Wakilii

Warwasa v Commissioner Land Registration & 2 Others (Miscellaneous Application 239 of 2023)

High Court · [2024] UGHC 234 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for survey order arising from underlying civil suit for cancellation of land titles
Decision
Application allowed with survey ordered and costs to applicant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the court has inherent power under section 98 of the Civil Procedure Act and section 33 of the Judicature Act to order a survey where such survey will help guide the court in determining the real issues between parties. A preliminary objection based on late service was overruled where respondents had actually replied to the motion, satisfying the primary purpose of service. The court ordered the Commissioner Land Registration to conduct a survey to determine whether mailo titles allegedly created over a prior freehold title overlap, with costs to be borne by the applicant.

Outcome

Application allowed with survey ordered and costs to applicant

Facts

The Applicant is the registered proprietor of land comprised in FRV 3 Folio 7 at Kasenene measuring approximately 60 acres. He filed Civil Suit No. 28 of 2022 seeking cancellation of certificates of title for Kyaggwe Block 63 Plots 96 and 97 registered in the names of the 2nd and 3rd Respondents, alleging the mailo titles had been superimposed on his prior freehold title. The 2nd Respondent holds Plot 97 measuring approximately 58 acres and the 3rd Respondent holds Plot 96 measuring approximately 0.8330 hectares, which she purchased for UGX 40,000,000. The 1st Respondent in its defence asserted that the allegation of overlap could not be conclusive without a survey report. The Applicant then brought this interlocutory application seeking an order for survey. The 2nd and 3rd Respondents opposed, arguing the application was a fishing expedition and that approved surveys already existed for their titles.

Issues

  1. Whether the court can grant an order for survey of land in dispute
  2. Whether the application was properly served within the prescribed time limits

Orders

  • Application allowed.
  • The 1st Respondent through its department of surveys and mapping is hereby directed to conduct a survey on the land comprised in Kyaggwe Block 63 Plots 96 and 97 as well as FRV 3 Folio 7 at Kasenene and furnish this Court with a report within 60 days from the date hereof.
  • The Local authorities where the suit land is located should be notified and they should take part in this activity.
  • The Applicant shall bear all the costs relating to and incidental to this survey.

Rules and key headnotes

Civil Procedure — Service of Process — Late Service — Primary Purpose of Service
Where a defendant has replied to an application on the merits, the primary purpose of service has been satisfied, and a preliminary objection based on late service should be overruled in the interest of justice.
Civil Procedure — Inherent Powers of Court — Orders for Survey
The court has inherent power under section 98 of the Civil Procedure Act and section 33 of the Judicature Act to order a survey of land in dispute where such survey will help guide the court in determining the real issues between the parties.
Evidence — Court-Ordered Survey — Disputed Title Boundaries
Where parties dispute whether land titles overlap, a court-ordered survey is an appropriate evidential tool to assist in determining the factual question of whether the disputed parcels occupy the same land.

Legislation cited (7)

Cases cited (4)

  • Jovelyn Barugahare v Attorney General (SCCA No. 28 of 1993)
  • Edison Kanyabwera v Patori Tumwebaze (Civil Appeal No. 6 of 2024)
  • Uganda Revenue Authority v Uganda Consolidated Properties Ltd (CA No. 31 of 2000)
  • Geoffrey Gatete and Another v William Kyobe (Supreme Court Civil Appeal No. 7 of 2005)

Full judgment

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

Warwasa v Commissioner Land Registration & 2 Others (Miscellaneous Application 239 of 2023) [2024] UGHC 234 (23 April 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.