[2001] UGCA 37

# THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA **HOLDEN AT KAMPALA**

#### HON. JUSTICE G. M. OKELLO, JA. CORAM: $\overline{5}$ HON. JUSTICE A. E. MPAGI-BAHIGIENE, JA. HON. JUSTICE A. TWINOMUJUNI, JA.

#### CIVIL APPEAL NO. 57 OF 2000

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## INDERJIT SINGH::::::::::::::::::::::::::::::::::::

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#### <table> REGISTRAR OF TITLES::::::::::::::::::::::::::::::::::::

(*Appeal from the Ruling of the High Court (Ntabgoba. PJ)* dated 7 6 2000 in Misc. Application No. 1473 of 1999).

### JUDGMENT OF G. M. OKELLO, JA.

This is an appeal against the Ruling of the High Court, (Ntabgoba, P. J.) dated $7/6/2000$ in Misc. Application No. 1473 of 1999 whereby the 25 appellant's application was struck out with costs.

The facts which gave rise to this appeal are as follows. The appellant. Inderjit Singh, was the registered leasehold proprietor of a piece of land known as LRV 687 Folio 9 on a mailo plot of land described as Plot 347 30 Kibuga Block 29. Following the expulsion of the Asians from Uganda in 1972, the appellant's Lease title was by law expropriated and vested in Government in 1973. On $3/9/93$ , the title was returned to the appellant through a Certificate of Repossession. At the time of repossession, the proprietor of the mailo Title was Godfrey Kiseka, the administrator of the 35

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Estate of Serwada, the deceased proprietor. The said Kiseka evaded the appellant on several occasions when he wanted to pay rents. Eventuallv, the said Kiseka purportedly re-entered the land for alleged non-payment of rents. Subsequently, he sold the land to a Dr. Kataaha. In the meantime, an application was made on 2918197 for Kiseka's purported re-entry to be noted on the appellant's title. The application was accepted and the respondent noted the re-entry on the appellant's title without notifoing the appellant of the application for notation of the re-entry. Appellant's advocate discovered the anomally and brought it to the respondent's attention on 1715199. The respondent reacted by cancelling the notation of the re-entrv and on l4l7 199 issued to the appellant a Iiesh notice ofthe application for notation of the re-entry. This was intended to correct the earlier error. The appellant reacted to the notice on 318199 by giving to the respondent reasons why the re-entrv should not be noted on the appellant's title.

On 5/8/99, the respondent wrote back to the appellant stating that no convincing reasons were given why the re-entry should not be noted on the appellant's title and proceeded to note the re-entry on the appellant's title. This prompted the appellant to file in the High Court, Misc. Application No. 1473 of 1999 under sections 190 and 197 of the Registrar of Titles Act (RTA) for orders that the notation of the re-entry made on the appellant's title be reversed and the appellant's leasehold title be restored on the Register Book.

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At the hearing of the application, counsel for the respondent raised two preliminary objections. One which was upheld by the court was that the appellant did not comply with the provrsron of section 190 of the RTA in that he did not formally apply, upon payment of a prescribed fee, to the respondent for a statement of his reasons for noting the re-entry on the appellant's title. It was argued that this procedure was a necessary step befbre filing the application calling upon the respondent to substantiate his reasons for his action complained of. On this ground. the trial judge struck out the appellant's application. The striking out prompted this appeal.

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The sole ground ofappeal is that the learned trial judge ened in law when he struck out the appellant's application, made under section 190 ofthe RTA, on the ground that the application was incurably defectrve whereas not.

- l5 Mr. Oscar Kihiika, learned counsel for the appellant, criticised the learned trial ludge for holding that the appellant needed to formally apply to the respondent, upon payment of a prescribed fee, for a statement of his grounds under section 190 of the RTA, even though the appellant had informalll- received from the Registrar in writing, his reasons for noting the re-entry on the appellant's title. Counsel argued that since the appellant had already known the respondent's reasons for doing the act complained of'. it was not necessarv to make a formal application under section ¹⁹⁰ because that would be superfluous as the section rs permissive. He crted 2o Kakusa Investmenl and others Vs The Resistrar of Titles, Misc. .4 lic tionNo. 215 o 1994 Charles Stokes Ys The R istrar o - ri Tilles Misc..4 icatiott No. 5l ^o t993 in support of that proposition. He prayed that the appeal be allowed with costs and that his client's application be reinstated to be heard on merit.

