[2024] UGHCCD 89

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

#### [CIVIL DIVISION]

#### **MISCELLANEOUS CAUSE NO. 200 OF 2023**

FRANCIS DRAKE BEMBA WAMPAMBA =============== APPLICANT

#### VERSUS

#### 1. REGISTRAR OF TITLE

2. WILLIAM KYEKABIRA JJUNJU =============== RESPONDENTS.

# **BEFORE: HON. JUSTICE EMMANUEL BAGUMA**

#### **RULING**

This application is by notice of motion under rule 3(1) (a) and rule 6(2) of the Judicature (Judicial Review) Rules 2009 seeking for orders that; -

- a) A declaration that the actions and decisions of the 1st Respondent that resulted in the cancellation of the certificate of title registered in the name of the Applicant comprised in Mailo Register Busiro Plot 395 Block 1292 land at Sekiunga was illegal, unlawful, ultra vires and irregularly made in contravention of the law. - b) An order of certiorari be issued by this honourable court to quash the decision of the 1st Respondent cancelling the Applicant's certificate of title comprised and registered in Mailo Register Busiro Plot 395 Block 1292 land at Sekiunga. - c) An order of mandamus issue ordering the 1st Respondent to re-instaste and or restore the applicant's certificate of title comprised in Mailo Register Busiro Plot 395 Block 1292 land at Sekiunga and or - d) An injunction issue restraining the Respondents and their agents from interfering with the Applicant's ownership and enjoyment of Mailo Register Busiro Plot 395 Block 1292 land at Sekiunga.

The application is supported by the affidavit of **Maureen Kyoteka** whose details are on record but briefly states that; -

1. On 8th July 2004, the Applicant entered into a sale of land agreement where he purchased land at Busiro 395 Plot 304 land at Sekiunga and subsequently

got registered on the certificate of title on 19th March 2007 by the 1st Respondent.

- 2. On 16th January 2023, the 2nd Respondent lodged a complaint to the 1st Respondent that one Batume Joseph Kizito had caused false registration on Plot 304 by use of a forged sale agreement and fake instrument number. Batume then subdivided and transferred the land to other unscrupulous individuals. - 3. On 25th January 2023, the 1st Respondent issued a Notice of intention to effect changes in the Register to the proprietors of Plot, 1292, 1880 and 1881 which are only 3 plots out of 12 plots subdivided from Busiro 395 Plot 304. - 4. The 1st Respondent held the public hearing where I testified and my evidence was not controverted. - 5. My lawyers also attended the hearing and raised objections like the 1st Respondent lacked jurisdiction to handle the case of fraud, the 1st Respondent excluded other title holders and that of limitation to recover land after 12 years. - 6. On 27th July 2023, the 1st Respondent issued a notice of cancellation of Titles Mailo Register Busiro 395 Plot 1292 land at Sekiunga on grounds that the certificate was issued in error without impeaching other people's titles yet the fraud was not perpetuated by me.

In reply, the 1st Respondent opposed the application and an affidavit sworn by **Kafureeka Victor Jagaine** whose details are on record but briefly stated that; -

- 1. The application is not aminable for judicial review since the applicant has not exhausted other available remedies within the law. - 2. The 1 st respondent received a complaint as mandated under the law and issued a notice of intention to effect changes in the land register on 25th January 2023, conducted a public hearing on 21st February 2023 and properly served all the parties. - 3. Public hearings were conducted on 21st February 2023, 17th March 2023, 14th April 2023 and on 12th May 2023 and all the parties were ably represented. - 4. As per the record of proceedings at the public hearing, the applicant did not object to the 2nd Respondent's claim. - 5. Batume Joseph Kizito got erroneously registered on Busiro Block 395 Plot 304 using an instrument number that belonged to a totally different transaction altogether which is a lease hold registration dated 24th January

2003 for land in Kibuga Block 11 Plot 1401 volume 3097 folio 10 land at Kabowa.

- 6. The applicant is not a bonafide purchase for value as the illegalities in his predecessor's title affected his subsequent registration. - 7. At all times all the registered owners of the said plots were summoned and served with a notice and some plots for example 1293 did not show any matching records in the land records at all and the rest of the owners were summonsed contrary to what the applicant is saying. - 8. What the 1st Respondent did was within the law as it conducted a hearing and there were no illegalities, irregularities and procedural improprieties as stated by the applicant.

