[2024] UGHC 258

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MBALE

# **MISCELLANEOUS CAUSE NO.2 OF 2024**

# JENSEN KEVEN JAY (suing through his

## Lawful attorney TUMUHEKI MOSES) :::::::::::::::::::::::::::::::::::

### **VERSUS**

### 1. THE COMMISSIONER LAND REGISTRATION

2. EVA BUKANZA :::::::::::::::::::::::::::::::::::

### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **RULING**

## 1. Introduction

2. This application was brought by way of Notice of Motion under the provisions of Sections 33 and 36 of the Judicature Act Cap 13, Section 98 Civil Procedure Act and Rules 3 (1) (a), 6 (1) & (2) of the Judicature (Judicial Review) Rules S. I 11 of 2009 for orders that a prerogative order of certiorari be granted to quash the decision of the 1^st Respondent cancelling the Applicant's certificate of title comprised in Leasehold Register Volume MBA 34 Folio 24, land at Sebei Cell, Mbale, order compelling the 1^st Respondent to reinstate and or restore the Applicant's certificate of title for land comprised in Leasehold Register Volume MBA 34 Folio 24, land at Sebei Cell, Mbale, general damages and costs of the application.

## 3. Background

4. The Applicant herein filed Civil Suit No.047 of 2023 against the Respondents for declaration that he is the lawful registered proprietor of the suit land and property, declaration that he is a bonafide purchaser for value without notice, permanent injunction, exemplary damages and costs of the suit where he immediately filed Miscellaneous Application No.237 of 2023 seeking for a

temporary injunction restraining the Respondents and or their agents from recalling, cancelling, or issuing any certificate of title to any third party and the trial Registrar issued an interim injunction on the 10^th August 2023 against the Respondents who defied the said orders despite being effectively served and made unlawful alterations in the status quo of the suit property and hence this application.

- 5. This application was supported by the Affidavit of **TUMUHEKI MOSES**, the lawful attorney of the Applicant which has been relied upon in the determination of this application and briefly states that - a. On 17^th May 2023 the Applicant purchased the suit land comprised Leasehold Register Volume MBA 34 Folio 24, land at Sebei Cell, Mbale from Bamukhwana Construction Company Uganda Limited; - b. At the time the Applicant purchased the suit land, it was duly registered in the name of Bamukhwana Construction Company Uganda Limited; - c. Upon purchasing the same and following due process, the cetificate of title was on 17^th May 2023 transferred from Bamukhwana Construction Company Uganda Limited to the Applicant's name; - d. Bamukhwana Construction Company Uganda Limited had been granted a lease for 20 years in 2017 and it is upon such basis that the Senior Land Management Officer of Mbale wrote to the Commissioner of land to prepare a certificate of title for the Applicant; - e. On $20^{th}$ July 2023 while citing a complaint, the 1^st Respondent issued summons addressed to the Applicant, Bamukhwana Constrution Company, Bukanza Eva and Kigaye Emmanuel slating a meeting for the $3^rd$ August 2023; - f. On 10^th August 2023, the Applicant secured a court order from this court vide Miscellaneous Application No.0237 of 2023 which inter alia stopped the 1^st Respondent from recalling, cancelling or transferring of ownership in Leasehold Register Volume MBA 34 Folio land at Sebei Cell, Mbale;

