[2024] UGHCLD 131

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS CAUSE NO.029 OF 2024**

# **LUGOLOBI YAHAYA HUSSEIN :::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

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

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA RULING.**

#### *Introduction:*

- 1. This was an application by notice of motion brought under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Sections 167 and 177 of the Registration of titles Act and Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: - i) A vesting order be issued directing the commissioner land registration to transfer land comprised in MRV 1716 Folio 19 Plot 124 at Mpererwe. - ii) An order be issued directing the respondent to convert the certificate of title from MRV registration to block

registration and the same be indexed and be captured on the national land information system.

iii) Costs be provided for.

## *Background;*

- 2. That the applicant purchased the suit land from Hannington Musoke the registered proprietor in 2001 and was given a duplicate certificate of tile and duly signed transfer forms. The applicant took possession and developed the land. - 3. However, the applicant cannot transfer the land into his names due to lack of transfer forms that he misplaced and has failed to trace the same, hence this application.

# *Applicant's evidence;*

- 4. The application is supported by an affidavit deponed by the Applicant which briefly states as follows; - i) That sometime in 2001 I purchased property comprised in MRV 1716 Folio 19 plot 124 from Hannington Musoke - ii) That the purchase price was fully paid and I was given possession of the said land together with a duplicate certificate of title.

- iii) That I misplaced the transfer form, sales agreement which I have failed to trace. - iv) That I have since enjoyed quiet possession of the suit land without any disturbances. - v) That for the past 10 years I have tried to locate the vendor such that he signs for me new transfer forms however all efforts have failed in vain.

## *Respondent's evidence;*

- 5. The application is responded to by an affidavit in reply deponed by Mr. Ssekabira Moses from the office of the respondent which briefly states as follows; - i) That the land was registered under the mailo register volume MRV 1716 Folio 19 on the 20th march 1959. - ii) That the said land was then brought to the new register from MRV and is now registered in the names of Hannington Musoke Land comprised in Kyadondo Block 204 plot 124 without any encumbrances. - iii) That the applicant has not adduced any evidence to prove that he is the lawful owner of the suit land.

iv) That the applicant alleges to have misplaced the said documents but does not prove the misplacement of the said documents.

## *Representation;*

6. The applicant was represented by Kisalita Juma of Senkumba & Co. Advocates whereas the respondent was represented by Nakaziba Zurah from the office of the Commissioner Land Registration. Both parties filed their affidavits only without written submissions.

#### *Issues for determination;*

- *i) Whether the application is properly before this Court?* - *ii) Whether there are sufficient grounds to warrant the grant of a vesting order?*

#### *Resolution and determination of the issue;*

- i) Whether the application is properly before this Court? - 7. It is a duty of this court to determine the appropriateness of actions brought before it to avoid proceeding in futility. It is trite law that before an applicant invokes the inherent jurisdiction of

court, he or she must have applied first for a vesting order to the Commissioner Land Registration who for some reason must have declined to exercise his or her powers under Section 167 of the Registration of titles Act Cap 230. *(See; Mutyaba Vs Kayimbye &*

#### *Anor Misc. Cause No 40 of 2018)*

8. I draw reference to the provisions of Section 167 of the Registration of Titles Act Cap.230 under which the application is brought which provides as follows; *"If it is proved to the satisfaction of the registrar that land under this Act has been sold by the proprietor and the whole of the purchase money paid, and that the purchaser has or those claiming under the purchaser have entered and taken possession under the purchase, and that entry and possession have been acquiesced in by the vendor or his or her representatives, but that a transfer has never been executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found, the registrar may make a vesting order in the premises and may include in the order a direction for the payment of such an additional fee in respect of assurance of title as he or she*

*may think fit, and the registrar upon the payment of that additional fee, if any, shall effect the registration directed to be made by Section 166 in the case of the vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended by the same results as declared by section 166 in respect of the vesting orders mentioned there."*

- 9. I concur with the decision of my learned brother Hon. Justice Henry I. Kawesa in **Mutyaba Vs Kayimbye & Anor Misc. Cause No. 40 of 2018** where he observed that Section 167 of the Registration of Titles Act makes it a procedural prerequisite that applications of this nature must be made to the commissioner land Registration before coming to court. - 10. In the instant case, I have perused the affidavit of the applicant and it suggests nowhere that indeed an application was made to the Commissioner Land Registration before proceeding to this Court, the applicant states in his affidavit in support that he was advised by his lawyers that this honourable court would be the best avenue for the grant of a vesting order.

11. I stand by my position in the case **Rashid Ndawula Vs Tropical**

**Bank and Anor, Misc. Cause No.0332 of 2023** where I observed that it is in applications or actions of this nature that court is enjoined to exercise prudence and good judgment. It would not have been the intention of the framers of the constitution to divest the Commissioner Land Registration of his or her powers.

- 12. Giving room to parties to bring actions of such nature before utilizing the available avenues under the law would encourage noncompliance with the said section and thereby render the office of the Commissioner for land registration redundant as regards vesting orders. In times where courts are combating the problem of case backlog, I believe it is the proper approach. - 13. I need not proceed to determine the merits of this application. Having noted that the applicant ought to have first applied to the Commissioner Land Registration before coming to Court. - 14. In the premises, the instant application stands dismissed with no order as to costs.

**I SO ORDER.**

# **NALUZZE AISHA BATALA**

# **JUDGE**

**27 nd/05/2024**