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Mubiru Christopher and Others V Baliyanja Robert 2025 UGHC 292 (12 May 2025)

The High Court of Uganda ruled on an application by Mubiru Christopher, Nanziri Harriet, and Seluwu John Sengonzi to cancel the Certificate of Title for land registered in the name of Baliyanja Robert, following a previous judgment in their favor. The court found that the application was unopposed as the respondent did not file a reply and directed the cancellation of the title, restoring the land to the third applicant. The court also ordered that each party bear its own costs.

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36 views7 pages

Mubiru Christopher and Others V Baliyanja Robert 2025 UGHC 292 (12 May 2025)

The High Court of Uganda ruled on an application by Mubiru Christopher, Nanziri Harriet, and Seluwu John Sengonzi to cancel the Certificate of Title for land registered in the name of Baliyanja Robert, following a previous judgment in their favor. The court found that the application was unopposed as the respondent did not file a reply and directed the cancellation of the title, restoring the land to the third applicant. The court also ordered that each party bear its own costs.

Uploaded by

brian mwereri
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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THE REPUBLIC OF UGANDA


IN THE HIGH COURT OF UGANDA
AT LUWERO
MISCELLANEOUS CAUSE NO. 009 OF 2024

1. MUBIRU CHRISTOPHER
2. NANZIRI HARRIET
3. SELUWU JOHN SENGONZI::::::::::::::::::::::::::::::::::::::::::::APPLICANTS
VS
BALIYANJA ROBERT ::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

BEFORE HON. JUSTICE GODFREY HIMBAZA

RULING.
Introduction.
1. This application was brought by Notice of Motion filed in this court on
28th March 2024 under sections 177 of the Registration of Titles Act Cap
230 Section 98 of the Civil Procedure Act Cap. 71, and Order 52 rule 1
and 3 of the Civil Procedure Rules. The application sought for orders that;
i) A consequential order be issued upon the recovery of land following
a judgement and decree of the Chief Magistrate’s court of Luwero at
Wobulenzi in civil suit no.236 of 2015 dated 2nd November 2017
directing a cancellation of the Certificate of title vide Bulemezi Block
59 plot 170 registered in the names of Baliyanja Robert.
ii) An order for vacation of the caveat lodged by Mubiru Christopher,
the 1st applicant be made.
iii) Costs of the application be provided for.

2. The grounds in support of this application are contained in the affidavits of


Mubiru Christopher and Seruwu John Sengonzi the 1 st and 3rd applicants
3. The respondents did not file an affidavit in reply despite being served with the
application as can be shown in the affidavit of Zinunula Arafat filed on court
record on court record on 17th April 2025. When the application came up for
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hearing on 25th April 2025, the respondent did not show up. Upon the
application of counsel for the applicants, I allowed him to proceed ex parte
against the respondent under O.9r 20 (1) CPR.

Representation

4. The applicants were represented by Counsel Seruwooza John Bosco from


Richard Kabazi & Partners whereas the respondent did not file an affidavit in
reply.

Background to the application

5. When this application came up for hearing, Lady Justice Comfort Kania
directed that the respondent be served with hearing notices again which
service was done and an affidavit of service sworn by Namatovu Rashidah
and filed on court record on 17th April 2025. On 25th April 2025, I directed
that the application proceeds ex parte.
6. The background is that the 1st and 2nd applicants are the beneficial equitable
owners of the suit land comprised in Bulemezi Block 59 plot 170 land at
Namawagya measuring approximately 1.1250 Hectares. The land is registered
in the names of the respondent Baliyanja Robert.
7. The applicants sued the respondent in Chief Magistrate’s court at Wobulenzi
together with Seruwu John Sengonzi for declarations that;
a) The suit Kibanja forms part and parcel of the estate of late Lazaro
Gavamukulya
b) A declaration that the 1st defendant has never been a Bonafide and
lawful owner of the suit kibanja.
c) A declaration that the purchase of the Mailo Interest by 1st defendant
and the sale of the of the same by the 2 nd defendant was unlawful and
fraudulent.
d) A declaration that the 1st defendant and his agents are trespassers on
the suit land.
e) An order that the 1st defendant and his agents vacate the kibanja.
f) A permanent injunction restraining the 1st and 2nd defendants and
their agents from dealing in the suit land.
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g) A consequential order doth issue that the certificate of title


acquired by the 1st defendant over the suit kibanja is cancelled.
h) Costs and damages.
8. On 2nd November 2017, the trial court passed judgement in favour of the
applicants and issued a decree directing inter alia that the prayers for
consequential orders be made to the high court to the effect that the certificate
acquired by the respondent be cancelled.
9. The respondents appealed to the High court but the appeal was dismissed by
Justice Keitirima on 22nd day of June 2022.That the applicants lodged a
caveat on the land in order to protect their beneficial interest vide instrument
no. LUW-OOOO8258. The applicants thus argued that it is in the interest of
Justice that consequential orders be issued by this court.

Issues for determination.

The issues for determination are ;

i) Whether this application is properly before this court and should


be granted.

ii) What remedies

Submissions of the Applicants’ Counsel on issue no.1.

