[2025] UGHCCD 54

# THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

### (CIVIL DIVISION)

### MISCELLANEOUS APPLICATION NO.235 OF 2024

BYARUHANGA JOHN PATRICK ::::::::::::::::::::::::::::::::::::::: APPLICANT

### VERSUS

### COMMISSIONER LAND REGISTRATION :::::::::::::::::::::: RESPONDENT

BEFORE: HON. JUSTICE SIMON PETER M. KINOBE.

# RULING

### BACKGROUND

The applicant brought this application under Articles 42, 44 (C), 28 and 50 of the

Constitution and Section 40 of the Judicature Act Cap. 16, Rules 3, 4, 5, 6, 7 and 8 of the Judicature (Judicial Review) Rules,2009 for orders that;

1. A declaratory order that the decision of the respondent cancelling the applicant's certificate of title in respect of land comprised in Singo Block 85, Plot 92 land at Sebobo Mityana district without according the applicant a fair hearing was illegal, irrational and procedurally improper.

- 2. An order of certiorari calling for and quashing the impugned decision of the respondent as contained in the Respondent's resolution, regarding land comprised in Singo Block 85, Plots 91,92, 93,94,95,96 and 97 (Formerly Plot 6) Land at Sebobo Mityana District dated the 4th day of September, 2024. - 3. An order of mandamus compelling the respondent to reinstate back the applicant as the proprietor of Singo Block 85, Plot 92 on to the Register. - 4. A permanent injunction restraining the respondent from any further alteration and or cancellation of the applicant's certificate of title. - 5. Costs of the application - 6. Any other relief court may be pleased to grant.

The grounds of this application are specifically set out in the affidavit of the applicant but briefly are that;

- a) The applicant is a bonafide purchaser and registered proprietor of the land comprised in Singo Block 85, Plot 92 land at Sebobo Mityana district. - b) The applicant applied for and obtained leave to file this application for judicial review out of time. - c) The applicant was never informed of any public hearing scheduled on the 23rd May 2023 during which a resolution to cancel his certificate of title was reached by the Respondent. - d) The applicant's last known registered address was P. O. Box 142 Mityana and not 1044, Kampala as stated by the Respondent in its resolution dated 4th September 2023. - e) From the time of the purchase to date, the applicant has been in possession of the land whose certificate of title was cancelled and has established his home with the complainant being his neighbour. - f) He was not aware of the process by which his title was cancelled neither was the decision communicated to him by the respondent or complainant. - g) He was informed of the cancellation of his title by the area Local Council Chairperson upon which he instructed his lawyers to confirm the communication. - h) His lawyers obtained the Resolution from the Respondent dated 4 th September 2023 confirming that his certificate of title had been cancelled.

i) It was in the interest of justice that the application be granted.

The respondent filed an affidavit in reply to oppose the application. In the affidavit sworn by Sekitto Moses, the Ag. Registrar of Titles of the respondent, three preliminary objections were raised;

- 1. That the application was improper, incompetent, misconceived, frivolous and an abuse of court process. - 2. That the application for judicial review was only available where the statutes do not provide any other remedy to the aggrieved party. - 3. That the applicant had not exhausted the existing remedies available within the public body or under the law before filing this application. - 4. That all the affected parties had not been notified by the applicant before filing of this application.

The grounds in opposition of the application are briefly that;

- a) The respondent is charged with the statutory duty of keeping the sanctity of the Land Register with special powers to cancel certificates of title issued illegally, irregularly or erroneously. - b) The respondent received a complaint from Lule Eriab, an administrator of the estate of the late Mulindwa Zakayo who was the former registered proprietor of the land comprised in singo Block 85, Plots 91,92, 93,94,95,96 and 97 (Formerly Plot 6) Land at Sebobo Mityana District, requesting for cancellation of entries of current registered proprietors from the Register for having been registered thereon illegally. - c) The late Mulindwa Zakaayo was registered as a joint tenant alongside three others and he was the last one to survive. - d) The complaint further alleged that Plot 6 was subdivided into various plots and registered into the names of unknown persons without his knowledge or consent. - e) Upon receipt of the complaint, a critical perusal and interrogation of the land information system was conducted and a notice of intention of effect changes

dated 24th April 2023 was issued to all the Parties concerned including the applicant, inviting to a public hearing. That the public hearing was conducted on 23rd May 2023 and the applicant did not appear or respond to the notice.

