[2024] UGHC 922

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS CAUSE N. 17 OF 2023**

## MOHAMED KHALIL DAGHER :::::::::::::::::::::::::::::::::::: **VERSUS**

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

#### BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

#### **RULING**

- $1.$ This application was brought by Notice of Motion under the provisions of Article 42 of the Constitution of the Republic of Uganda, 1995, sections 33 and 37 of the Judicature Act, Cap. 13, section 98 of the Civil Procedure Act, Cap. 71 and Rules 3 (1) (a) & 6 (1) of the Judicature (Judicial Review) Rules, No. 11 of 2009, seeking for the following orders that: - (a) an Order of certiorari quashing the decision of the Commissioner Land Registration vacating the Applicant's caveats on the land situated in Mukono District, without authority or knowledge of the Applicant; - (b) a declaration that the Respondent's acts of vacating the Applicant's caveats on the suit land was illegal, irregular and improper; - (c) a declaration that the decision leading to the removal of the Applicant's caveats was irrational, irregular and illegal;

$\mathbf{1}$

- (d) a permanent injunction restraining the Respondent or any other party from vacating the Applicant's caveats in the absence of a valid court order or due process of the law; - (e) a declaration that all the transactions that were entered into by any party and registered by the Respondent or any other party on the suit land after lodging the caveats are illegal; - (f) an order of prohibition doth issue restraining the Respondent and any other person from removing or vacating the Applicant's caveats on the suit land without a due process of the law: - (g) an order of mandamus compelling the Respondent to restore the Applicant's caveats; - (h) a declaration that any sale or transfer that happened after the Applicant had lodged the caveats on the suit land are illegal, unlawful and void: - (i) a declaration that the Respondent exercised its quasi-judicial powers illegally and irregularly; and - (i) costs of this application be provided for. - The grounds upon which this application is based are briefly $2.$ contained in the Notice of Motion and set out in detail in the affidavit of Mwesiga Apollo, the holder of power of attorney for the Applicant sworn on 12^th May, 2023. The grounds are as follows that: - (a) the Applicant is a shareholder and a Director in both Emirates Africa Link Real Estates Limited and Aberdeen Real Estates Limited who are the registered proprietors of several plots of land located in Mukono: - (b) the two companies have leasehold interest on the plots of land;

- (c) the Applicant on 28^th day of September, 2022, lodged and registered an encumbrance or caveat on the certificates of title of all the company land to wit: - i. Kyaggwe LRV 4423 Folio2 Plot 23, Block 416 land at Gobero & Kabanga; - ii. Kyaggwe LRV 4124 Folio 25 Plot 25 and Plot 22, Block 416 land at Gobero & Kabanga; - Kyaggwe LRV 4409 Folio 23 Plot 33, Block 124 land at Ndugu; iii. - Kyaggwe LRV 4410 Folio 2 Plot 22, Block 125 Land At iv. Mugomba Kyaggwe LRV 05 Folio 21 Plot 1, Block 389 Land at Mukono Town Council; - Kyaggwe LRV 4410 Folio1 Plot 8, Block 391 land at Sekinobe; V. - vi. Kyaggwe LRV 4109 Folio 24 Plots 31 & 35 Block 125 land at Mugumba; - Kyaggwe LRV 1425 Folio 1 Plot 20, Block 416 land at Gobero vii. & Kabanga; - Kyaggwe LRV 4409 Folio 20 Plot 22, Block 389 land at viii. Kankwale & Banga;

- Kyaggwe LRV 1109 Folio 21 Plot 26, Block 125 land at ix. Mugomba; - Kyaggwe LRV 4291 Folio 23 Plot 1, Block 417 land at Taba; X. - Kyaggwe LRV 4291 Folio 25 Plot 13, Block 417 land at Taba; xi. - Kyaggwe LRV 4410 Folio 3 Plot 12, Block 389 land at xii. Nantabule: - Kyaggwe LRV 3911 Folio 25 Plots 19, 20, 21 & 22, Block 388 xiii. land at Busoke: - Kyagwe LRV 4292 Folio 2 Plot 10, Block 418 land at Buunga xiv. & Makolo; - Kyaggwe LRV 4292 Folio 3 Plot 33, Block 418 land at XV. Lukindwa; - Kyaggwe LRV 4292 Folio 2 Plot 23, Block 416 land at Gobero xvi. & Kabanga; - xvii. Kvaggwe LRV 4292 Folio 5 Plot 14, Block 418 land at Buunga & Makolo; - xviii. Kyaggwe LRV 4292 Folio 7 Plot 9, Block 418 land at Buunga & Makolo:

$\overline{4}$

- Kyaggwe LRV 4292 Folio 8 Plot 12, Block 418 land at Buunga $xix$ . & Makolo; - Kyaggwe LRV 4292 Folio 10 Plot 25, Block 419 land at Penja; XX. - Kyaggwe LRV 1291 Folio 24 Plot 9, Block 417 land at Taba; $\overline{XX}$ i. - xxii. Kyaggwe LRV 1871 Folio 9 Plots 3, 4, 5, 6, 7 and 8, Block 390 land at Kasinsi Estate: - xxiii. Kyagwe LRV 4292 Folio 11 Plot 36, Block 418 land at Lukindwa: - xxiv. Kyagwe LRV 4292 Folio 9 Plot 29, Block 419 land at Mpenja; - xxv. Kyagwe LRV 4409 Folio 22 Plot 12, Block 124 land at Ndundu; - xxvi. Kyagwe LRV 4109 Folio 25 Plot 33, Block 125 land at Mugomba; - xxvii. Kyagwe LRV 4292 Folio 1 Plot 20, Block 418 land at Bunga & Makolo; and - xxviii. Kyagwe LRV 4292 Folio 6 Plot 16, Block 418 Land at Bunga & Makolo.

- (d) the Respondent on 9^th March, 2023, without due notice given to the Applicant and without the Applicant's knowledge and consent vacated the Applicant's caveats on the company plots; - (e) on 19^th April 2023, the Deponent conducted searches on the above properties to establish whether the caveats he lodged are still on the suit lands and if anything had changed on the company property; - (f) the deponent was surprised to find out that all his caveats were vacated by the Respondent without his knowledge; - (g) on 26^th April the deponent inquired from the Respondent's Registry at Mukono Zonal Office and at the head office along Parliamentary Avenue about the reasons why his caveats were vacated without any notice issued to him and contrary to procedure stipulated in the law and the principles of natural justice; - (h) after the Deponent failed to get any solution from the Respondent's relevant offices, he lodged a complaint to the Respondent about the matter: - (i) the Respondent adamantly refused to restore the Applicant's caveats and told the deponent to refer the matter to this honourable court since he felt that his decision was just and fair; - (j) the decision and the procedure followed to remove the Applicant's caveats was unjust, illegal and improper since the deponent was

not given any opportunity to explain why he lodged the caveats on the suit land:

- (k) the deponent was not given notice for the application to remove the caveats, therefore denying him a chance to be heard; - (I) due procedure provided under the law for removal of caveats was not followed: - (m) the Respondent denied the deponent any audience and remedy when he appealed through a formal complaint to the Commissioner to reverse his arbitrary decision: - (n) the purported court order and decree which were purportedly used to vacate the caveats did not in any way concern the Applicant and his rights in the land and therefore the decision was arbitrary; - (o) the actions of the Respondent are illegal, violates the right to property, the right to fair hearing and all known principles of natural justice; - (p) it is just, fair and equitable that this application is granted, the decision of the Respondent set aside, and the Applicant's caveats restored until there is a court decision to the contrary: - $(q)$ the deponent further prayed that in the event that any transactions have been registered because of the illegal removal of the Applicant's caveats, this court orders that any entries be reversed; and

- (r) it is just and fair that this application is heard and granted by this honourable court. - In reply, the Respondent filed an affidavit deponed by Moses $3.$ Ssekitto, the Registrar of Titles in the Ministry of Lands, Housing and Urban Development on the following grounds that: - (a) this application is misconceived, premature and abuse of court process and that it doesn't demonstrate any sufficient grounds that warrant the grant of the orders sought and should be dismissed with costs: - (b) the Respondent acted on the basis of a court order against the shareholders and directors in reference to the registered proprietor and as such was not an administrative decision subject to judicial review as the Applicant alleges; - (c) the Applicant had remedies available to him which he chose not to exercise before coming to court with an application of this nature; - (d) this application is bad in law and an abuse of court process because judicial review is a remedy of last resort; - (e) the Applicant does not deserve the exercise of the court's discretion on the account of his abuse of court process and the facts surrounding this case; and - (f) this application lacks merit and ought to be dismissed with costs to the Respondent. - In rejoinder, Mr. Mwesiga Apollo deponed on the Applicant's $4.$ behalf that the Applicant demonstrated sufficient grounds in the application for grant of the orders sought. That the court order and decree that the Respondent relied on to vacate the caveats did not concern the Applicant's rights in the land and therefore the decision was arbitrary. That in specific, the court orders vide Misc. Application No. 1768 of 2021 and Civil Suit No. 695 of 2017, granted the AL Shafi Investment Group LLC (Applicant/Plaintiff) permission to bid and or purchase shares in Emirates Africa Link Estate Limited, Aberdeen Real Estate Limited and in Magma International Limited, and a sum of AED 149.302.152. - Mr Apollo Mwesiga stated that the Respondent instead removed $5.$ the Applicant's caveats and transferred the land titles in the name of Al Shafi Investments Group LILC, without court order to that effect or any colour of right. That since there existed no court order directing the Registrar to remove the Applicant's caveats and transfer the land title, as such the actions of the Commissioner Land Registration are unlawful and an abuse of his or her discretion in a public office, illegal, unreasonable and irregular. - Mr. Mwesiga further deponed in rejoinder that he exploited all the 6. other avenues from the Respondent's relevant office but the Respondent's officers adamantly denied him any audience and