10. The matter proceeded ex parte, and the applicant’s counsel made an
oral submission. Counsel submitted that since the respondent did not file an
affidavit in reply, it was evident that he did not oppose the application. He
argued that in such a case, there would be no need to prove what has been
admitted. He relied on the case of Musa Sbeity & Anor.Vs Akello Joan HCMA
249 of 2018.
11. Counsel submitted that the affidavits of the 1st and 2nd applicants are
to the effect that there is a judgement that led to the recovery of land
comprised in Bulemezi Block 59 plot 170 and because the trial court did not
have powers to order cancellation , the applicant invoked the powers of this
honourable court to order cancellation of the said certificate of title and the
land reverts to the former owner who is the 3 rd applicant.
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12. On the affidavits, the applicants attached the record of proceedings of


the trial court, Judgement of the Court, Decree, Dismissal order of the appeal
that had been preferred by the respondent in this application, statement of
search confirming that the land is registered in the respondent’s names and
the certificate of title of the suit land. Counsel submitted that this court is
empowered under section 161 of the RTA to order for cancellation of the
certificate of title which was fraudulently obtained . Counsel relied on the case
of Simon Independence Vs Julius Sekitende & Anor HCNANO. 52 OF
2023. Where this court presided by Justice Henrietta Wolayo ruled that the
High Court has powers on an application for consequential orders to direct
cancellation of a certificate of title where there is proof that a judgement of a
competent court under the Registration of Titles Act was passed for recovery
of land.

Resolution of issue no. 1 by court.

13. Before delving into the merits of the application, I wish to note that the
application was unopposed. The respondent opted not to file an affidavit in
reply despite evidence of service on court record. The application thus
proceeded ex parte.

In the case of Musa Sbeity & Cyber Auto Services Vs. Akello Joan MA 249
of 2018, Justice Ssekaana stated that an application where a respondent
does not file an affidavit in reply is deemed to be unopposed ;It is deemed
admitted as constituting the true position of the current application before
court. The respondent did not file an affidavit in reply in the current
application and yet he participated in the suit in the lower court and even
filed an appeal which was however subsequently dismissed. This application
proceeded ex parte.

14. The Applicant seeks consequential orders under section 177 of the
Registration of Titles Act Cap 230 which provides as follows;

“ Upon the recovery of any land, estate or interest by any proceeding


from the person registered as proprietor thereof, the High court may
in any case in which the proceeding is not herein expressly barred,
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direct the Registrar to cancel any certificate of title or instrument or


any entry or memorial in the Register book relating to that land,
estate or interest and to substitute such certificate of title or entry
as the circumstances of the case require and the Registrar shall give
effect to that order”.

15. In the case of Park Royal vs Uganda Land Commission & Ors Misc.
Cause no. 46 of 2014,(2015) UGHCLD 2, Justice Monica Mugenyi as she
then was held that;

“…Section 177 grants the High court powers to cancel a certificate


of title…such cancellation would be incidental to the recovery of
land by an applicant pursuant to proceedings that are not otherwise
precluded by the RTA. This would raise two faceted parameters that
must be satisfied for an applicant to properly bring an application
under section 177 of the RTA. First, there must have been a valid
recovery of land by the applicant, and secondly, such recovery of the
land should have been pursuant to an action or proceeding that is
permissible under the RTA”

16. The import of the above decision is that prerequisites to issuance of


consequential orders are that the applicant recovered registered land through
a judgement by a competent court.
17. In Kalibbala & Anor vs Attorney General Misc Application no.
070 of 2015 (2016) UGHCCD 46 ,Musota J(as he then was) inter alia
observed that;

“…the term consequential orders denotes an order of court giving


effect to the judgement or decision to which it is consequential or
resultant therefrom. Such an order is normally directly traceable to
or flowing from the judgement of a decision duly prayed for or
granted by court”.

18. According to evidence presented by the applicants, there is a judgement


in their favour, by a competent court. I am satisfied that judgement was
passed in favour of the applicants by H/W Kavuma John Mugagga.I have
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also seen a Decree extracted and signed on 5 th Jan 2018. The decree
contains an order for recovery of land by the applicants. The respondent
tried to appeal the decision of the Magistrate, but the appeal was dismissed
by Justice Keitirima and an order of dismissal dated 1st September 2022 was
also extracted

In light of the above reasons and authorities, I resolve issue no.1 in the
affirmative.

Issue no 2: What remedies are available.

I note that this is an old matter of 2015. There is need to bring an end to
litigation. In order to achieve this , each party ought to bear its own costs.

I will therefore invoke section 177 of the RTA to make the necessary orders.
I hereby allow this application with the following orders.

a) The respondent is hereby directed to hand over the duplicate certificate


of title for land comprised in Bulemezi Block 59 plot 170 Land at
Namawagya measuring approximately 1.1250 Hectares for cancellation
by the Commissioner Land Registration within 7 (seven) days from the
date of this order.
b) In default of a) the Commissioner Land Registration is directed to cancel
the names of the respondent Baliyanja Robert from the certificate of
title of land comprised in Bulemezi Block 59 plot 170 Land at
Namawagya measuring approximately 1.1250 Hectares.
c) The Commissioner Land Registration is further directed to restore the
names of the 3rd applicant Seluwu John Sengonzi as the registered
proprietor of the aforementioned land and issue him with a duplicate
certificate of title for the said land.
d) Each party shall bear its own costs.
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I so Order

__________________________

GODFREY HIMBAZA
Ag. JUDGE
12th May 2025

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