- g. The said court order was issued in the presence of the 2^nd Respondent and her Counsel and the same was served upon the 1^st Respondent on the $4^{th}$ October 2023; - h. The on $18^{th}$ September 2023, the $1^{st}$ Respondent issued a notice to effect changes in the register in respect of land comprised Leasehold Register Volume MBA 34 Folio 24, land at Sebei Cell, Mbale on ground that the 1st Respondent had received a complaint from the 2^nd Respondent; - i. On the 3^rd November 2023, the 1^st Respondent went ahead and made a decision purportedly cancelling the Applicant's certificate of title and made changes on the register on the 8^th November 2023; - j. It is evident from the ruling that the 1^st Respondent and the 2^nd Respondent attempted to craft the purported ruling and amendment order to circumvent the element of fraud which is the preserve of the High Court; - k. The cancellation of the certificate of title was done in disregard of the Court order that had restrained the 1st Respondent from cancelling the certificate of title pending the hearing of the main application and the suit filed by the Applicant in this case; - 1. The said illegalities are clear elements of allegations of fraud that requires litigation in this court; - m. The decision to cancel the certificate of title is illegal and ultra vires and can be challenged by way of judicial review; - n. The Applicant has been inconvenienced and psychologically tortured for which he seeks general damages. - 6. This application was opposed by the affidavit in support and supplementary affidavit of **HILARY NDUNGUTSE** the $2^nd$ Respondent's attorney which has been relied upon in determination of this application and briefly states that - a. There is no error on the face of the record as alleged by the Applicant in this application instead, there is apparent fraud since the said certificate of title was created on non-existent minutes;


- b. The investigation concluded by the Senior Land Management Officer, Mbale revealed and resolved that the new title comprised in LRV MBA 34, Folio 24 be cancelled because of gross irregularities; - c. The neighbors of the adjacent land had not signed on the Application forms, LC1 Chairman denied knowledge of the same which means that the Applicant did not come with clean hands; - d. The Applicant failure to participate in proceedings before the 1st Respondent cannot be visited on me; - e. The remedy sought by the Applicant in this application is only available where the rules of natural justice have not been accorded to the Applicant; - $f$ . The Applicant was duly served through is registered postal address as declared on the certificate of title and further, efforts were made to effect service on the Applicant through Monitor newspaper dated Wednesday, September 20^th 2023 at page 37 and also served the Applicant's known lawyers Nappa & Co. Advocates with the notice, stamped acknowledging receipt of court process and the Applicant was granted a right to be heard as the law provides; - g. That institution of Civil Suit No.47 of 2023 is an abuse of court process as the same seeks the same orders which can entirely be resolved in the said application; - h. The order issued by this court was a restraining order for 3 (three) days from the date of issue that lapsed and was not renewed. - i. The Applicant cleverly extracted a court order, postured as an open ended interim order, juxtaposing to be proceedings of 10^th August2023; - j. The Applicant did not participate in proceeding before the office of the commissioner Land Registration but opted to sneak in order to hold the Respondents in contempt; - k. The Applicant in his own volition has in the past abused his very order by demanding for rent; - 1. There is a legal process of investigation as to how the certificate of title for the disputed property was secured and subsequently transferred to the

Applicant, with the Commissioner for Land Registration, Uganda Police Vide SD 95/08/08/23- CPS Mbale, State House Anti-Corruption Unit;

- m. Because of that mischief, the 2nd Respondent petitioned numerous graft bodies, including but not limited to the Commissioner for Land Registration, for legal relief, as opposed to heading to summons, the Applicant has resorted to dash to court to defeat a due process of law brought against him; - n. The Commissioner Land Registration has the authority to entertain such complaints and gave the Applicant notice and consequently a hearing in accordance with the rules of natural justice and a decision made communicated to the Applicant.

## 7. Legal representation

8. Counsel Nappa Geoffrey represented the Applicant, Counsel Emmanuel Wamimbi represented the $2^{nd}$ Respondent while the $1^{st}$ Respondent was not represented.

## 9. Determination of court

- Court framed the following issues in determination of this application-10. - a. Whether this application is amenable for judicial review? - b. Whether the Applicant has exhausted all the available remedies in the public body or under the law? - c. Whether the Applicant is entitled to the remedies sought?

#### 11. Submissions

At the hearing of this application, court granted parties schedules to file 12. their respective submissions in respect of this application for which counsel for the Applicant and counsel for the $2^{nd}$ Respondent duly complied.

