Gatare v Parkash Kaur and Others (Civil Suit 106 of 1995) [1998] UGHCLD 3 (3 February 1998)

Full Case Text

### THE REPUBbTC or UGANDA

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

#### H. C. C. S. 106 OF 1995

TOM GATARE. .. PLAINTIFF;. .. .

## VERSUS

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PARKASH KAUR. PROPERTY SERVICES LTD. RESPONDENTS. REGISTRAR OF TITLES.

BEFORE: THE HON. LADY JUSTICE C. K. BYAMUGISHA.

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By his amended plaintiff filed on'the 3rd day of September 1997, the plaintiff sought declarations against the defendants .of or in any way interfering with the plaintiff's the first defendant property- and re-instate the plaintiff as the proprietor. the . first defendant and second defendant, that he is the lawful owner of the property described as Plot No. 5 Banigo road -Kabale District, a permanent injunction to restrain their against or servants or any of them from entering s\ale, alation or disposal ' i; right to property, one order directing the Registrar of Titles to counsel as the registered proprietor of the suit registered

property comprised in the above mentioned plot from one L.. S. Kogo who sold the property by virtue of a power of attorney donated to him by the first defendant. The power of attorney was dated The According to the plaint the plaintiff purchased the su[it the 1st day of December 1987 (annaxture B) to the plaint.

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Fale took place on 6th October 1989. The property was duly registered into the names of the plaintiff on the 6th day of March 1990 under instrument No. 241091.

It is averred in paragraph eight of the plaint that the plaintiff while on a casual visit tot he Land office he met the Registrar of $\circ$

Titles who told him that he wanted to look at the Title of the suit property. It is pleaded that after a period of time, he went to check on his Title and found that the same had been transferred to the first defendant and that the second defendant had lodged a caveat. It is the plaintiff's case that the first defendant was registered and the 3rd defendant registered the first defendant through ground. The particulars of ground against each defendant is particularised and for purposes of this Ruling it was averred that the third defendant knowing and without any reason whatsoever cancelling the plaintiff from the registrar and registering the first defendant instead in the alternative, it was averred that the third defendant acted illegally and without jurisdiction.

When the matter came before me counsel for the plaintiff stated from the Bar that there was a point of law which he wished to be disposed of first before the hearing could commence. Counsel submitted that the third defendant had no jurisdiction to council the certificate of title without going to Court. He pointed out that the Registrar of Titles who is the third defendant purported to act under the provisions of Section 178 (a) of the Registrar of Titles Act. It was counsel's contention

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reason to -Court. this <^ourt' which have judiciary considered -this matter. decisions are: that the Registrar has no power to act under the section without number of authorities of The He was relying on a

- 1-. Fred Sentale v. Chief Registrar of Titles Misc Appl. No. 21/9S. - 2. MS Sudaplast Industries Ltd v. Chief Registrar of Titles; Misc. Appl. No. 93/95,

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**L** L 3 . British India General Insurance Co. Ltd v. The Commissioner for Land Registrar. Misc. App. No. 655/9 In all these decisions the Chief Registrar of Titles the applicants acting either under Section 43 of Land's Act or Section 178 (a) of the Registrar of Titles Act. Commissioner for Land Registration cancelled and titles deeds of **i** the Public

Counsel submitted that the above decisions held that,the Registrar has no power so act without going to court. He contention that the registrar has powers under the section to names and boundaries, that the plaintiff as I proceeds. correct errors in the register book, make amendments and alter and therefore he is entitled to council. the registered proprietor surrendered the title to the registrar and he therefore invited court to overrule the objection and the hearing of the main suit He stated lie came only correct minor errors but not to council registration.! response to the above submissions counsel for the first and second defendant supported the decision of the Registrar in cancelling the plaintiff's name from the registrar. He was his

