Bitekerezo v Commissioner Land Registration (HCT-01-CV-MC 26 of 2024) [2024] UGHC 1123 (11 December 2024)

## **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### 3 **HCT- 01- CV – MC NO. 026 OF 2024**

### **BITEKEREZO BERNARD :::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

# 6 **THE COMMISSSIONER LAND REGISTRATION :::::::::: RESPONDENT BEFORE: HON. JUSTICE VINCENT WAGONA**

### **RULING**

- 9 The applicant brought this motion under sections 71, 91, 92 and 94 of the Registration of Titles Act Cap. 240 of the Revised Laws of Uganda and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules for orders that: - 12 **1. The Commissioner Land Registration be directed to issue a special certificate of title for land comprised in FRV HQT526, Folio 2, Block (Road) Market Street, Plot 17 at Kyenjojo Central currently registered** 15 **in the names of MUGENYI JULIUS.** - **2. The Commissioner Land Registration be ordered and or directed to vest and or register the said land into the names of BITEKEREZO** 18 **BERNARD (The applicant) who is the owner of the same.** - **3. The Respondent be ordered to pay costs of the suit since the loss of the title was caused by her officers.** - 21 The grounds in support of the application are contained in the affidavit of Mr. Bitekerezo Bernard (the applicant) who deposed as follows; - 1. He is the owner of land comprised in **FRV HQT526, Folio 2, Block (Road)** - 24 **Market Street, Plot 17 at Kyenjojo Central which** he acquired through his


biological brother, Mugenyi Julius who later got registered as proprietor as a trustee for the applicant.

- 3 2. He has been using the suit land as collateral for a number of loans from Centenary Bank using powers of attorney from the brother, Mugenyi Julius. Subsequently, he agreed with the brother where he compensated him for any 6 interest he had in the land and they executed a document to that effect dated 11.12.2022 where the brother consented to have the land in issue registered into the names of the applicant. - 9 3. The applicant's brother signed transfer forms to that effect and availed a copy of his National Identity Card to facilitate the transfer. He paid the stamp duty and submitted a duplicate certificate of title, duly signed transfer 12 form together with his National Identity Card, passport size photos to the Ministry of Lands officer, Fort Portal Zonal Offices. - 4. That after submitting the documents for registration, it was discovered that 15 his brother had lodged a caveat on the title. He later filed Misc. Cause No. 0001 of 2023 for removal of the said caveat and this court granted the said order on 14th June 2023 by Hon. Justice Vincent Emmy Mugabo. - 18 5. That after securing the order, he was informed by officials from Ministry of Land (Fort Portal MZO) that the title had gotten misplaced and could not be traced. He went ahead and reported a case at Fort Portal Central Police 21 Station and a one Arthur an officer at Fort Portal Zonal Offices whom he handed over the title to was arrested and he admitted having lost or misplaced the title. - 24 6. He made several follow ups with the Ministry of Land including meeting the Commissioner Land Registration and other senior officials about his title but there are no signs of it being retrieved or recovered. He through his lawyers


wrote a letter demanding for issuance of special certificate of title by the Respondent and he was advised to file an application in court for such 3 orders.

- 7. The land in issue is developed with a commercial house, currently rented by Centenary Bank, Kyenjojo Branch and the Bank requires a copy of the title in his names to effect rent payment for next year commencing on 1st 6 November 2024 thus there is urgency to have this application granted and the title issued to the applicant so that he doesn't miss out. - 9 8. This court has the jurisdiction to grant the orders sought in this application under the provisions of the Registration of Titles Act and it is fair and just that the same are granted and no prejudice shall be suffered by the 12 Respondent or any person if the orders herein are granted since the Respondent claims no interests in the impugned title or any person. That the Respondent be ordered to pay the costs of this application since the loss of 15 the title was on account of the negligence of her staff.

### *Representation and Hearing:*

At trial, Counsel Niwagira Jose Kyomuhendo appeared for the applicant on brief 18 for Mr. Rukundo Ibrahim. Miss Niwagira adopted the written submissions filed in

- support of the motion and prayed for a ruling. The Respondent was duly served with a copy of the motion per the affidavit of service filed on 11th November 2024 - 21 and the Respondent acknowledged receipt of the application, written submissions for the applicant and schedules for filing submissions per the return of service attached as annexure A, B and C to the affidavit of service. The Respondent on the - 24 date of hearing did not appear in court neither was an explanation availed to court for none attendance. I am thus satisfied that the Respondent was duly served and


her conduct demonstrated that she is not interested in defending the application at hand. I shall thus consider the same ex-parte.