Mr. Nyombi, learned counsel for the respondent, opposed the appeal and supported the trial .1udge's decision. He submitted that the respondent's informal letter of 5/8/99 could not constitute a statement of grounds for his action complained of as required under section 190 of the RTA. That was an administrative letter which did not contarn the respondent's reasons for stating that the appellant gave no convincing reasons why the re-entry should not be noted on his title It was his view that the procedure set out in section 190 was mandatory and that failure to comply with it was fatal to the application calling upon the Registrar to substantiate the reasons for his act or omrssion complained of. He called upon us to dismiss the appeal.

The trial judge dealt with the issue in his Ruling as fbllows:-

"l do not agree that because the applicant may happen to have known the grounds upon which the Chief Registrar noted the re-entry onto the Registrar of Titles, (sic) that excused the applicant from following the procedure so elaborately set forth in section 190 of the RTA---."

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Then he struck out the applicatron

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The issue that emerged from the above arguments is whether a formal application under section 190 of the RTA to the Registrar of Titles, accompanied bv the prescribed fee, to state the grounds for his decision complained of, was necessary where the complaint had already informallv received in writing from the Registrar of Titles. his reasons for the act or

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omission complained oi before calling upon him to substantiate and uphold those glounds before the High Court.

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It is necessary to reproduce here the text ofsection 190 ofthe RTA for ease of reference and appreciation ofthe issue at hand. It provides that:-

> "If upon the application of any owner or proprietor to have land brought under the operation of this Act, or to have any dealing registered or recorded, or to have any certificate or title or other document issued, or to have any act or dutv done or performed which by this Act is required to be done or performed by the Registrar, the Registrar refuses so to do, or if such owner of proprietor is dissatisfied with any decision of the Registrar upon his application, it shall be lawful for such owner or proprietor to require the Registrar to set forth in writing under his hand the grounds of his refusal or decision, and such owner or proprietor may, if he thinks fit, at his own cost summon the Registrar to appear before the High Court to substantiate and uphold such grounds---."

The Chief Resistrar of Titles, Misc. Application No. l7 of 1992, Kalanda Tlrere are three High Court decisions on this rnatter In Joseoh Baveeo Vs J. held that even if the Registrar had communicated the reasons for his decision to the registered proprietor or owner, there ought to be a formal application to the Registrar. accompanied by the prescribed fee. to state the grounds for his decision before an application calling upon him to

substantiate and uphold the ground could be valid. This view supports the trral .ludge's position in the instant case.

- ln Kakusa I nvestment & others (supra) however. Berko J as he then was, did not see the need for making a formal application to the Registrar to repeat what he has already stated in writrng in so many words. To his rnind to require the Registrar to repeat what is already known would be an exercise in futility. I agree. If the proprietor or owner has already been informed by the Registrar in writing the grounds for his decision in refusing to do or in doing an\_v- act he is enloined by the Act to do or not to do. there is no need to make a formal application to the Registrar to re-state those reasons. The requirement of formal application would be necessary in a situation where the Registrar has not given anv reason whv he so acted or refused to act. The provision of section I 90 of the RTA is clearly not lnandatory. There is therefore, no justification for making a formal application to the Registrar to repeat what he has alreadv stated in writing. That would be superfluous. ll) t5 - ln Charles Kassaia Stokes Vs The Resistrar of Titles, llisc. Aoolication 2l) No. 5l of 1993, Ongom (RIP) held the same view l find the latter two High Court decisions persuasive and Iendorse them

ln the instant case, the Registrar of Titles wrote to the applicant on ⁵¹⁸¹⁹⁹ and stated that:-

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"In view of the existence of court case, HCCS No. 793 of 1998, I will not reply the letter in detail lest such a reply

undermines the court's jurisdiction to determine the merits of the case.