- f) At the hearing the complainant submitted a duplicate copy of certificate of title for land comprised in singo block 85 plot 6. - g) The respondent discovered that Plot 6 was erroneously subdivided without the duplicate certificate title contrary to the law. - h) The title which was used to subdivide plot was not a genuine one. - i) Based on these findings, the respondent cancelled the entries made under the different plots including that of the applicant.

# REPRESENTATION

The applicant was represented by Ntumwa Shabila (holding brief for Mugerwa Vincent) and the Respondent by Arinaitwe Sharon.

# DETERMINATION

I have read the application, the affidavit in support, the affidavit in reply and rejoinder together with the submissions of both parties.

The respondent seems to hinge its reply on the justification of its decision and not the process.

It is vital to note that Judicial review is not concerned with the decision but rather with the process through which the decision was made.

Under judicial review, courts check the exercise of power by those exercising quasijudicial functions. Administrative quasi-judicial powers should be exercised judiciously in line with the principles of natural justice. Individuals should be treated fairly by the authority to which s/he has been subjected to. *Ref; Haj Kaala Ibrahim Vs the Ag and anor Mc 23 of 2017, also, DOTT Services Ltd Vs Attorney General Misc Cause No.125 of 2009,*

An applicant for Judicial Review must prove that the decision made was tainted either by; illegality, irrationality or procedural impropriety.

# ISSUE FOR DETERMINATION

- 1. Whether the application is properly before this court, - 2. Whether the Respondent's decision dated the 4th day of September, 2023 cancelling the Applicant's title in question was tainted with illegality, irrationality and procedural impropriety. - 3. What remedies are available to the parties

# ISSUE ONE

I have read the preliminary points of law raised by the respondent which basically are that;-

- a) The applicant has not exhausted all local remedies available to him. - b) All parties likely to be affected by this application for judicial review were not served with the same as required by law.

# The applicant has not exhausted all local remedies available to him.

The respondent relies on Section 88(12) of the Land Act Cap 236 that provides for an appeal to the District Land Board from decisions made by the Commissioner pursuant to his special powers under Section 88 of the Land Act Cap 236.

### Section 88(12) provides that;

# *"Any party aggrieved by a decision or action of the Commissioner under this section may appeal to the District Land Tribunal within sixty days after the decision was communicated to that party".*

The respondent argues that this appellant jurisdiction was vested in the Courts given that the District Land Tribunals no longer exist. The respondent relies on the case of Sebirumbi Kisizingo Vs Commissioner Land registration and Anor Civil Appeal No 16 of 2016 (on Practice Direction No1 of 2006).

That therefore, the remedy available to the applicant is an appeal to the Courts and not judicial review. The respondent cites various authorities on the exhaustion of

local remedies and an appeal being the only remedy available to the applicant. Some of the matters referred to include, Mohamed Magezi Vs the Commissioner of Land Registration MC 172 of 2017, Mukimbiri Ronald Vs Commissioner Land Registration and others HMC 006 of 2023.

In rejoinder the applicant states that the District Land Tribunals referred to in Section 88(12) of the Land Act cap 236 are no longer existent and therefore the remedy of appeal is not available to the applicant. The applicant relies on the cases Kiiza George and 2 ors Vs The commissioner Land Registration and anor MC No.6 of 2023 and the case of Deo Semakula Vs Beyogera Valentine and 20rs HCCS No. 422 of 2013

I have read all the cases relied upon by both the respondent and applicant and find that the courts have recently interpreted the mandate of the High Court in as far as Judiciary Review is concerned on matters arising from the respondent's exercise of its Special Powers under Section 88 of the Land Act.