### 3 *Applicant's written arguments:*

Learned counsel for the applicant submitted that under section 71 of the RTA, the registrar has powers to issue a special certificate of title where the original is lost or 6 obliterated. That under sections 91 and 92 of the Act, a special title may be applied for by the original proprietor or a purchaser of the same who paid full consideration since in law he or she becomes the owner of the land with capacity to

- 9 sue and been sued. That in the current motion, the applicant having compensated the proprietor and submitted his documents for registration which were misplaced, he has the locus to present the application at hand. That it is fair that the - 12 application is granted so that the applicant is not prejudiced by such loss. Learned counsel also prayed for costs of the suit.

*Issues:*

- 15 I find one issue which is pertinent in the circumstances being; whether or not this is a proper application for grant of an order for issuance of special title and a vesting order? - 18 *Consideration by Court:*

Section 71 of the Registration of Titles Act Cap. 240 provides that:

*If any original certificate of title is lost or destroyed or so obliterated as to* 21 *become illegible, the Registrar may cause a copy of it to be prepared and to be endorsed with all such entries as were upon the original so far as they can be ascertained from the records of the office and other available* 24 *information and shall make and sign a memorandum upon the copy stating that it is a substitute to be used in place of the original, and what has become of the original so far as known or supposed, and from the date*


# *of the copy being so signed it may be bound up in the Register Book and used in place of the original for the purpose of dealings.*

The upshot of the above provision is that the Registrar of titles (commissioner land registration) has the powers to issue a special certificate of title where the original 6 is lost, destroyed or obliterated. The exercise of such powers by the Registrar does not require an order of court to that effect. What the proprietor is required to do, is to furnish the registrar with evidence that the title was lost and the manner in which 9 it got lost. However, where such notice is given and the commissioner or registrar is reluctant to issue such without any reasons advanced, a party may apply to court under section 98 of the Civil Procedure Act and 33 of the Judicature Act for orders 12 to compel the commissioner to issue a special certificate of title.

Ordinarily, the special title is issued in the names of the proprietor and thus the law 15 assumes that it is the proprietor to apply for such special title or his or her authorized representative. This in my view appears to be a general rule which has exceptions. My reading of section 91 and 92 of the Registration of Titles Act Cap. 18 240, returns a view, that once the proprietor transfer his interests in the land into the names of the purchaser, the rights formerly enjoyed by the proprietor becomes vested in the purchaser of the land who in law is the owner of such land. Section 21 91 of the Registration of Title Act provides that:

*The proprietor of land or of a lease or mortgage or of any estate, right or interest therein respectively may transfer the same by a transfer in one of the* 24 *forms in Schedule 8 to this Act; but where the consideration for a transfer*

*does not consist of money, the words "the sum of" in the forms of transfer in*


*that Schedule shall not be used to describe the consideration, but the true consideration shall be concisely stated.*

*(2) Upon the registration of the transfer, the estate and interest of the proprietor as set forth in the instrument or which he or she is entitled or* 6 *able to transfer or dispose of under any power, with all rights, powers and privileges belonging or appertaining thereto, shall pass to the transferee;and the transferee shall thereupon become the proprietor* 9 *thereof, and while continuing as such shall be subject to and liable for all the same requirements and liabilities to which he or she would have been subject and liable if he or she had been the former proprietor or the* 12 *original lessee or mortgagee*.

Section 92 adds that;

*By virtue of every such transfer as is herein mentioned, the right to sue upon any mortgage or other instrument and to recover any debt, sum of money, or* 18 *damages under it. notwithstanding the same, is deemed or held to constitute a chose in action, and all interest in any such debt, sum of money or damages shall be transferred so as to vest the interest at law as* 21 *well as in equity in the transferee of the interest; but nothing in this section shall prevent any court from giving effect to any trusts affecting such debt, sum of money or damages, in case the transferee as between himself or* 24 *herself and any other person holds the same as a trustee.*

The above legal provisions in my view posit a strong school of thought that where 27 a proprietor transfers land into the names of another person (transferee), the interest previously enjoyed by the proprietor becomes vested in the transferee. I


strongly believe, that the purchaser or subsequent owner becomes in the eyes of the law the proprietor of such land even before the transfer is effected by Registrar.