Suffice it to state that you have not given convincing reasons why the lessor's re-entry (which preceded the filing of the said case) should not be noted, or why the previous noting thereof should not be regularised for that matter. I have, therefore, noted or regularised the noting of the lessor's re-entry. In this connection, please note that there is no lis pendens rule (pendency legal rule) in this country to prevent me from performing my statutory duties of registering land dealings in accordance with the provisions of the Registration of Titles Act."

r: ln my view. the respondent had by that letter given to the applicant, the reasons whv he noted the re-entry on to his Title. lt was because the appellant did not give any convincing reason why the notation should not be done. There was no need to formally apply to the Registrar under section 190 to repeat what he had already stated. Mr. Nyombi submitted l0 that the lefter was wanting in that it did not contain the reasons whv the respondent stated that the appellant did not give convincing reasons His reasons for concluding that the appellant did not give convincing reason are beside the point. The point is that his reason for noting the re-entry was that no convincing reason was given. Why he came to that conclusion are l5 the lustifications he will give to substantiate the reason in court.

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ln the result, Iwould allow the appeal, set aside the order of the High Court striking out the appellant's application. In its place I would substitute an order over-ruling the objection. I would order that the appellant's application be reinstated and heard on merit. I would grant the appellant costs of this appeal. Costs in the High Court are to abide the outcome of the application. As Mpagi-Bahigeine. JA and Twinomujuni JA. both agree. the appeal shall and is hereby allowed on the terms stated above.

Dated at Kampalathis . ....r'+C day of l0 / ²⁰⁰¹

\^ I ^GM oKELLO. ^b

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JUSTICE OF APPEAL.

## T'IIT ITEPT]BLIC OF T]GANDA

# IN THE COT]R.1'OF APPEAL OF UGANDA HOLDEN AT KAMPALA

# CORAM: HON. JUS'I'ICE G. M. OKELLO, J. A HON. JT]S'[ICE A. E. MPAGI-BAHIGEINE, J. A HON. JUS'TICE A. TWINOMUJUNI, J. A

## cr\_l'tr. APPEAL NO.57 O

# BE,TWEEN

INDERJIT SING APPELLANT

# AND

REGISTRAR OF TI'I'I-I:S RESPONDENT

(.\ppeal frorn the Ruling of rhc High Court (Ntabgoba P. J.) dated 7.6.2(X)l) in Misc. Application No.l473 of 1999)

### JUDGMENT OF A. 1'\VINOMU. ITJNI. J. A

I have had the advantagc ol'reading the Judgment in draft ofthe Hon. Justice G. M. Okello, J. A. I enrirc'ly'agree with it and I have nothing useful to add.

2 L Dated at Kampala this . day of ....2001. t

OF APPEAT,.

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# THE REPUBLIC OF UGANDA

# a IN THE COURT OF APPEAL OF UGANDA HOLDEN AT KAMPALA

# CORAM: HON. JUSTICE G. M. OKELLO, JA. HON. JUSTICE A. E. MPAGI. BAHIGEINE, JA HON. JUSTICE A. TWINOMUJUNI, JA

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# CIVIL APPEAL NO.57 OF 2OOO

## BETWEEN

## INDERJIT SINGH APPELLANT

### AND

### REGISTRAR OF TITLES RESPONDENT

(Appeal from the Ruling of the High Court (Ntabgoba P. J.) dded 7.6.2000 in Misc. Application No.1473 of 1999)

# JUDGMENT OF A. E. MPAGI-BAHIGEINE . IA.

I have read in draft the Judgement of Okello, JA. I entirely a\$ee that the appeal should succeed and that the application should be reinstated and heard on merit. It is a cardinal principle that as far as possible litigation on land rnatters should be resolved on merit.

Dated anl ^p\*y 3/&Tt day of ²⁰⁰^t J ICE MPAGI-BAHIG INE

JT]STICE OF APPEAL.