#### Submissions by counsel for the Applicant 13.

Counsel submitted that section 36 (1) of the Judicature Act Cap 13 14. provides for the power of the High Court to issue orders under judicial Review and that Rule 3(1) and (2) of the Judicature (Judicial Review) Rules SI No.11 of 2009 provides that a party may apply for an order of prohibition, certiorari, declaration and injunction by way of judicial review in appropriate cases and in particular Rule 3A of the judicature (Judicial Review) (Amendment) Rules S1 32 of 2019 provides that any person who has a direct or sufficient interest in a matter to apply for Judicial review.

- He added that in this instant case before court, the Applicant on 17^th May 15. 2023 purchased the suit land upon purchase and following due process where the certificate of title was on 17th May 2023 transferred from Bamukhwana Construction Company Uganda Limited to the Applicant's name but on the 3^rd November 2023, the 1^st Respondent went ahead and made a decision purportedly cancelling the Applicant's certificate of title and made changes on the Register on $8^{th}$ November 2023. - Counsel further stated that from the foregoing, the Applicant has the locus 16. to bring this application for judicial review since he has proved that he has direct or sufficient interest in the matter. - He further alluded that Rule 7A (1) of the Judicature (Judicial Review) 17. (Amendment) Rules 2019 set out the factors to be considered by the court when handling applications of this nature to include; that the application is amendable for judicial review, the aggrieved person has exhausted the existing remedies available within the public body or under the law and that the matter involves an administrative public body or official. He added that in the case of Arua Kubola Park Operators Ltd Vs Arua Municipal council, HCMC No.003 of 2016 it was held that it is a requirement in applications of this nature that the right sought to be protected is not of a personal and individual nature but a public one enjoyed by the public at large and it was his submission that the 1^st Respondent is a public body that acted in exercise of its public duty and hence that this application is amendable for judicial review. He also cited the case of Alex Nyika & Anor vs the Commissioner Land Registration Miscellaneous Cause No.0256 of 2022 where it was held that it is trite law that availability of other remedies not a bar to the granting of the relief of Judicial Review. - 18. He also submitted that Rule 7A (2) of the Judicature (Judicial Review) (Amendment) Rules, 2019 provides that the court shall grant an order for

judicial review where it is satisfied that the decision making body or officer did not follow due process in reaching the decision and as a result there was unfair and unjust treatment thus in order to succeed in application for judicial review, the decision or act complained must be tainted with illegality, irrationality and procedural impropriety.

He added that it is visible in the instant case that the decision by the $1^st$ 19. Respondent to cancel the Applicant's certificate of title was tainted with illegality and ultra-vires for reason that the Applicant was not privy to those errors and had good title to the same land being a bonafide purchaser for value without notice and no irregularity or errors has been attributed to the Applicant and he is protected under Section 59 of the Registration of titles Act as the registered proprietor except that his title could only be impeached on grounds of fraud and yet the ground based on by the 1^st Respondent was fraud which he had no powers to deal with.

#### Submissions by counsel for the $2^{nd}$ Respondent 20.

- Counsel submitted that on 10^th August, 2023, the Registrar of this court 21. issued an interim administrative order under Order 50 Rule 3A of the Civil Procedure Rules which strictly lapses after three days from the date of issue but the Applicant took it to be open ended and upon it's expiry, the $1^{st}$ Respondent proceeded and summoned all the concerned parties including the Applicant who was duly served though he declined to attend the public meeting organized by the $1^st$ respondent to air out the said irregularities in the said certificate of title which is in issue and it is upon which the 1^st Respondent by the powers vested in his office pronounced himself and cancelled the impugned certificate of title for the suit land by virtue of Section 91 of the Land Act. - He cited the case of **Cecil David Hugh v- Attorney General Misc.** 22. Application No.266 of 2023 where court emphasized that the overriding purpose of judicial review is to ensure that the individual concerned receives fair treatment and if that lawful authority is not abused by unfair treatment, it is not for the court to take over the authority and the person entrusted with that authority by subsisting its own. The remedy of judicial review is discretionary in nature and can only be granted on three grounds namely; illegality, irrationality and procedural impropriety.