I am persuaded by the arguments in the cases referenced below as follows;-

The High Court can revise a decision under S.83 CPA even where an appeal would lie. (*see Twine Amor Vs Tamusuza James (C/R 11/09*) )

# In Kiiza George and 2 ors Vs The commissioner Land Registration and anor MC No.6 of 2023, *it was held that,*

*"I am satisfied nevertheless that there is no available remedy of appeal for the Applicants and it cannot be said that under S.91(10) of [the](https://ulii.org/akn/ug/act/1998/16) [Land](https://ulii.org/akn/ug/act/1998/16) [Act,](https://ulii.org/akn/ug/act/1998/16) the remedy against the decision of the Commissioner (1 st Respondent) would be an appeal to the High Court.*

In the case of *Mugasa Grace Adyeri Vs the Commissioner Land Registration HMC No 257 of 2023, His lordship Justice Boniface Wamala extensively discussed Section 88(12) together with Practice direction No.1 of 2006 that vested the appellant Jurisdiction in Section 88(12) in magistrate court grade 1.*

He states that,

*"given that the applicant herein seeks to challenge the decision making process on grounds of illegality, irrationality and procedural impropriety, and not on the merits of the decision it is obvious that the applicant could not lodge an appeal to the magistrates courts. Similarly in the absence of a clear legal provision it would be a gamble on the part of the applicant to lodge an appeal in the High Court given the clear legal position that an appeal is a creature of statute. Indeed, under Article 139(1) of the Constitution of Uganda the High Court has "unlimited original jurisdiction in all matters and such appellant and other jurisdiction as may be conferred on it by this Constitution or other law" . It follows that in absence of a law conferring appellant jurisdiction upon the High Court in these circumstances a party cannot assume such jurisdiction upon the court. The court can only exercise inherent jurisdiction in a matter that is properly before it "*

I fully associate myself with this narrative.

In Deo Semakula Vs Bayogera Valentine Kayungo & Ors HCCS No.422/13 it was held that "…….the provisions of S.91 (10) Land Act by their wording are not mandatory"

In National Union of Clerical, Commercial & Technical Employees Vs NIC SCCA. No17/1993 (reported) IV KALR 60 it was stated that, it remains a question of court's discretion whether or not to invoke court's inherent jurisdiction to disregard a specific provision or procedure provided by the law. Certainly such discretion is to be exercised judiciously, depending on what would be the demands of justice. It was further stated that the Applicants having raised an issue of "illegality", this court would not close its eyes from investigating it on the mere grounds that there exists an alternative remedy for the Applicants to appeal.

I agree with this position for the very reason that the wording of section 88(12) is not mandatory in nature but also provides a remedy that is not readily accessible to the applicant. Court cannot fetter its powers to interrogate and investigate an illegality arising from the excessive use of authority and thereby leading to a miscarriage of justice. The court is empowered to supervise administrative entities to ensure that there is no excessive use of authority and or abuse of power. In my opinion, an appeal in the circumstances would not suffice as the same would require an evaluation of the evidence on record. The very contention of the applicant is that he was not heard and therefore his side of the story would not form part of the record of appeal. Therefore, an appeal would not offer him a remedy as there would be nothing on his side to evaluate.

The illegality complained of here is the failure to accord the applicant a right to be heard.

I therefore dismiss this preliminary objection and proceed to the second preliminary objection.

# All parties likely to be affected by this application for judicial review were not served with the same as required by law.

