Bayego v The Chief Registrar of Titles (Civil Appeal 20 of 1994) [1996] UGSC 27 (4 March 1996)

Full Case Text

## TEE REPUBLIC 0? UGANDA

## HT THE SUPREME COURT 07 UC-AEDA AT ISTGO

## CIVIL APPEAL 70. 20/94

#### CORAM: (MAMYIMDQ, DCJ, CDER, JSC, *&* TSEROOID, JSC)

### B2TJ2EM

| JOSEPH BAIEGO | | | | | | | | | | | | | AP?ELL-;OT | |---------------|-------------------------------|--|--|--|--|--|--|--|--|--|--|--|------------| | VERSUS | | | | | | | | | | | | | | | | TEE CHIEF REGISTRAR 07 TITLES | | | | | | | | | | | | RESPOiDEHT |

(Appeal from the decision of the H/c of Uganda at Kampala delivered on the 29th October, 1993 "by A.2. 1-Ipagi, J. in Misc. Cause I'o. 14/93) •

JUDGI.jETT 07 IIA1TYHTD0, DCJ.

This appeal arises from a Ruling in an application in the High Court. There the appellant had moved the court, by otice of Motion, for an order calling upon the respondent to uphold and substantiate the grounds for his refusal to rectify an alleged error appearing on the appellant's Certificate of Title in respect of land comprised in Block 12 plots Mos. 787 2nd 728 situate at Mengo in Kampala District. That land was previously known as Block 12 Plot Mos. 787 2nd 788. It was the appellant's case that during the conversion from acres to hactros, the area of Block 12 plot ITo. 422 which was 0.51 of an acre was erroneously stated to be 0.15 hectares instead of 0.12 hectares.

The respondent's position was that the alleged error did not exist as it had been corrected. He contended that the area on the ground tallies with the area on the Certificate of Title. To re-open the boundaries would involve touching on the adjecent plot of land •'

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belonging to one Linus Sebowa katamba who was bitterly opposed to such a move as there was a dispute between him and the appellant over the boundary. The respondent wanted court to resolve that dispute first. The trial Judge agreed and ordered that the matter be taken to trial. Hence this appeal. The appeal is brought on two grounds, namely:-

- << (1) The learned trial Judge failed to evaluate the evidence given on the affidavits and hence erred in law in ordering the issues to be settled by a trial instead of directing the respondent to correct the error complained of. - (2) By not giving any reason for the order she made, the decision of the judge constitute an error".

The parties, through their Counsel, filed mitten submission for and against the appeal. The appellant's main contention is that the trial judge should, on the documentary evidence, including affidavit evidence, have ordered the respondent to correct the earror complained of as the matter was technical and required no evidence to be taken. He therefore prayed that the matter be remitted to the trial Judge to make the order.

The respondent started his mitten submission by talcing up, for the first time, a point of law, namely, that the appeal is incompetent as there is no provision for an appeal as of right against an order made by a High Court Judge under section 1 JO of the Registration of Titles Act. He pointed out that such an order is not among the orders listed in section 77 0) of the Civil Procedure Act He argued that in the circumstances the respondent should have proceeded under Order 40 rule 1 (2) of the Civil procedure rules and sought leave to appeal from the High Court or this court. which are appellable as of right.

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In reply the respondent contended that the matter was properly before this court "because the order appealed against was made under sections 190 and 197 of the Registration of Titles Act. Section 1J7 of that Act provides for a right of appeal against orders made under the Act. He submitted that section 77 G) of the Civil Procedure Act and order 40 rule 1 (2) of the Civil Procedure Rules do not therefore apply to this case. I agree. Section 197 of the Registration of Titles Act provides that there shall be the same rights of appeal in respect of the proceedings under that Act as exist in respect of ordinary proceedings•

Section 68 of the Civil Procedure Act Provides that unless otherany part of decrees and from the orders of the High Court to the Supreme Court. Section 77 G) that Act restricts appeals as of right to specified orders made under the Act. I do not think that section **77 (1)** other Acts. can be called in aid to exclude orders made under wise expressly provided in that Act, an appeal shall lie from the decrees or

The Court of Appeal of Uganda dealt with the matter in Maloila International Ltd. Vs. Candinr.l Hsubuga and Another, Civil Appeal Ho. 4 of 1961 (unreported). The appeal arose from a matter under the Advocate1 s Act with regard to taxion of costs. It was submitted by the respondent as in this case, that the court of Appeal lacked jurisdiction in the matter as no appeal lay in that court and that if it did then it lay with leave of that court or the trial Court. there,

The Court of Appeal held, quite rightly in my view, that under section 68 of the Civil Procedure Act an appeal lies as of right from the orders of the High Court not made under the civil procedure Act to the court of Appeal. The Court noted that section 82 of the same Act

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provides that the provisions of part VII of the Act relating to appeals from original decrees shall apply to orders of the High Court made under section 68, And so in the instant case where the order was made on a matter brought to the High Court under the Registration of Titles Act and not under the Civil Procedure Act or Rules, that order is appealable as of right. It has not been specifically excluded by law. There is therefore no merit in the objection raised by the respondent on grounds of jurisdiction.

