Edgar Agaba v Uganda Land Commission (Miscellaneous Cause No. 7 of 2025) [2025] UGHCCD 74 (20 June 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA MISCELLANEOUS CAUSE NO. OOO7 OF 2025 IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

EDGAR AGABA ::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

## VERSUS

UGANDA LAND COMMISSION :::::::::::::::::::::::::::::::: RESPONDENT

## BEFORE: HON. JUSTICE SIMON PETER M. KINOBE

## RULING

## BACKGROUND

This application was brought Under Article 42 of the 1995 Uganda Constitution, Sections 33, 36 and 37 of the Judicature Act Cap. 16 and Rules 3, 5, 6, 7A and 8 of the Judicature (Judicial Review) Rules, S. I No. 11 of 2009 (as amended by S.l. No. 32 of 2019) and Order 52 rules 1 & 2 of the Civil Procedure Rules for;

- 1. A declaration that the Respondent's decision communicated in their letter dated 6/6/2024 is ultra vires, was made in excess of the respondent's jurisdiction, violates the rules of natural justice and was reached without according the applicant a hearing. - 2. A writ of Certiorari quashing the decision of the Respondent in their letter dated 6/6/2024 cancelling the applicant's certificate of title for land comprised in LRV HQT 1271 FOLIO 19 PLOT 1, HILL ROAD HOIMA.

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- 3. A writ of mandamus reinstating the applicant as the registered proprietor of a leasehold interest in land comprised in LRV HQT 1271 FOLIO 19 PLOT 1, HILL ROAD HOIMA. - 4. An order of injunction restraining the respondent from cancelling the applicant's certificate of title for land comprised in LRV HQT 1271 FOLIO 19 PLOT 1, HILL ROAD HOIMA until the applicant has been accorded due process under the law. - 5. An order awarding the applicant general damages for the inconvenience and stress suffered as a result of the respondent's ultra vires decision. - 6. An order awarding the applicant costs of this Application.

The application is supported by an affidavit deponed by the applicant whose grounds are briefly that;

- a) The applicant is the registered proprietor of land comprised in LRV HQT 1271 FOLIO 19 PLOT 1, HILL ROAD HOIMA. - b) The respondent by letter communicated its decision to cancel the applicant's certificate of title for the suit land. - c) The applicant has duly obtained an order enlarging time for him to bring the present application challenging the respondent's decision. - d) The respondent did not accord the applicant a fair hearing or the due process entitled to him before reaching its decision to cancel the title. - e) The respondent's decision is ultra vires and is tainted with gross illegality, irrationality and procedural impropriety. - f) The respondent lacks jurisdiction to cancel certificates of title already issued out and made the impugned decision in excess of its jurisdiction. - g) It is just fair and equitable that the reliefs sought be granted.

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In reply to the application the respondent filed an affidavit deponed by Andrew Nyumba whose grounds of opposition are briefly that;

- a) There is no decision made by the respondent and that as such the application is preemptive and anticipatory in nature hence not amenable for judicial review. - b) The letter dated 6/6/2024 is simply a recommendation for cancellation of title and that the discretion lies with the Commissioner Land Registration. - c) The decision was premised on a report from the criminal investigations directorate which found that the applicant's certificate of title overlapped plot 21 circular road. - d) The Commissioner is the custodial owner of the suit land. In its management of government land, it can recommend the cleaning of the land register book when evidence of double plotting is brought to its attention. - e) The respondent has no mandate to cancel certificates of title but has the mandate as controlling authority to recommend cancellation of titles. - f) A recommendation to cancel a title is not in itself a cancellation of title. - g) The Commission's functions involve recommendations to cancel titles where there are irregularities affecting the title. - h) The application be dismissed with costs.

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#### REPRESENTATION

The applicant was represented by Asiimwe Mugumya and Ssekitto Moses and the Respondent by Asiat Nabbanja.

#### ISSUE FOR DETERMINATION

- 1. Whether this application is amenable for Judicial review. - 2. What remedies are available to the parties.

#### DETERMINATION

I have read the application, the affidavit in support, the affidavit in reply and rejoinder together with the submissions of both parties. I also note all the authorities cited by both parties and I fully agree with all these authorities in as far as they relate to Judicial Review and find no reason to depart from the same. However, before relying on the same this application should be properly before me.

It is vital to note that Judicial review is not concerned with the decision but rather with the process through which the decision was made.

Under judicial review, courts check the exercise of power by those exercising quasi-judicial functions. Administrative quasi-judicial powers should be exercised judiciously in line with the principles of natural justice. Individuals should be treated fairly by the authority to which s/he has been subjected to (*see; Haj Kaala Ibrahim Vs the Ag and anor Mc 23 of 2017, also, DOTT Services Ltd Vs Attorney General Misc Cause No.125 of 2009).*

An applicant for Judicial Review must prove that the decision made was tainted either by; illegality, irrationality or procedural impropriety. (see

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MC.182 OF 2024 Uganda Association Of Consulting Engineers Limited Vs The Prime Minister of The Republic of Uganda and 2 ors, on a detailed definition of illegality, irrationality or procedural impropriety)

The purpose of judicial review is to ensure that the individual receives fair treatment, not to ensure that the authority after according a fair treatment reaches on a matter it is authorized or enjoined by law to decide, for itself a conclusion which is correct in the eyes of the court (see;- Chief Constable Of North Wales Police Vs Heavens (1982)3 All ER 108)

The applicant contends that the respondent cancelled his title without according him a fair hearing. That he only got know of this decision when he sent a representative to the respondent's offices to follow up on the payment for ground rent.

