determination of the merits of the main suit and render the main suit nugatory, the court will decline to grant such order and instead schedule expeditious hearing of the main suit.
Fraud Allegations — Requirement for Oral Evidence — Affidavit Evidence Insufficient
Allegations of fraud are contentious matters and necessitate oral evidence of both parties rather than relying on affidavit evidence, which fails to abide by the principle of strict proof required for fraud.

Legislation cited (7)

Cases cited (14)

  • Muhindo James and 3 Others v Attorney General (Miscellaneous Cause No. 127 of 2016)
  • Port Elizabeth Municipality Vs Various Occupiers (2005) (1) SA 217 (CC) 55
  • Capital Shoppers Ltd and 4 Others v Uganda Revenue Authority (Miscellaneous Application No. 265 of 2020)
  • Otimong Dismas & 2 Others v Eastern Mining Limited (Miscellaneous Application No. 148 of 2015)
  • Legal Brains Trust Ltd v Attorney General (HCMA No. 638 of 2014)
  • American Cyanamid Co. Vs Ethicon Ltd [1975] UKHL 1
  • Imelda G. Basudde Nalongo v Tereza Mwewulizi and Another (HCMA No. 402 of 2003)
  • City Council of Kampala v Donozio Musisi Sekyaya (Court of Appeal Civil Application No. 3 of 2000)
  • Giella Vs Cassman Brown & Co. Ltd [1973] 1 E.A 358
  • Housing Finance Bank Ltd and Another v Edward Musisi (Court of Appeal Civil Application No. 158 of 2010)
  • Kagumaho Kakuyo v Shilla Ninsiima (Miscellaneous Application No. 13 of 2020)
  • Misaki Kaviigi v Musiime James (Court of Appeal Civil Application No. 147 of 2024)
  • DFCU Bank Ltd and 3 Others v MP Electronics Limited & Another (Miscellaneous Application No. 0124 of 2024)
  • Kampala Bottlers Ltd v Damanico (U) Ltd (SCCA No. 22 of 1992)

Full judgment

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

Tabula v Kange & Malomba (Miscellaneous Application 107 of 2024) [2024] UGCommC 378 (27 September 2024)
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.