I will now consider the two grounds of appeal, together. The only evidence put to the trial Judge was by way of two affidavits together with annextures. to represent him in this matter. The other affidavit was sworn by Peter Idikidi Walubiri, senior Registrar of Titles in the Department of Land Registration. According to the affidavit of Bayego, the error was a simple one. The previous Chief Registrar of Titles, Grace Bonabaana, had agreed to correct it. She had caused the boundaries 1 to be resurveyed and was about to correct the error when she was replaced by the present Chief Registrar of Titles Lr. Tibisaasa who ''deliberately reinstated the error" on unreasonable grounds. One affidavit was deponed to by one Henry Ifuwanga Bayego, a son of the a^pii-Gant and holder of power of Attorney from the 'hdipl-ieant

> But according to llr. Halubiri, it was not clear why the area of Block 12 Plot Ho. 422 was originally recorded as 0\*51 of an acre on the *'■* Certificate of Title while on the ground it was measuring only O.37O65 acres. nevertheless upon conversion to the metric system the above disparity was corrected. There is therefore no error to be corrected or rectified. It was also his affidavit-evidence that one Linus Sebowa Katamba, a neighbour of the applicant and registered proprietor

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of the adjoining plot 1T0. 421 is opposed to any further demarcation of the land. In other words, there is a "boundary dispute between the applicant and Katamba.

Hr. Walubiri contends that Grace Bonabaana should not have caused the land in question to "be re surveyed as that is the domain of the commissioner of Land and Surveys, under the Surveys Act\* The Chief Registrar of Titles enters upon the Certificate of the Title particulars show on the place approved "by the commissioner of Land and Surveys, but not the other way round. Ee also contends that in view of the dispute between Katamba and the applicant over the boundary, the matter could best be resolved by court in a suit between those two persons.

The trial Judge seems to have accepted the respondent's contention that as the matter was complex and had a long history, it should be subjected to a full trial. She noted that Counsel for the appellant, to the respondent's submission. She ended the matter thus:- Mr. Kangwala, "did not seen to have very strong reservations"

> "1 have had a careful look at the record and I do consider it fit for this matter to be disposed of by way of a trial.

I so order"*.*

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It is clear from the affidavit of Hr. Walubiri that there are questions of fact that can best be determined on a full trial of the case. This matter was brought to the High Court under section 178 (a) 1 JO and 197 of the Registration of Titles Act and 048 r. 1 of the Civil procedure Rules. How under section 1\$O of the Registration of Titles Act the High Court may, if any question of fact is involved, direct an issue to be tried before making the necessary Orders. The trial Judge must have

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acted under this provision although she did not say so in her very short Ruling.

I cannot say that she excercised the discretion improperly. I would accordingly dismiss the appeal with costs to the Respondent. As oder, Br. and ise would also agree, it - is a godered. DATED at Kengo this ....................................

Thayinder s. T. HANNIGO

DEPUTY CHILF JUSTICE

4. 3.96. Ms. Masappli Vanyetensa Ms the term $pp.$ Mukaler Which $\mathcal{H}_{\mathcal{E}}$ erp. $|C|$ M. ha Clera. $\mathcal{L}$ $f_0$ $f_1$ $-$ P $\cdot$ $\overline{a}$ $+$ $\mathcal{O}$ $443.56$

## IN THE SUPREME COURT OF UGANDA

AT NENGO

MANYINDO, D. C. J., ODER, J. S. C., & TSEKOOKO, J. S. C.) (CORAM:

## CIVIL APPEAL NO. 20 OF 1994

#### BETWEEN

JOSEPH BAYEGO **\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*** $A$ $N$ $D$

THE CHIEF REGISTRAR OF **EXAMPLE 11: :::::::::::::::::::::::::::::::::** TITLES

> (Appeal from the decision of the (Mpged 11 cm die decision of und High Court of Uganda at Kampala (Mpagi-Bahigaine, J) dated 29.10.1993 in Misc. cause No. 14 of 1993)

## JUDGMENT OF ODER. J. S. C.

I have had the benefit of reading in draft, the Judgment of Manyindo, D. C. J. I agree that the appeal should be dismissed with costs for the reasons given in the judgment of Manyindo, D. C. J.

Marie 1996. Dated at $M$ engo this. . day of

n. . איז מס JUSTICE COURT

#### REPUBLIC OF UGANDA

### IN THE SUPREME COURT OF UGANDA AT MENGO

., TS3K00K0, J. S. C.) (CORAH: MANYINDO, D. C. J., ODER, J. S.

## CIVIL appeal NO. 20/1994

# BBT ;; E 3 N

JOSEPH BAYEGO APPELLANT'

*i*

*\ if*

# VERSUS

THE CHIEF REGISTRAR OF TITLES RESPONDENT

(Appeal from the decision of the High Court of Uganda at Kampala (E. A. Mpagi-Bahigeine,J.) dated 29th October, 1993

I N

### CIVIL SUIT NO. 14/1993?

#### JUDGMENT OF TSEKOOKO, J. S. C.:

I have read in draft the judgment prepared by Manyindo, D. C. J. and agree that this appeal should be dismissed with Costs to the respondent. I have nothing useful to add.

Delivered at Mengo this day of 1996.

< J. U. I!. TSEKOOKO, JUSTICE *'h* THE SUPREME COURT.