The respondent contends that there was a failure to serve all the persons likely to be affected by this particular application for Judicial Review the respondent relies on Rule 6 (2) and (5) of the Judicature (Judicial Review) Rules of 2009 which mandates the service of the notice of motion on all persons directly affected by the application. The respondent also relies on section 88(12) of the Land Act cap 236 and the case of Mushabe vs Mutumba and another MC No.8 of 2020, Where Justice Musa Ssekaana held that *"the court is enjoined to apply rules of fairness and not condemn a person unheard especially in judicial review matters. Rule 6 of the Judicature (Judicial Review) Rules 2009 provides for notification of all the affected party in all circumstances"*

While I agree with this decision, it is my opinion that this authority is totally distinguishable from the matter before us. The process of Judicial Review challenges the excessive use of powers by an administrative entity in this case the Commissioner for Land Registration. It does not determine the private rights of parties. The court will be interested in checking the excesses of the administrative entity and not any other party. In this case the entity being checked is the "Commissioner Land Registration" in the exercise of its powers under Section 88 of the Land Act cap 236. It is thus important to note that any would be beneficiary is not a person considered affected by the decision in line with Rule 6 of the Judicature (Judicial Review) Rules.

I find that the relevant party is the "Commissioner Land Registration" who has been served. I therefore dismiss this preliminary objection and resolve issue no.1 in favor of the applicant and proceed to issue no. 2 .

#### ISSUE TWO

# Whether the Respondent's decision dated the 4th day of September 2023 cancelling the Applicant's title ln question was tainted with illegality, irrationality and procedural impropriety?

The gist of the applicant's argument in his application, the affidavit in support of the application and in his submission is that the decision of the respondent was irrational and illegal because the applicant was not given a fair hearing.

He further contends that he was not served with a hearing notice to his known address. That his known address, on the certificate of title is P. O. Box 142 Mityana which was given at the time of registration and remains effective today. That instead the respondent delivered the notice to P. O. Box 10454 Kampala an address not belonging to the applicant. That as a result the applicant was not aware of the proceeding and was condemned unheard contrary to the law.

The respondent in its affidavit in reply together with its submissions briefly contends that, the respondent followed the procedures set down by the law and that the applicant was very much aware of the same. That the applicant was duly served with the notices of intention to effect changes to the register on his registered mail and the Daily Monitor Publications.

Section 88 (1) Provides that; -

*Subject to the Registration of Titles Act, the Commissioner shall, without referring a matter to a court or a District Land Tribunal, have power to take such steps as are necessary to give effect to this Act, whether by endorsement or alteration or cancellation of certificates of title.*

Section 88 (2) Provides that; -

*The Commissioner shall,…………. give not less than twenty-one days' notice, of the intention to take the appropriate action, in the prescribed form to any party likely to be affected by any decision made under this section.*


#### Section 88 (2a) Provides that; -

*The Commissioner shall conduct a hearing, giving the interested party under subsection (2) an opportunity to be heard in accordance with the rules of natural justice, but subject to that duty, shall not be bound to comply with the rules of evidence applicable in a court of law.*

#### Section 88 (2b) Provides that; -

*Upon making a finding on the matter, the Commissioner shall communicate his or her decision in writing to the parties, giving the reasons for the decision made, and may call for the duplicate certificate of title or instrument for cancellation, or correction or delivery to the proper party.*

For there to be a fair hearing the applicant herein ought to have been served with a notice and heard as required by law.

From the applicant's submissions the notice was served to a wrong address and not to his known registered address.

This assertion is not denied by the respondent who instead insists on service to an address that does not belong to the applicant. The respondent also takes the extra initiative to serve the applicant through a published in the Daily Monitor Publication.

Substituted service in the Daily Monitor Publication may be found to be sufficient in a situation where the address of the affected party is not known. However, in a matter where the address of the affected party is known as is in the current application, I fail to find this substituted service sufficient. This is more so because, the greater percentage of Ugandans is illiterate and does not read and or have access to newspapers. In a matter that affects a party's interest in land, all efforts should have been made to serve the applicant personally to hisregistered address. Any service to another address or service by substituted service would be insufficient and in my view done in bad faith with the intention of denying the applicant his inherent right to be heard.

I therefore agree with the applicant that he was not accorded a fair hearing as envisioned in the principles of natural justice and as required by the Section

91 (above referenced). I also agree with the applicant that the service of the notice as required by law was not effective.