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In order to determine the issues which have been raised, it is important to set out the background under which the Registrar of Titles acted. By a letter dated the 19th January 1994 ( annextured A") to the third defendant's written statement of defence, the registrar enumerated various irregularities which surrounded the entry of the plaintiff's name in the register. The registrar gave the plaintiff 21 day's notice to show cause why the registrar should not be amended and reinstate the names of the first defendant. On the 18th February 1994 a firm of lawyers acting on behalf of the plaintiff replied and stated that he was a victim of circumstances. They also prayed for more time to allow the plaintiff rectify the errors. The letter ends by stating that the plaintiff did not engineer the errors. On the 24th April 1994, the Registrar wrote to the firm of advocates again informing them that the plaintiff had presented the transfer for re-registration on 21/04/94 after fulfilling all but one important objection is that the transfer was signed by one Lakhinda Singh Hajpiat Koqo as "P. P. Parkash Kaur" when he was not backed by a lawful power of attorney as required by the provisions of Section 154 of R. T. A. He therefore declined to entertain the subsequent transfer and went a head to impound the special certificate of title.

From the foregoing, it is clear to me that the allegations made by the plaintiff in the paragraph 8 of the amended plaint to the effect that while he was on a casual visit to the Land Office he met the Registrar of Titles who told him that he wanted to look at the title can not possibly be true. He must have

surrendered his title in response to the registrar's letter of \* ! ' 19th January.

them. The section states that:- Section 69 of the R. T. A gives power to the registrar of Titles to require holders of certificates of title to surrender

"In case it appears to the satisfaction of the Registrar that any certificate of title or instrument has been issued in err-op or contains any misdescription of land or boundaries or that any entry or endorsement has been made in error on any certificate of title or instrument or that any certificate of title, instrument, entry or endorsement has been fraudulently any certificate of title or instrument is fraudulently or wrongly retained, he may by writing require the to deliver up same for thethe purpose cancelled or corrected or given to the proper party, I as the case be requires; and, comply with such requisition, the Registration may person to whom it has been so obtained' or is retained ; of being : in case or neglects to. or wrongfully obtained -or that apply tot the High Court to issue summons ..."

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The provisions of the above section are elaborate enough. The third defendant's letter of the 19th was written in exercise of the powers conferred by the above section. The plaintiff's lawyers responded by stating that he was a victim of circumstances and therefore he voluntarily surrendered his title The submi s s i ons by for the Registrar to rectify the errors.

a certificate of title unless he get a court order is not legally correct. He requires a court order if the holder of a certificate of title refuses is In the case of Sudaplast Industries ltd of that refusal the Registrar went a head to council the certificate of title. He seek summons in the case of British India General Insurance ltd ■(Supra) the registrar acted under the provisions of Section 4 3 of the -Public Lands Act. therefore not applicant to the facts of this case. counsel for the plaintiff that the registrar cannot council requested to do so. (supra) the applicant refused to surrender the title and inspire or neglects to surrender it The authorities are should have gone to court to

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The section noted correct. a number of errors which were process of registering the plaintiffs. The th i rd de f endant in reply. I have however that the Registrar enumerated illegally committed during the in the Registrar. does not set out the nature of these errors which the Registrar its written statement of defence pleaded a number of material facts which have not been denied by the plaintiff by |way of empowers him to correct errors In cancelling the plaintiff's title the third defendant acted under the provisions of Section 178 (a) of the R. T. A which

There is no doubt on the facts available that errors, as set out in the Registrar's letter of 19th January and the one of 8th a certificate said later that the Registrar acted illegally. April 1994 were committed and if and in the process of correcting these errors of title is cancelled it cannot be The Registrar

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I his decision to counsel the way he did first defendant could have brought one action'under Section 184 for ejectment, so, The are overruled and the hearing of the suit will proceed. and . therefore registration was in order. must >have been .satisfied in my view that the transaction between . the plaintiff and one Kogo did not satisfy the legal requirements plaintiff*'*s If the Registrar had not acted the since the plaintiff who has done the Registrar decision stands until the contrary is proved I I preliminary objection raised by counsel for the plaintiff I

> C. K. BYAMUGISHA JUDGE.

> > 3/2/98

3/2/98

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MR. Tebesigwa for Plaintiff

Mr. Winyi for Defendant. **I**

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Court: - **I**

Ruling delivered since all parties were valid dated.

D. K. WANGUTISI

REGISTRAR.

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