In reply by the 2nd Respondent, he opposed the application and in affidavit sworn by **William Kyekabira Jjunju** whose details are on record but briefly states that; -

- 1. I am a beneficiary in the estate of the Late S. Kakungulu the former owner and the registered proprietor of land comprised in Busiro Block 395 Plot 304 Land at Sekuinga, Wakiso District. - 2. The late S. Kakungulu died testate wherein he left a will sharing out all his land and I was given 5 acres of land at land at Busiro Block 395 but the titles of the late S. Kakungulu were nowhere to be seen as they had been stolen by unknown person. - 3. I started searching for the titles but I used to get interruptions from Joseph Batume who we later realized that he had illegally transferred the titles into our names and unlawfully transferred them into his names. - 4. When we discovered his fraud, we reported to CID Headquarters at Kibuli and also wrote several letters of complaint to him and Registrar of titles at Wakiso but because Batume Joseph was the senior staff at Wakiso, he always found a way of frustrating our complaints. - 5. On 16th January 2023, I instructed my lawyers of Katende Sempebwa and Co. Advocates who filed a complaint at the office of Commissioner Land Registration demanding for an investigation and also cancellation of titles which were illegally and unlawfully created out of Block 395 Plot 304 land at Sekiunga, Wakiso District. - 6. The transfer and further mutation of my certificate of title of land comprised in Block 395 Plot 304 were conducted without my consent or authorization and I never signed any transfer forms to one E. Wamala for a leasehold Register for land in Kamapala city.

- 7. Joseph Batume illegally and unlawfully subdivided this land into several plots of land, Plots like 1293, 1890, 1921, 188, 1921, 1922, 1923, 1924, 1925, 1927, 1928 and 1929. - 8. Upon my complaint the registrar conducted a public hearing where we were all summoned and we appeared with lawyers and after the hearing the Registrar rectified the register by cancelling the illegal titles. - 9. The applicant and other people who had obtained titles on the land have since filed suits at Land Division.

In rejoinder, the applicants reiterated his averments in chief.

## **Representation.**

Counsel Brian Kwame Emurwon represented the applicant while Counsel Sekito Moses represented the 1st Respondent and Emmanuel Muwonge represented the 2 nd Respondent.

At hearing both parties agreed to file written submissions whose details are on record.

The applicant in his written submissions raised two issues for court's determination to wit; -

- **1. Whether the decision of the 1st Respondent was tainted with illegality, irrationality and or procedural impropriety.** - **2. What remedies are available to the parties.**

## **Submissions by counsel for the applicant,**

**Issue No. 1**

## **Whether the decision of the 1st Respondent was tainted with illegality, irrationality and or procedural impropriety.**

Counsel submitted that the decision of the 1st Respondent was illegal as it related to deliberating on matter involving fraud which it had no jurisdiction to handle.

Counsel referred to **section 91 of the land Act** and the case of **Hilder Namusoke Vs Owella Home Investment Trust Ltd and Commissioner Land Registration SCCA No. 15 of 2017** where it was held that; -

## *"Section 91 of the land Act took away the 1ST Respondent's authority to cancel a certificate of title on the basis of fraud".*

Counsel submitted that the registrar of title's decision was irrational in a way that it cancelled the applicant's certificate of title of land he acquired, occupied and got registered 12 years ago.

Counsel submitted that this was in total disregard of section 91 of the land act which stated that its should be applied subject to the provisions of the Registration of Titles Act. He referred to the case of *Francis Kibuuka & Anor Vs Commissioner Land Registration & Anor HCMC No. 60 of 2019*.

Counsel referred to section 5 of the limitation Act which provides that; -

*"No [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) shall be brought by any person to recover any [land](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-land) after the expiration of twelve years from the date on which the right of [action](https://ulii.org/akn/ug/act/ord/1958/46/eng@2000-12-31#defn-term-action) accrued to him or her or, if it first accrued to some person through whom he or she claims, to that person".*

Counsel submitted that the decision of the 1 st Respondent was procedurally improper as it did not give notice to all the people with interest in the land affected. He contended that some of the people who had certificates of title on the land in issue were not summoned which amounted to procedural impropriety.