- 23. He also stated that section 36 (1) of the Judicature Act Cap 13, provides for the power of the High Court to issue orders under judicial review. Certiorari is a prerogative writ issued to quash a decision which is ultra-vies or vitiated by an error on the face of the record which is designed to control inferior courts, tribunals, administrative and statutory authorities and no order of certiorari can issue unless it is premised on a decision of a body that was mandated to determine a dispute to prevent the access of or the outright abuse of power by public authorities since its primary object is to make the machinery of government operate properly in accordance with the law. - 24. He alluded that the said orders sought cannot be granted since the order the Applicant claims was abused by the 1^st Respondent was clearly extracted and postured as an open ended one while not and the impugned certificate of title was created on non-existent minutes for which the 1^st Respondent had authority to cancel and the Applicant was accorded a chance to be heard before the decision was taken by the 1^st Respondent to cancel the Applicant's title.

## 25. **Analysis of court**

Issues for determination are-26.

- (a) Whether the application is amendable for Judicial Review? - (b) Whether the application discloses any grounds for Judicial Review? - (c) Whether the Applicant is entitled to the reliefs sough? - 27. Rule 7A (1) of the Judicature (Judicial Review) (Amendment) Rules, 2019 provides that-

"The court shall, in considering an application for judicial review, satisfy itself of the following-

a. that the application is amenable for judicial review;

$\Lambda$

- b. that the aggrieved person has exhausted the existing *remedies available within the public body or under the law;* and - c. that the matter involves an administrative public body or official.

### 28. Issue 1: Whether this application is amenable for judicial review?

Judicial review according to the Black's Law Dictionary is "court's power" 29. to review actions of other branches or levels of government, especially the *court's power to invalidate legislative and executive actions of government and public bodies which are illegal).*

30. Judicial review is also defined under Rule 3 of Judicature (Judicial Review) (Amendment) Rules, 2019 to mean-

> "the process by which the High Court exercises its supervisory" jurisdiction over the proceedings and decisions of subordinate courts, tribunals and other bodies or persons who carry out quasi-judicial *functions or who are charged with the performance of public acts and* duties.

- Counsel for the Applicant submitted that for a matter to be amendable for 31. judicial review it must involve a public body in a public law matter meaning that the Applicant for judicial review has to meet or satisfy two requirements which are- (i) the body under challenge must be a public body whose activities can be controlled by judicial review. (ii) the subject of the challenge must involve claims based on public law principles and not the enforcement of private law right. He cited Arua Kubola Park Operators Ltd V. Arua Municipal Council HCMC. No.003 of 2016 - It is a settled position of law that the office of the Commissioner Land 32. Registration is a public office charged with administration of land in Uganda which makes this application amenable for judicial review.

# 33. Whether the Application discloses any grounds for Judicial Review?

Rule 7A (2) of the Judicature (Judicial Review) (Amendment) Rules 2019 34. provides that-

"The court shall grant an order for judicial review where it is satisfied that the decision making body or official did not follow due process in reaching a decision and that, as a result, there was unfair and unjust treatment"

- In Council of Civil Service Union V. Minister for the Civil Service 35. [1985] AC 374, Lord Diplock categorized the grounds of Judicial Review under three heads and that is illegality, Procedural Impropriety and irrationality. - The above principles are going to guide me in the resolution of this 36. application. - 37. However, before I delve into the grounds of this application, I would like to note that in applications of this nature, court is concerned among others with the procedure and legality of the decision taken.

# 38. Issue No.1: Whether the Commissioner Land Registration's action to cancel the Applicant's title was irregular or illegal?

- 39. In considering this ground court looks at whether the administrative body exceeded the power conferred in it by the statutes or failed to take relevant factors in to consideration. - Section 91 of the Land Act Cap 227 provides that-40.