refused to restore the caveats. That the actions of the Respondent are illegal, violates the right to property, the right to fair hearing and all known principles of natural justice.

- During the hearing of this application, the Applicant was $7.$ represented by Counsel Harold Turigye and Counsel Ahimbisibwe Hillary from M/s CR Amanya Advocates & Solicitors. Counsel Twagiramungu Joshua from the Office of the Commissioner Land Registration appeared for the Respondent. Only the Applicant's counsel filed written submissions as considered hereunder. - The Applicant's counsel reiterated the averments in the 8. supporting affidavit and further submitted that judicial review is concerned not with the decision itself but with the decision-making process. That it involves an assessment of the manner in which a decision is made. That the acts and omissions of the Respondent were ultra vires, illegal improper and violated the rules of natural justice. That a public authority will be found to have acted unlawfully if it has made a decision or done something without the legal power to do so (unlawful on the grounds of illegality); or acted so unreasonable that no reasonable decision maker could have come to the same decision or done the same thing (unlawful on the grounds of unreasonableness or irrationality) or without observing the rules of natural justice on grounds of procedural impropriety or unfairness. Counsel relied on the case of ACP Bakaleke Siraji v. Attorney General, HCMC No. 212 of 2018.

$\overline{9}$ The Applicant's counsel submitted that according to the facts at hand, the rules of natural justice were violated by the Respondent when he removed the Applicant's caveats without any notice or hearing from the caveator or giving him any reasons. That this matter is amendable to judicial review since the Respondent is a public body with quasi-judicial powers, and it violated the rules of natural justice without giving any hearing to the Applicant before making an administrative decision.

The Applicant's counsel further argued that the Applicant $10.$ exhausted the other non-judicial remedies by engaging the Respondent for explanation why his caveats were vacated without his knowledge. That the Respondent instead neglected the complaint and directed the Applicant to come to this honourable court.

Counsel stated that the Applicant has proved that the $11.$ Respondent did not follow the law and procedure while reaching the decision to cancel or remove the Applicant's caveats. That the law mandates the Respondent to issue notice, give the interested party a hearing following the rules of natural justice and giving reasons for reaching the decision made. That failure to adhere to procedure and rules of natural justice was therefore, illegal, improper, and irregular. The Applicant's counsel prayed for an order of certiorari quashing the Respondent's decision.

Counsel added that the Applicant has proved that the $12.$ Respondent reached its decision irregularly and improperly without

following the procedure under section 91 of the Land Act by not granting the Applicant a fair hearing hence reaching an unreasonable decision. That the Respondent therefore acted ultra vires in reaching the decision to cancel the Applicant's caveats on the suit lands. The Applicant's counsel further prayed for a prerogative order of certiorari to be issued against the Respondent, quashing and setting aside the decision of the Respondent cancelling the Applicant's caveats on the said lands. It is also prayed for the Applicant that court issues an order of prohibition restraining the Respondent and its agents from implementing its decision of removing the encumbrances on the suit properties. That it is anticipated that the Respondent and its agents would remove the recently lodged caveats or conclude further transactions relating to the land which would further prejudice the Applicant's interests.

$13.$ The Applicant's counsel concluded that having established that the decision to cancel the Applicant's caveats on the titles was ultra vires and reached at improperly and irregularly, an order of mandamus be issued ordering the Respondent to reinstate the Applicant's caveats on the certificates of titles. That a permanent injunction further be issued restraining the Respondent and its agents from implementing any of the Respondent's orders in so far as they affect the Applicant. Counsel prayed that this application be allowed with all the reliefs sought granted together with the costs of this application.