Counsel concluded by referring to section 91(8) of the land act which provides that; -

*"In the exercise of any powers under this section, the registrar*

*shall—*

*(a) give not less than twenty-one days' notice in the prescribed form to any party likely to be affected by any decision made under this section"*

**Issue No. 2**

## **What remedies are available to the parties**

Counsel submitted that this court be pleased to find that the 1st Respondent exercised powers conferred to it under section 91 of the Land Act illegally, irrationally and with procedural impropriety and issue orders to re-instate the applicant on his certificate of title.

### **Submissions by counsel for the Respondent.**

**Issue No. 1**

## **Whether the decision of the 1st Respondent was tainted with illegality, irrationality and or procedural impropriety.**

Counsel submitted that the 1st Respondent's decision was within the law when it proceeded to cancel the certificates of title under Busiro Block 395 Plot 1292 at Sekiunga.

Counsel cited **section 91 (1) of the Land Act**, which provides that; -

*"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 misdescription 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"*

Counsel contended that having found that there were errors in the registration of Block 359 Plot 304, the 1st Respondent acted within its mandate to rectify the register.

On the allegation of irrationality argued by the applicant, counsel replied that the 1st Respondent having conducted a public hearing and discovered that there were errors for example the use of a fake instrument number by the applicant's predecessor in title a one Joseph Batume in obtaining registration on Block 395 Plot 304, using an instrument number belonging to another property and person. This led to the subsequent registration to be illegal and erroneous which justified a cancellation of the titles therefrom.

On procedural impropriety, counsel submitted that upon getting a complaint from the 2nd Respondent, it issued notices to parties affected on their known addresses and the applicant was duly served. He attended the hearing and gave evidence.

### **Issue No. 2**

### **What remedies are available to the parties**

Counsel submitted that the applicants having failed to comply with section 91 (10) of the Land Act by failing to file an appeal to the High Court has no remedy under Judicial Review.

Counsel for the 1st Respondent on his own motion in his written submissions raised an issue to wit; -

### **Whether the applicant exhausted all the remedies under the law before instituting a suit for judicial review?**

This issue was not raised during trial or in the written submissions of counsel for the applicant. However, the applicant rejoined on the same. Court will briefly consider it.

Counsel for the 1 st Respondent submitted that the applicant has not exhausted existing remedies provided under the land Act and hence his application is not aminable by judicial review. Counsel referred to **section 91 (10) of the land Act** which provides that; -

## *"Any party aggrieved by a decision or action of the registrar under this section may appeal to the district land tribunal within sixty days after the decision was communicated to that party".*

He submitted that the remedy available to the applicant was to appeal the decision to High Court and not to apply for Judicial review.

In re joinder, counsel for the Applicant submitted that there are many applications for judicial review which were entertained by court because they rightfully challenge the decision making procedure of the 1 st Respondent rather than the content of the decision itself. The present application is similarly focused on the illegalities committed by the 1 st Respondent in the process of taking the decision.

Before I proceed to the issues raised in this application I found it prudent to first resolve this particular issue raised by the respondent exhaustion of local remedies

In the case of **John Ssentongo vs Commissioner Land Registration & Others, HCMC No. 13 of 2019 and Oyiki Sirino & Ors vs Kampala University HCMC No. 129 of 2022** it has been held that that the rule on exhaustion of existing remedies is a rule of discretion on the part of the court and the exercise of the discretion is stricter where the challenge by the aggrieved party is premised on merits of the decision rather than the decision making process. Where the challenge is directed against the decision making process, the judicial review option may be more preferable given the particular circumstances of a given case.

In the instant case, section 91(10) of the Land Act provides that a person aggrieved with the decision of the registrar of titles shall appeal the same to the district land tribunal. The Respondent himself in his submissions noted that the District Land Tribunals are not functional. The same were replaced by court.

It is not open to the Respondent, therefore, to argue that the Applicants did not exhaust any available or existing remedy. The position of the law is that the alternative remedy ought to be legally provided for and more effective than judicial Review. *See: Leads Insurance Company Ltd Vs Insurance Regulatory Authority, CACA No.237/15.*

This issue is resolved in the affirmative.