"Subject to the Registration of Titles Act, the registrar 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, the issue of fresh certificates of title or otherwise.

- (2) The registrar shall, where a certificate of title or instrument— - (a) is issued in error; - (*b*) *contains a mis-description of land or boundaries;* - (c) contains an entry or endorsement made in error; - (*d*) *contains an illegal endorsement;* - *(e) is illegally or wrongfully obtained; or*

(f) is illegally or wrongfully retained, call for the duplicate certificate of title or instrument for cancellation, or correction or *delivery to the proper party.*

(4) The registrar may— (a) correct errors in the Register Book or in entries made in it; (b) correct errors in duplicate certificates or instruments; and (c) supply entries omitted under this Act.

(5) *The registrar may make amendments consequent upon* alterations in names or boundaries but in the correction of any such error or making of any such amendment shall not erase or render illegible the original words."

- 41. I have also looked at annexure H to the affidavit in support which is the order that cancelled the Applicant's certificate of title and noted that it was passed under section 91 of the Land Act but not on grounds of fraud as alleged by the Applicant. - I therefore find that the 1^st Respondent acted within the powers granted to 42. it when it cancelled the Applicant's certificate of title. - 43. **Irrationality** - Associated Provincial Picture Houses Ltd V. Wednesday $44.$ In **Corporation [1947] 2 ALLER 680**, unreasonableness of the decision as per Lord Greene is that, that no reasonable body could have come to. It is not what the court considers reasonable. Court will only interfere where there is no rational basis for the decision. - In the instant application it is apparent that the 1^st Respondent cancelled 45. the Applicant's title because it was issued in error. - The Applicant allege that at the point of cancellation of his certificate of 46. title, there was already a court order restraining the 1^st Respondent from alienation or transfer of ownership for land comprised in Leasehold Register Volume MBA 34 Folio 24 Land at Sebei Cell. Mbale Municipality. - 47. What is however pertinent to note in this matter is that Misc. Application No. 0237 of 2023 from which the alleged order arise, was heard ex-parte in

the absence of the 1st Respondent and the Applicant has not tendered evidence to prove that the same was served on the $1^st$ Respondent.

I have therefore not found any thing unreasonable that was exercised by 48. the 1^st Respondent in the exercise of its powers to cancel the Applicant's title.

#### 49. **Procedural Impropriety**

Section 91 (1) of the Land Act Cap 227 provides that-50.

> "Subject to Registration of Titles Act, the registrar 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, the issue of fresh certificates of title or otherwise."

- The above section only allows the Commissioner Land Registration to take 51. the necessary steps to correct the errors. - It should however be noted that although no specific procedure is provided 52. by the Act, what is key in every legal hearing is adherence to the principle of fair hearing. - According to the $2^{nd}$ Respondent's affidavit in reply, the Applicant was 53. informed about the hearing that resulted into cancellation of his certificate of title and this was done through his postal address and a newspaper advert using Daily Monitor Newspaper. The 2^nd Respondent further averred that the Applicant was further informed about the hearing through his lawyers of NAPPA & Co. Advocates. - It is therefore found that the 1^st Respondent properly followed the 54. principles of natural justice before cancellation of the Applicant's certificate of title. - In the case of Pastoli Vs. Kabale District Local Government Council 55. and others [1982] 3 ALLER 141 court noted that-

"in order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety."

56. Contrary to the above authority, the Applicant in the instant case has failed to prove that the 1^st Respondent's action of cancelling the Applicant's title was tainted with illegality, irrationality and procedural impropriety.

57. Issue No.3: Whether there are any remedies available to the parties

- 58. Having found that there was no illegality, irrationality and procedural impropriety committed by the 1^st Respondent, the Applicant is not entitled to any of the reliefs sought. - 59. This Application is accordingly dismissed. - The 1^st Applicant having not participated in this application, costs are 60. awarded to the $2^{nd}$ Respondent. - I so order. 61.

**LUBEGA FAR JUDGE** $3^rd/05/2024$