Byakutaaga Asiimwe v Commissioner Land Registration (Civil Suit 51 of 2024) [2024] UGHC 1142 (25 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA CIVIL SUIT NO. 051 OF 2024

#### ASIIMWE BYAKUTAAGA EDWARD ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

#### Before: Hon. Justice Byaruhanga Jesse Rugyema

### JUDGMENT

- The Plaintiff sued the Defendant for inter alia, a declaration that the act of Defendant of cancelling the Plaintiff's certificate of title of land at Kiina-Buhuka, Hoima District, measuring approx. 251 hectares was illegal, an order for reinstatement of the plaintiff's certificate of title, general damages, interest and costs of the suit. - It is the Plaintiff's case that he was the registered proprietor of the suit $|2|$ land but in 2017 when he carried out an official search at the Lands office at Masindi, he found that his certificate of title had been cancelled by the defendant on the grounds that it had been illegally procured. The plaintiff contended that prior to cancelling of his certificate of title, he was not accorded a fair hearing and that when he therefore approached the office of the Commissioner for Land Registration, he was informed that the affected persons would be compensated for the loss of land by the Government. - The Plaintiff further contended that he has followed up with the said $[3]$ compensation process in vain yet the Defendant has refused to restore his certificate of title which was illegally and unlawfully cancelled. That as a result of the actions of the Defendant, the plaintiff has suffered mental inconvenience, loss anguish. and damage for which he seeks compensation.

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$[4]$ Despite being duly served with the summons to file a defence and a copy of the plaint on the $24^{th}/06/2024$ by a one **Muhesi Juliet**, a court process server, the Defendant did not file a defence. As a result, court proceeded under 0.9 rr.10 & 11(2) CPR and the suit was set down for hearing on $15<sup>th</sup>/10/2024$ .

### **Counsel legal representation**

The plaintiff was represented by Mr. Kitimbo Simon Peter of M/s Kitimbo $[5]$ Associated Advocates, Kampala who filed submissions for consideration in the determination of this suit.

## The burden and standard of proof

- $\vert \upsilon \vert$ Under S.101 of the Evidence Act, it is provided thus; - "1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. - 2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person." - It is trite law that the burden of proof in civil matters is on the plaintiff to $[7]$ prove his/her case on a balance of probabilities, Lugazi Progressive School & Anor Vs Serunjogi & Ors [2001-2005] 2 HCB 12. The burden is always on the plaintiff to prove his case on the balance of probabilities even if the case was heard on formal proof, Karugi & Anor Vs Kabiya & 3 Ors [1983] eKLR. - Counsel for the Plaintiff submitted that the plaintiff adduced unchallenged $[8]$ evidence that he lawfully acquired the suit land and that the plaintiff was neither notified of the intended cancellation of his certificate of title nor given a fair hearing before cancellation of the same. That because the plaintiff's certificate of title was cancelled, he is unable to freely transact in his land and this has psychologically tortured him since 2017 to date. Therefore, the action of the defendant of cancelling the plaintiff's title without following due process was illegal and unlawful for which he prays

court to exercise its discretion and award damages to the plaintiff for the inconveniences & suffering. Counsel relied on the authorities of Robert Cuossens Vs A. G [1999]1 EA p.46 and James Fredrick Nsubuga Vs Attorney General, HCCS No.13/1993 to support the above submission.

- [9] Section 91 of the Land Act (as amended) provides for the power to cancel any certificate of title of a citizen. It states thus: - "91. Special power of Commissioner - (1) Subject to the Registration of Titles Act, the commissioner shall, without referring to court or a District Tribunal, have powers 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 Commissioner shall, where a certificate of title or instrument - a) is issued in error; - *b) contains a wrong description of land or boundaries:* - *c) contains an illegal endorsement:* - d) is illegally or wrongfully retained: give not less than twenty one day's notice of the intention to take appropriate action, in the prescribed form to any party likely to be affected by any decision made under this section. - (2a) The Commissioner shall conduct a hearing, giving the interested party under rule (2) an opportunity to be heard in *accordance with the rules of natural justice..."* - [10] The Plaintiff filed his witness statement in court on $2^{nd}/08/2024$ and it was admitted as evidence in chief of PW1. He adduced evidence as to how he lawfully acquired the suit land in December 2002, acquired a lease offer thereon and later a freehold on 18/3/2007 (P. Exhs.1-8). Proof that his lawfully acquired certificate of title was cancelled without any reason being advanced and without being given an opportunity to be heard is the letter from the Ministry of Lands, Housing & Urban Development dated $19/1/2017$ (P. Exh.9). In paragraphs 18-21, he states thus:

"18. That I was never notified about the intended cancellation

of my certificate of title in respect of the suit land by the Defendant neither was I given any opportunity to explain to the Defendant why my certificate of title should not be cancelled.

- 19. That the actions of the Defendant of cancelling my certificate of Title in respect of the suit land were not only illegal but also unlawful. - 20. That as a result of the said cancellation, I am unable to freely transact in my land that I acquired through the established procedures. - 21. That I have been psychologically tortured because of the *Defendant illegally cancelling my title since 2019 to which* I pray for general damages." - [1] It is the Plaintiff's uncontroverted evidence that as the registered proprietor, he was neither notified of the intended cancellation of his certificate of title nor was he given an opportunity to be heard before the defendant cancelled his certificate of title. In my view, this action by the Commissioner for Land Registration was in contravention of the provisions of Article 44(c) the 1995 Constitution and Section 91 (2) (d) & (2a) of the Land Act (as amended) which provide for a right to a fair hearing. The Commissioner for Land Registration flouted the rules of procedure and abused the powers conferred upon him by law when he failed to notify and accord the plaintiff a hearing before cancelling his certificate of title. - [12] As per paragraphs 13-17 of PW1's witness statement, the Plaintiff found that his certificate of title had been cancelled by the defendant upon a search conducted in 2017. When he approached the defendant's office, he was informed that he would be compensated for the loss of his land. To date, the Plaintiff has not been compensated. There is therefore no doubt that the plaintiff has been unjustly denied the opportunity to transact, use his land or even be compensated for the loss of his land by the defendant who illegally and unlawfully cancelled the plaintiff's certificate of title and therefore is entitled to damages. - [13] According to the authority Blackburn M. Livingstone Vs Rawyards Coal Co, [1880] 5 AC 2539, it is trite that general damages are awarded at the

discretion of court and are intended to place the plaintiff in the position he would have been had the wrong complained of not occurred.

- [14] In the premises, I find the plaintiff has been greatly inconvenienced and subjected to psychological torture, anxiety and mental anguish since 2017 due to the Defendant's unjustified and illegal actions intended to deprive of him of his 251 hectares of land. On account of all the factors above, I award general damages of $Ugx$ 20,000,000/= as appropriate in the circumstances of this case. The sum to carry an interest at a rate of 8% p.a from the date of delivery of this judgment till payment in full. As per **Section 27(2) CPA** costs follow the event. Therefore, the plaintiff is as well awarded the costs of this suit. - [15] In conclusion, judgment is entered in favour of the plaintiff in the following terms: - a) It is hereby declared that the action of the Defendant of cancelling the Plaintiff's Certificate of title comprised in FRV 632 Folio 23; Buhaguzi Block 3, Plot 35 land at Kiina-Buhuka, Hoima District without advancing any reason and affording him a hearing was illegal. - b) The Defendant is ordered to reinstate and or restore the Plaintiff's Certificate of Title. - c) The Defendant is ordered to return to the Plaintiff the duplicate Certificate of Title for the suit land or in the alternative, process and deliver to the plaintiff a Special Certificate of title of the same description. - d) The Plaintiff is awarded general damages of $Ugx$ 20,000,000/= with an interest at a rate of **18% p.a** till payment in full. - e) Costs of this suit are awarded to the plaintiff.

Dated this 25<sup>th</sup> day of October, 2024.

**Byaruhanga Jesse Rugyema** JUDGE

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