Court name
High Court of Uganda
Case number
Miscellaneous Application 607 of 2009
Judgment date
2 November 2009

Charles Kiggundu & 7 Ors v John Kawesi (Miscellaneous Application 607 of 2009) [2009] UGHC 106 (02 November 2009);

Cite this case
[2009] UGHC 106

THE REPUBLIC OF UGANDA


IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

MISCELLANEOUS
APPLICATION N0. 607 OF 2009 (Arising out of civil suit N0. 179 of 2009)



1. CHARLES KIGGUNDU     
        
        


2. KYEYUNE HENRY

3. HENRIETTA KABATAIZIBWA

4. MARIA GORRETE MUSIMENTA
      
:::::::::::::   
APPLICANTS


5. CYPRIAN KAIRUMBA KAGABA

6. MARIA KENJEYO NANKUNDA

7. MUHEEKI CONCEPTAR

8. MUSIIME JOSEPH


VERSUS

JOHN KAWESI     
        
        
::::::::::::::::::      
        
RESPONDENT



RULING BY HON. MR. JUSTICE JOSEPH MURANGIRA


The above named applicants through M/s Bamwe & Co. Advocates brought this application against the respondent. The respondent
is represented by Mukasa, Lugalambi Advocates and Solicitors.



The application is by way of chamber summons, supported by an affidavit sworn by the 3rd applicant, Henrietta Kabataizibwa, brought under Order 10 rules 12, 14, 21 and 24 of the Civil Procedure Rules and section 98 of
the Civil Procedure Act. The respondent filed an affidavit in reply to the application. The applicants filed an affidavit in rejoinder
to the application and reply to the averments by the respondent in his affidavit in reply.



The application seeks the following orders; that:-

1.      
The respondent produces the original of the owner’s copy and certified copy of:

(a)     
The land title comprised in Bukalasa District Registry Mailo Register Block 12 Plot 542 Volume 6566 Folio 5 FC N0. 17962, Head Title
Volume 253 Folio 11 in the names of Maria Nakabarenge.

(b)     
A certified copy of the Registry copy of the above Title by Bukalasa District Registry.

(c)     
Originals of annextures “D” to the plaint.

(d)     
Certified copies by the issuing Authority of the annextures to the plaint marked “D”.


2.      
The costs of this application be provided for.


The brief facts of the application are that:

On 3rd July 2009 the respondent, John Kawesi, filed civil suit N0. 179 of 2009 against the Chief Registrar of Titles and the 8 applicants
to this application. The main cause of action arises from the Certificate of Title of the suit land, Block 12 Plot 542, marked annexture
“B” to the plaint.



In their Written Statement of Defence the 8 applicants, inter alia contended and averred that the Title of the subject matter presented
by the plaintiff/respondent as annexture “B” to the plaint is a forgery.



On 10th August, 2009 the 8 applicants served the respondent/plaintiff through his lawyers with a Notice to produce the documents which are
the subject of this application but the respondent/plaintiff failed or refused to do so hence this application.



The grounds for the application are stated in the supporting affidavit and rejoinder of Henrietta Kabataizibwa, the 3rd applicant on her own behalf and on behalf of other applicants, sworn on 9th September, and 15th October, 2009, respectively.



The respondent swore an affidavit in reply dated 12th October 2009.



It should be noted that the respondent in paragraph 4 in his affidavit in reply deponed that:
“That I do not posses the original certificate as requested by the applicants because it was lost when I was taken to prison
at the instance of the 2
nd applicant, and after coming out of prison I found most of my documents missing from home and my home was razed to the ground and thereafter the applicants constructed new homes in my land.”



Then in paragraph 5 thereof the respondent deponed that :-
“ on several occasions I have tried to obtain a certified copy of this title in the land office at Bukalasa and I have been
frustrated because the records at Bukalasa were tampered with”



In essence the respondent is saying he cannot comply with orders sought in the application. Yet the interpretation of his pleaded
cause of action against the applicants/defendants in paragraph 12 (a) of the plaint whereby the respondent/plaintiff attached a copy
of the Certificate of Title as annexture “B” presupposes that the said copy was copied from the Original certificate
of title of the suit land which must be in his possession. There is no where in the plaint where the plaintiff/respondent pleaded
that the original certificate of title was lost. Therefore, the respondent has the original Certificate of Title in his possession.
He must produce the same in court for inspection and any other necessary evidential value that could be attached to it.



Further, if annexture “B”, the copy of the Certificate of Title is genuine, the respondent must have it certified by
its authors that is, Bukalasa Land District Registry. In his affidavit in reply he deponed that the Land Registry in Bukalasa office
frustrated him. He did not pursue the matter any further by seeking the writ of mandamus to issue against the officials of Bukalasa
Land District Registry to do their statutory duty. More to that, if the original Certificate of Title got lost as the respondent
alleges then he would have applied for the duplicate Certificate of the suit land. This was not done by the respondent, which shows
that he has his original owner’s copy of the Certificate of Title of the suit land.



Further still, the respondent did not produce evidence to show that he applied for a duplicate certificate of title of the suit land
nor is there any evidence that he ever applied for certified copies of the Original Certificate of Title to the suit land and that
he was not assisted. The original document and the certified copies being demanded are vital in the proceedings of the main suit.



Furthermore, I have also considered the affidavit evidence of both parties, their respective submissions and the authorities cited
and found that this is a proper application whereby the sought for orders ought to be granted.



In the result, therefore, the application is allowed with the order sought therein. The respondent shall pay the costs of this application
to the applicants. The respondent is to produce in court the original of the owner’s copy and certified copies of annextures
“B” and “D” to the plaint, within 10 days from the date of this ruling.



Dated at Kampala this 3rd day of November, 2009.





__________________________

JOSEPH MURANGIRA

JUDGE