- 3 Thus the transferee is enjoined with the right to bring any action in relation to the land in issue. - 6 In the case before me, the applicant clearly indicated that he agreed with the current registered proprietor of land comprised in **FRV HQT526, Folio 2, Block (Road) Market Street, Plot 17 at Kyenjojo Central** being Mugenyi Julius and 9 compensated him with shs 100,000,000/= (One Hundred Million Shillings) and he signed a document authorizing the transfer. The title and the consent are attached as annexure A and B respectively. The proprietor also went ahead and signed - 12 transfer forms and a copy was attached as annexure B. The applicant pursuant to the said transfer, paid the stamp duty and registration fees to cause the transfer in issue (see: Annexure D) and a copy of the National Identity Card of the proprietor - 15 and the applicant is attached as annexure E. The applicant also attached an order issued by Justice Vincent Mugabo ordering the caveat lodged on the title by Julius Mugenyi, the proprietor to be removed and the order is attached as annexure F, in - 18 order to have the transfer effected. This evidence in my view is sufficient proof that the proprietor transferred all the interests, choses in action and possession upon the applicant who currently in law is the owner of the suit land. - 21

The applicant avers that the title was misplaced by officials of the Respondent at Fort Portal Zonal Offices and he went ahead and reported a criminal case of theft

- 24 of documents against a one Arnold Andrew Ninda (CRB 459/2024) and attached a copy of the reference as annexure F2. That he went ahead and wrote to the Respondent about the same and no response come through. These allegations were - 27 not denied by the Respondent who was duly served and opted not to file a


response. It is settled law that where a fact is alleged by one party and not denied by the opposite party it is taken to be admitted. In the absence of any evidence to 3 the contrary and in view of the evidence presented by the applicant, I am satisfied that there is just cause to order the Respondent to issue a special certificate of title in the circumstances to allow the applicant get registered as the proprietor.

In addition to the above, the transfer forms were signed and copies submitted to the Respondent's Fort Portal offices which were lost, I thus believe it is fair and just to 9 direct the Respondent to vest the suit land into the names of the applicant pursuant to section 151 of the Registration of Titles Act (*See annexure C to the affidavit in support*). I believe it would be a big task for the applicant to again trace the 12 proprietor for purposes of signing fresh transfer forms. Further, given the urgency expressed by the applicant where any delay may lead to loss of money at the negligence of the Respondent's agents who misplaced the title deeds and the 15 transfer instruments, I find it fair to direct the Respondent to immediately cause a transfer of the special title to be issued into the names of the applicant as the new proprietor based on the stamp duty and registration fees previously paid by the 18 applicant subject to verification by the Respondent.

Lastly, section 27 of the Civil Procedure Act is to the effect that costs follow the 21 event thus a successful party should ordinarily be awarded costs. The applicant indicated in the motion that the Respondent should be ordered to pay costs since the loss was caused by the negligence of her officers. Whereas section 27 of the 24 Civil Procedure Act is to the effect that costs follow the event, the grant or none grant is premised on the discretion of court and costs should be granted in deserving circumstances. In the present suit, I find it not prudent to award costs in


the interests of promoting harmony and to ensure that the applicant's prayers are quickly processed by Respondent. I thus decline to award costs.

Consequently this application succeeds with the following orders:

**(1)The Commissioner Land Registration is hereby directed to issue a** 6 **special certificate of title for land comprised in FRV HQT526, Folio 2, Block (Road) Market Street, Plot 17 at Kyenjojo Central currently registered in the names of MUGENYI JULIUS.**

- **4. The Commissioner Land Registration is further ordered and or directed to vest and or register the said land into the names of** 12 **BITEKEREZO BERNARD (The applicant) who is the owner of the same.** - **5. No order is made as to costs.**

**I so order.**

**Dated at Fort Portal this 11th day of December 2024**

Vincent Wagona **High Court Judge** 21 **FORT-PORTAL**