## Issue

Whether the application raises sufficient grounds for judicial review.

## **Court's consideration**

$14$ Judicial review is 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 engaged in the performance of public acts and duties. Those functions, duties or acts may affect the rights or liberties of the citizens. Judicial review is a matter within the ambit of Administrative Law. It is different from the ordinary review of the court of its own decisions, revision or appeal in the sense that in the case of ordinary review, revision or appeal, the court's concerns are whether the decisions are right or wrong based on the laws and facts whereas for the remedy of judicial review, as provided in the orders of mandamus, certiorari and prohibition, the court is not hearing an appeal from the decision itself but a review of the manner in which the decision was made.

Section 36 of the Judicature Act, Cap. 16, empowers the High 15. Court to grant prerogative writs in an application for judicial review. It stipulates as follows:

> "(1) The High Court may upon application for judicial review, grant any one or more of the following reliefs in a civil or criminal matter-

> > (a) an order of mandamus requiring any act to be done;

- $(b)$ an order of prohibition, prohibiting any proceedings or matter; - (c) an order of certiorari; removing any proceedings or matter into the High Court; - (d) an injunction to restrain a person from acting in $\frac{1}{2}$ any office in which he or she is not entitled to act; - (e) a declaration or injunction not being an injunction referred to in paragraph (d) of this subsection". - (2) The court may upon any application for judicial review, in addition to or in lieu of any of the reliefs specified in subsection (1) award damages."

These grounds of judicial review are concerned either with the processes by which a decision was made or the scope of the power of the decision-maker. The remedies are discretionary in nature and they are considered on a case by case basis.

16. In Unzi Godfrey Licho v. Moyo District Local Government & Anor, Misc Cause No. 0097 of 2016, Justice Stephen Mubiru defined judicial review as follows:

> "Judicial review of administrative action is a procedure by which a person who has been affected by a particular administrative decision, action or failure to act of a public authority, may make an application to the High Court, which may provide a remedy if it decides that the authority has acted unlawfully."


$17$ Rule 7A of the Judicature (Judicial Review) (Amendment) Rules, No. 32 of 2019, provides for factors to be considered by court in determining applications for judicial review. It states that:

> "(1) The court shall, in considering an application for judicial review, satisfy itself of the following-

(a) That the application is amenable for judicial review;

(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."

Judicial review involves an assessment of the manner in which a 18. decision is made by an administrative body. The purpose of determining such an application is to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. The court while considering such an application must ascertain whether the principles of natural justice which entail a right to a fair hearing and rule against bias have been applied by the administrative body in exercising its quasi-judicial powers.

The procedure followed by the administrative body in exercising $19$ such powers should be seen to be efficient, lawful, reasonable and procedurally fair. The decision making body should also not act ultra vires in that it should have the mandate and power to make the decision taken. A public body will be found to have acted unlawfully if it has made a decision on the ground of illegality - without the legal power to do so or on ground of unreasonableness or irrationality that

is to say, so unreasonable that no reasonable decision-maker could have come to the same decision or on ground of procedural impropriety or unfairness without observing the rules of natural justice.

20. The above grounds for judicial review were clearly explained by Lord Diplock in the case of Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 375 at pages 410 to 411. where he observed as follows:

> "By "illegality" as a ground for judicial review, I mean that the decision maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable. By "irrationality", I mean what can by now be succinctly referred to as 'Wednesbury' unreasonableness' (Associated Provincial Picture Houses Ltd v. Wednesbury Corporation [1948] 1K. B. 223). It applies to a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it. "Irrationality" by now can stand upon its own feet as an accepted ground on which a decision may be attacked by judicial review. I have described the third head as "procedural impropriety" rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because susceptibility to judicial review under this head covers also failure

 by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice."

- $21.$ Therefore, the decisions of the Commissioner Land Registration as a public official are subject to judicial review on any of the grounds stated above. This court has jurisdiction to allow an application for judicial review when appropriately brought against the decisions of the Commissioner Land Registration. This is because in exercising his or her powers stipulated under various laws, the Commissioner is performing an administrative act which must be exercised in accordance with the legal limits of the exercise of such powers. - $22.$ In the instant case, while the Applicant challenges the legality of the decision made by Commissioner Land Registration to vacate caveats lodged by him for land registered under lease for companies in which he is one of the shareholders and directors. The Respondent in his affidavit in reply, relied on a court order issued by the High Court of Uganda - Execution Division in Miscellaneous Application No. 1768 of 2021, between Al Shafi Investment Group LLC and Ahmed Darwish Dagher Almarar passed on 29^th March, 2022. In that application, the court concluded and ordered thus:

"This Application coming up for final disposal this 29^th day of March 2022 before the Hon. Lady Justice Anna B. Mugenyi in the presence of Mr. Siraj Ali Counsel for the

Applicant and Mr. Nicholas Mwasame Counsel for the Respondent, it is hereby ordered as follows:

- 1. Permission is hereby granted to the Applicant to bid and or purchase the Respondent's shares in *Emirates Africa Link Estate Limited, Aberdeen* **Real Estate Limited and in Magma International** Limited. - 2. The process of bidding and or purchase of the said shares must be conducted in accordance with the relevant laws. - 3. Costs of the Application are awarded to the Applicant.

Given under my hand and seal of this Honourable Court this 7^th day of March 2023

## **DEPUTY REGISTRAR"**

A literal interpretation of the above order clearly shows that $23.$ nothing is indicated there directing the Respondent to vacate the caveats lodged on the various Blocks and Plots of land listed in the Applicant's supporting affidavit. Even the other related orders attached

to the Respondent's affidavit in reply do not mention anywhere for vacation of caveats in the said land.

$24.$ I am aware of the rule of exhaustion of existing remedies before resorting to applying for the remedies of judicial review. In my judgment, where the challenge is directed against the decision making process, judicial review option may be more preferable than the other existing remedies. In Salim Alibhai & Others v. Uganda Revenue Authority, HCMC No. 123 of 2020, Justice Ssekaana in his findings noted thus:

> "The rule of exhaustion of alternative remedies is not cast in stone and it applies with necessary modifications and circumstances of a particular case. When an alternative remedy is available, the court may refrain from exercising its jurisdiction, when such alternative adequate and efficacious legal remedy is available but to refrain from exercising its jurisdiction is different from saying it has no jurisdiction. Therefore, the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, inspite of availability of an alternative remedy, the High Court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies namely, (i) where the application seeks enforcement of any of the fundamental rights (ii) where there is failure of natural justice or (iii) the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged."

- $25.$ Section 140 (1) of the Registration of Titles Act provides thus: "Upon the receipt of such caveat the registrar shall notify the receipt to the person against whose application to be registered as proprietor or, as the case may be, to the proprietor against whose title to deal with the estate or interest the caveat has been lodged: and that applicant or proprietor or any person claiming under any transfer or other instrument signed by the proprietor may, if he or she thinks fit, summon the caveator to attend before the court to show cause why the caveat should not be removed; and the court may, upon proof that the caveator has been summoned, make such order in the premises either exparte or otherwise, and as to costs as it seems fit." - In the instant case, the Applicant is challenging the decision 26. making process taken by the Respondent on the ground that he was not given a fair hearing prior to the vacation of the caveats lodged with the Respondent. This averment was not controverted by the Respondent and indeed there is no proof annexed to the Respondent's affidavit in reply to show service of notice on the Applicant who lodged the caveats on behalf of the companies prior to the vacation of the caveats as required under section 140 (1) of the Registration of Titles Act. I find that the failure by the Respondent to prove effective service of notice to vacate the caveats on the Applicant is a ground of procedural impropriety. This means that the Respondent has failed to act with procedural fairness towards the Applicant whose company would as a result be affected by his decision. The Applicant was, in my view, not afforded the right to a fair hearing on behalf of his company.

Therefore, I hold that the Respondent's decision and acts of vacating the Applicant's caveats on the suit land without a valid court order to that effect was illegal, irregular and improper.

- 27. Pursuant to the foregoing analysis, the application is hereby allowed and I grant: - (a) an order of certiorari quashing the Respondent's decision of vacating caveats lodged by the Applicants on the various lands which are subject of this application listed in the Applicant's supporting affidavit; - (b) an order of mandamus compelling the Respondent to restore the Applicant's caveats as were before its decision of vacation: - (c) a permanent injunction order restraining the Respondent or any other party from vacating the Applicant's caveats without a valid court order or due process of the law; and - (d) costs of the application to the Applicant.

I so rule and order accordingly.<br>This ruling is delivered this ....................................

**FLORENCE NAKACHWA JUDGE.**

In the presence of:

- (1) Counsel Counsel Ahimbisibwe Hillary from M/s CR Amanya Advocates & Solicitors, for the Applicant; - (2) Mr. Simon Peter Ssewalya from the Office of the Commissioner Land Registration, for the Respondent; - (3) *Ms. Pauline Nakavuma, the Court Clerk.*