In reply the respondent stated that it is the controlling authority of the said land and custodian of the same under Article 239 of the Constitution of the Republic of Uganda and Section 50 of the Land Act Cap 236 which bestows the respondent with the mandate to manage and hold land in Uganda vested in or acquired by government.

That the Respondent has the mandate to recommend for the rectification and cleaning of the Land register of any irregularities and errors over any land under its custody as a normal duty in the execution of its mandate of management of government land under Section 50 of the Land Act Cap 236.

That no decision to cancel the Certificate of Title was made by the Respondent, but instead the latter recommended a cancellation to the

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Commissioner Land Registration the custodian of the Land Register, whose mandate is the cancellation of certificates of titles tainted with errors or irregularities in accordance with section 88 of the Land Act Cap 236, a process the latter does after public hearings are conducted by the said office not the Respondent. The Commissioner Land Registration makes its independent decisions.

The respondent is established under Article 238 of the Constitution of Uganda and section 47 of the Land Act Cap 236. The functions of the respondent are provided for under Article 239 of the Constitution of the Republic of Uganda and Section 50 of the Land Act Cap 236.

### Article 239 provides that;-

*"The Uganda Land Commission shall hold and manage any land in Uganda vested in or acquired by the Government of Uganda in accordance with the provisions of this Constitution and shall have such other functions as may be prescribed by Parliament".*

Section 50 of the Land Act Cap 236 provides that;-

*The functions of the Commission shall be to—*

- *a) hold and manage any land in Uganda which is vested in or acquired by the Government in accordance with the Constitution;* - *b) where applicable, hold and manage any land acquired by the Government abroad, except that the Commission may delegate the management of such land to Uganda's missions abroad;* - *c) procure certificates of title for any land vested in or acquired by the Government;* - *d) perform such other functions as may be prescribed by or under this Act or any other enactment.*

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From the above provisions I note that the respondent holds land for and on behalf of government and does not have the authority or power to cancel a title or alter an entry on to the registry of titles. He is a landlord like any other.

The mandate to cancel a title or alter an entry on to the registry of titles is independently exercised by the commissioner land registration who is the primary custodian of the registry of titles.

I therefore agree with the respondent that its letter to the Commissioner Land Registration was a mere recommendation for cancellation of the Certificate of Title/ complaint by the Respondent. I also find that the commissioner land registration acts independently and is not bound by the recommendations of the respondent. The commissioner land registration can choose to go by the recommendations of the respondent or choose to ignore the same.

Where the respondent forwards a recommendation to the office of the Commissioner land registration for a cancellation of a title, the office of commissioner land registration has to take initiative to evaluate the qualities that cloth a cancellation. In such instances, the respondent is a complainant like any other person. In essence, the respondent's right to complain or make recommendations cannot be fettered through an application for Judicial review as the same are not decisions in finality but rather complaints of some sort.

The procedure as stipulated under the law on cancellation of title therefore has to be followed by the commissioner land registration as briefly discussed below.

Issuance of summons; Section 149 of the Registration of Titles Act Cap 240 provides for power to require explanation and production of documents.

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That; *'the registrar may by summons require the proprietor or mortgagee or other person interested in any land under the operation of this Act, in respect of which any transfer, lease, mortgage or other dealing…; to appear at a time and place to be appointed in the summons and give any explanation concerning such land or any document affecting the title to the land…'*

The essence of this section is that, summons are issued where an illegality is profound and there is need to investigate and establish whether the matter may necessitate the issuance of notice of cancellation.

Issuance of a notice of cancellation; In case the complaint holds weight on illegality then it can be investigated further by issuing a notice of cancellation under Section 88 of the Land Act cap 236. Section 88(2) provides that the registrar of titles shall give notice of not less than 21 days to any party likely to be affected by any decision made under this section. Why issue a notice? -Because the decision taken by the Commissioner land registration may affect the status of the register either through rectification or cancellation. This is determined by the process of a public hearing. In the event that the procedure as set out by the Law is not followed a party affected would then have the right to apply to this court for judicial review on any of the grounds of illegality, irrationality or procedural impropriety.

I find that the respondent acted within its mandate and within the precincts of the law. As such, this application is devoid of merit as it does not disclose grounds of illegality, irrationality or procedural impropriety. I therefore find that this application is not amenable for judicial review.

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I also find that the same is prematurely before court. The applicant ought to have waited for the commissioner land registration to run through the process highlighted above.

As a general rule, it would be contrary to public policy, and as such an abuse of court process, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under a specific provision of the law to proceed by way of an ordinary action and by this means to evade the procedures laid out by Law (also See O'Reilly v Mackman [1983] 2 AC 237)

Having held as above I dismiss this application with costs to the respondent.

…………………………………………………

SIMON PETER M. KINOBE JUDGE

DATE: 20.06.2025