#### **Analysis of court.**

**Issue No. 1**

### **Whether the decision of the 1st Respondent was tainted with illegality, irrationality and or procedural impropriety.**

It is a settled principle of law that judicial review is concerned not with the merits of the decision made but with the decision making process. Essentially, judicial review involves an assessment of the manner in which a decision is made. It is not an appeal and the jurisdiction is exercised in a supervisory manner, not to vindicate rights as such, but to ensure that public powers are exercised in accordance with the basic standards of legality, fairness and rationality. The duty of the court, therefore, is to examine the circumstances under which the impugned decision or act was done so as to determine whether it was fair, rational and/or arrived at in accordance with the rules of natural justice. *See: Attorney General vs Yustus Tinasimiire & Others, Court of Appeal Civil Appeal No. 208 of 2013.*

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 a decision and that, as a result, there was unfair and unjust treatment".*

This reflects from the provision under Article 42 of the Constitution of the Republic of Uganda which provides that any "*person appearing before any administrative official or body has a right to be treated justly and fairly and shall have a right to apply to a court of law in respect of any administrative decision taken against him or her*".

In the instant case, the Applicant allegesthat the decision by 1 st Respondent to cancel his certificate of title comprised in Block 395 Plot 304 were made illegally, irrationally, and/or with procedural impropriety or unfairness. I will consider each ground under a separate head.

# **Illegality.**

The thrust of the argument by the Applicants' Counsel under this allegation is that the Registrar of title (1st Respondent) cancelled the applicant's certificate of title on the basis of fraud which he had no jurisdiction to do.

Section 91(1) of the Land Act provides that; -

*"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 misdescription 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".*

In the instant case, there is evidence that the cancellation was due to registration by error and not fraud. That a wrong instrument number for lease title was used to effect registration on Block 395 Plot 304 land at sekiunga. I find that this was a mere error done by the registrar and hence it was appropriate of the 1st Respondent to rectify the same.

I accordingly find no illegality committed by the 1st Respondent.

# **Irrationality**

Under judicial review, irrationality refers to arriving at 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 as per *Lord Diplock in Council for Civil Service Unions (supra).*

*In Dr. Lam –Larogo (supra)* the court held that in judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision making process. It is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.

In the case before court, the applicant contends that he has occupied and utilized the land for over 12 years uninterrupted and it was accordingly irrational for the 1st Respondent to proceed and cancel his title on a complaint by the 2nd Respondent.

It is my finding that having carried out investigations and heard parties and evidence during the public hearing. The registrar discovered that there was an error when a different or fake instrument number was used by the applicant's predecessor in title a one Joseph Batume to obtain registration and it was accordingly appropriate for the Registrar to proceed and cancel the titles in issue. This was a rational decision which would ordinarily flow from such findings as those established by the 1st Respondent during the public hearing.

I find no traces of irrationality in the decision of the 1st Respondent.

### **Procedural impropriety**

According to **Lord Diplock in Council of Civil Service Unions & Others vs. Minister for the Civil Service [1985] AC 374**, "procedural impropriety"has been defined to mean;-

*"the failure to observe basic rules of natural justice or failure to act with procedural fairness toward the person who will be affected by the decision." Procedural impropriety encompasses four basic concepts; namely (i) the need to comply with the adopted (and usually statutory) rules for the decision making process; (ii) the requirement of fair hearing; (iii) the requirement that the decision is made without an appearance of bias; (iv) the requirement to comply with any procedural legitimate expectations created by the decision maker. See: Dr. Lam – Lagoro James Vs. Muni University (HCMC No. 0007 of 2016).*

The case before this Court, Applicant submitted that the 1st Respondent while conducting a hearing selectively summoned the people with interest in land and failed to summons all the 12 people owning the 12 plots of land created from Block 395 Plot 304.

I am baffled by this allegation; I wonder why the applicant would be concerned about other people? Does he even have locus to represent them in court? Does he have powers of attorney to do so? How is it a concern to him? If the other owners are aggrieved, the temple of justice is open to them!

The applicant agreed that he was summoned for public hearing and was duly heard, he was represented by lawyers who raised several objections and he was in the end notified of the decision to cancel the title.

I fail to see how failure to call other people caused a procedural glitch in the hearing of the applicant.

I find no procedural impropriety involved in the decision making process leading to cancellation of the Applicant's certificate of title.

#### **Issue No. 2**

## **What remedies are available to the parties.**

The applicant having failed to prove that there are grounds for Judicial review, he is not entitled to the remedies sought.

### **Conclusion.**

This application fails with the following orders; -

- *1. The application is hereby dismissed.* - *2. Given the nature and circumstances of this case, I make no orders as to costs.*

Dated, signed sealed and delivered by email on this **21 st day of May 2024.**

Emmanuel Baguma

Judge