#### Procedural impropriety

In the case of *Twinomuhangi vs Kabale District and others [2006] HCB130* Court Held that;

"*Procedural impropriety is when there is failure to act fairly on the part of the decision-making authority in the process of taking a decision. The unfairness may be in the non-observance of the rules of natural justice or to act with procedural fairness towards one affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative instrument by which such authority exercises jurisdiction to make a decision*."

It is my holding that there was procedural impropriety on the part of the respondent in its failure to serve a notice on the applicant and thereby failing to accord the applicant a fair hearing. This was contrary to the provisions of Section 88 of the Land Act cap 236 (above referenced).

### Illegality

[A decision can be overturned on the ground of illegality if the decision-maker did](https://www.bing.com/ck/a?!&&p=055fd5754fe2afd790391ad01cc41c6dc1897e3bb229953c1bc3705780569061JmltdHM9MTc0NjQwMzIwMA&ptn=3&ver=2&hsh=4&fclid=3e5c54a8-c51f-68e8-382b-4174c4b16900&psq=illegality+in+judicial+review&u=a1aHR0cHM6Ly93d3cuaW5zdGl0dXRlZm9yZ292ZXJubWVudC5vcmcudWsvZXhwbGFpbmVyL2p1ZGljaWFsLXJldmlldw&ntb=1) [not have the](https://www.bing.com/ck/a?!&&p=055fd5754fe2afd790391ad01cc41c6dc1897e3bb229953c1bc3705780569061JmltdHM9MTc0NjQwMzIwMA&ptn=3&ver=2&hsh=4&fclid=3e5c54a8-c51f-68e8-382b-4174c4b16900&psq=illegality+in+judicial+review&u=a1aHR0cHM6Ly93d3cuaW5zdGl0dXRlZm9yZ292ZXJubWVudC5vcmcudWsvZXhwbGFpbmVyL2p1ZGljaWFsLXJldmlldw&ntb=1) [the legal power to make that decision. This can happen if the decision](https://www.bing.com/ck/a?!&&p=055fd5754fe2afd790391ad01cc41c6dc1897e3bb229953c1bc3705780569061JmltdHM9MTc0NjQwMzIwMA&ptn=3&ver=2&hsh=4&fclid=3e5c54a8-c51f-68e8-382b-4174c4b16900&psq=illegality+in+judicial+review&u=a1aHR0cHM6Ly93d3cuaW5zdGl0dXRlZm9yZ292ZXJubWVudC5vcmcudWsvZXhwbGFpbmVyL2p1ZGljaWFsLXJldmlldw&ntb=1)[maker acts outside or beyond its powers, also known as 'ultra vires', or misdirects](https://www.bing.com/ck/a?!&&p=055fd5754fe2afd790391ad01cc41c6dc1897e3bb229953c1bc3705780569061JmltdHM9MTc0NjQwMzIwMA&ptn=3&ver=2&hsh=4&fclid=3e5c54a8-c51f-68e8-382b-4174c4b16900&psq=illegality+in+judicial+review&u=a1aHR0cHM6Ly93d3cuaW5zdGl0dXRlZm9yZ292ZXJubWVudC5vcmcudWsvZXhwbGFpbmVyL2p1ZGljaWFsLXJldmlldw&ntb=1) itself in law. [A court with authority for Judicial Review may invalidate this](https://www.bing.com/ck/a?!&&p=055fd5754fe2afd790391ad01cc41c6dc1897e3bb229953c1bc3705780569061JmltdHM9MTc0NjQwMzIwMA&ptn=3&ver=2&hsh=4&fclid=3e5c54a8-c51f-68e8-382b-4174c4b16900&psq=illegality+in+judicial+review&u=a1aHR0cHM6Ly93d3cuaW5zdGl0dXRlZm9yZ292ZXJubWVudC5vcmcudWsvZXhwbGFpbmVyL2p1ZGljaWFsLXJldmlldw&ntb=1) decision. Illegality deals with, powers and jurisdiction. When power is not vested in the decision maker then any acts made by such a decision maker are ultra vires.

In the case of *R v lord President of the Privy Council, ex parte Page [1993] AC 682 Lord Browne-Wilkinson* noted that;

"The *fundamental principle(of judicial review) is that the courts will intervene to ensure that the powers of a public decision-making bodies are exercised lawfully. In all cases…this intervention….is based on the proposition that such powers have been conferred on the decision-maker on the underlying assumption that the powers are*


*to be exercised only within the jurisdiction conferred, in accordance with fair procedures and, in a Wednesbury sense, reasonably. If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or is Wednesbury unreasonable, he is acting ultra-vires his powers and therefore unlawful."*

The term lawfully refers to exercising one's mandate in a way that is allowed or recognised by law or in accordance with the law.

The failure to serve notice as required by Section 88 of the Land Act and thereby failing to accord the applicant a fair hearing as required by Section 88 (2a) was ultra vires the respondent's jurisdiction. The respondent exercised its jurisdiction outside the provisions of law and in a manner that was procedurally irregular.

### Irrationality/unreasonableness

Irrationality/unreasonableness has been defined to mean when there has been such gross unreasonableness in the decision taken or act done, that no reasonable authority addressing itself to the facts and law before it would have made such a decision. Such a decision is said to be in defiance of logic and acceptable moral standards. *See: Council of Civil Unions Vs Minister of the Civil Service [1985] AC 374.*

The question that this court must answer is whether the impugned decision of the respondent was tainted with gross unreasonableness given the circumstances of this case as presented and discussed above.

Given that there was no notice to the applicant as required by law and that as a result the applicant was excluded from the hearings, the decision taken without according him a fair hearing was unreasonable given the circumstances.

### ISSUE THREE

# *What remedies are available to the parties?*

# *The applicant sought the following remedies*

1. A declaratory order that the decision of the Respondent cancelling the


Applicant's certificate of title in respect of land comprised in Singo Block 85, Plot 92 land at Sebobo Mityana district without according the applicant a fair hearing was illegal, irrational and procedurally improper.

- 2. An order of certiorari calling for and quashing the impugned decision of the Respondent as contained in the Respondent's resolution, Re land comprised in Singo Block 85, Plots 91,92, 93,94,95,96 and 97 (Formerly Plot 6) Land at Sebobo Mityana District dated the 4th day of September, 2024. - 3. An order of mandamus compelling the Respondent to reinstate the applicant as the proprietor of Singo Block 85, Plot 92 on to the Register. - 4. A permanent injunction restraining the respondent from any further alteration and or cancellation of the applicant's certificate of title. - 5. Costs of the application - 6. Any other relief

The grant of judicial review remedies remains discretionary, and it does not automatically follow that if there are grounds of review to question any decision or action or omission, then the court should issue any remedies available. The court may not grant any such remedies even where the applicant may have a strong case on the merits, so the courts would weigh various factors to determine whether they should lie in any particular case. See *R vs Aston University Senate ex p Roffey [1969] 2 QB 558, R vs Secretary of State for Health ex p Furneaux [1994] 2 All ER 652*

I therefore order as here under.

- 1. A declaratory order doth issue, that the actions and decision of the respondent that resulted in cancellation of the Applicant's certificate of title in respect of land comprised in Singo Block 85, Plot 92 land at Sebobo Mityana district without according the applicant a fair hearing was illegal, irrational and procedurally improper. - 2. An order of certiorari doth issue quashing the impugned decision of the Respondent as contained in the Respondent's resolution/report for land comprised in Singo Block 85, Plots 91,92, 93,94,95,96 and 97 (Formerly Plot 6) Land at Sebobo Mityana District dated the 4th day of September, 2024.

- 3. I grant A permanent injunction restraining the respondent from any further alteration and or cancellation of the applicant's certificate of title unless done within the law. - 4. This application is granted with costs to the applicant.

I so order

…………………………………………………

SIMON PETER M. KINOBE

JUDGE

DATE: …… th May, 2025 7th