Luwemba and Others ( administrator of the late alozio Mukasa) v Commissioner Land Registration Masaka (Misc Cause No. 23 of 2020) [2021] UGHCLD 217 (5 August 2021)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MASAKA

## MISC. CAUSE NO. 23 OF 2020

### LUWEMBA JUDE & OTHERS

### (ADMINISTRATORS OF THE

LATE ALOZIO MUKASA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS

#### VERSUS

### COMMISSIONER LAND REGISTRATION (MASAKA) ::::::::::::::::::::: RESPONDENT

### *Before; Hon Justice Victoria Nakintu Nwanga Katamba*

## **RULING**

This is an application brought under Section 167 of the Registration of Titles Act, Section 98 of the Civil Procedure Act, and, Order 52 Rules 1 and 3 of the Civil Procedure Rules seeking orders;

- a) A vesting order be issued directing the Commissioner Land Registration to transfer property comprised in Block 139 Plot 26 at Buddu Mutuba II, into the names of the Applicants, as legal owners thereof; - b) Costs of the Application be provided for.

The grounds of the application as contained in Luwembo Jude`s affidavit are briefly as follows;

i) The Applicant is one of the children/beneficiaries and administrators of the late Alozio Mukasa and his estate;

- ii) The late Alozio purchased land comprised in Block 139 Plot 26 at Buddu Mutuba II from a one Byekwaso Paulo Lubega in 1982 vide sale agreement dated 3/9/82; - iii) The family then took possession of the land and upon completion of the purchase price, the Applicants' father was given a signed transfer form and consent to enable him transfer the land; - iv) That unfortunately, the late Alonzio and Byekwaso both died before the transfer was effected; - v) The family has been in quiet possession to date but have failed to effect the transfer since the vendor died and has no administrator to sign fresh transfer form;

The Respondent did not file an affidavit in reply to the application despite having been served with the notice of motion and its affidavit in support.

The Applicants filed written submissions and they are on the court record.

The Applicants submitted that they are equitable owners of the suit land and several people have attempted to deprive them of the same because it is not registered in their names. In 1986, a one Kasule Luyombo attempted to interfere with their interest and the late Alozio sued him vide civil suit No. 34 of 1986 which was determined in the late Alozio'z favour. In 2009, a one Mbalala Eria claimed to be the registered proprietor of Plot 25 Block 139 and claimed the suit land comprised in Plot 26 as well, and the Applicants were declared equitable owners of the suit land. It is the Applicants' submission that they have met all the conditions in Section 167 of the Registration of Titles Act since the purchaser paid the whole purchase price, the vendor/registered proprietor cannot be found as he passed away, possession was with the acquiesces of the registered proprietor, and in addition, they have paid a fee for assurance of title. They prayed for this court to find this application proper for a vesting order and issue the same for the transfer of the suit land.

#### **Determination of the Application;**

This application is brought under *Section 167 of the Registration of Titles Act Cap 230* which provides that;

"*If it is proved to the satisfaction of the registrar that land under this Act has been sold by the proprietor and the whole of the purchase money paid, and that the purchaser has or those claiming under the purchaser have entered and taken possession under the purchase, and that entry and possession have been acquiesced in by the vendor or his or her representatives, but that a transfer has never been executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found, the registrar may make a vesting order in the premises and may include in the order a direction for the payment of such an additional fee in respect of assurance of title as he or she may think fit, and the registrar upon the payment of that additional fee, if any, shall effect the registration directed to be made by section 166 in the case of the vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended by the same results as declared by section 166 in respect of the vesting orders mentioned there."*

In the case of *Aida Najjemba versus Ester Mpagi, Court of Appeal Civil Appeal No. 74 of 2005* court gave some guidance as to the conditions which ought to be satisfied under the above Section before the Registrar can exercise his or her powers. These are;

- i) That the land must be registered under the Registration of Titles Act and the purchaser must have paid the whole of the purchase price to the vendor. - ii) That the purchaser or those claiming under him or her have taken possession of the purchased land. - iii) That the purchaser has entered the land and the entry has been acquiesced in by the vendor or his or her representative. - iv) That the transfer of the property has not been executed because the vendor is dead or is residing out of jurisdiction or cannot be found.

Section 167 of the RTA gives the office of the commissioner land registration (the Respondent), the statutory power to vest land in persons who fulfill the conditions stated therein. Several cases have reiterated this by stating; that before an Applicant invokes the inherent jurisdiction of Court under Section 98 Civil Procedure Act or Section 33 Judicature Act in applications of this nature; he or she must have applied first for a vesting order to the 1st Respondent, who for some reason must have declined to exercise his or her powers under *Section 167 Registration of Titles Act*. *(See Aida Najjemba versus Ester Mpagi (Supra); Ronald Oine versus Commissioner Land Registration Misc. Cause No. 90 of 2013; Robert Mukanza & Petra Mukanza vs. Commissioner for Land Registration Misc. Cause No.75/2015.)*

In the instant case, besides the letter dated 24/3/2015 from the Commissioner Land Registration office advising that this claim be handled by a court of law, the Applicants have not adduced any other evidence to show that they made an application for the vesting order to the Commissioner Land Registration prior to filing this application.

I will exercise this court's inherent powers under *Section 98 of the Civil Procedure Act* and entertain this application since the Applicants are unrepresented and might not be aware of the proper procedure, and also since there is evidence to show that this issue was referred to the lands office and the Registrar of Title recommended that any claim be determined by court.

I will now consider the conditions for the grant of this application as laid out in *Aida Najjemba versus Ester Mpagi (supra)*.

## **i) That the land must be registered under the Registration of Titles Act and the purchaser must have paid the whole of the purchase price to the vendor.**

The Applicants have adduced into evidence a copy of the Certificate of Title for the suit land, as well as a search report from the office of the Registrar of Titles Masaka which evidence I find to be sufficient to prove that the suit land as comprised in Buddu Block 139 Plot 26 is registered under the Registration of Titles Act. The suit land is currently

registered to a one Paul Byekwaso Lubega who was also the vendor of the suit land to the late Alozio.

The Applicants also adduced into evidence two copies of sale agreements dated 3/9/82 and 5/4/85 showing that the late Alozio purchased a *kibanja* on Block 139, and registered land comprised in Buddu Block 139 Plot 26 measuring 10 acres, respectively.

The agreement dated 5/4/85 contains acknowledgments of receipt showing that the late Alozio paid the entire purchase of price of the suit land to its completion between 5/4/85 to 21/4/86. This condition has also been fulfilled.

## ii) **That the purchaser or those claiming under him or her have taken possession of the purchased land**.

In his affidavit, Luwemba John one of the Applicants and administrators of the estate of the late Alozio stated that they are in possession of the suit land.

## **iii) That the purchaser has entered the land and the entry has been acquiesced in by the vendor or his or her representative.**

It is the Applicants' evidence that their father bought a *Kibanja* from a one Paul Byekwaso and an agreement to that effect is on record. The Applicant also adduced evidence of a sale agreement for the suit land from Byekwaso to Alozio in which he the seller stated that Alozio has a *kibanja* on the suit land. The late Alozio and his family took immediate possession and the Applicants have adduced sufficient evidence to prove this fact. There is evidence of signed transfer forms and consent forms which clearly show that before his death, the late Byekwaso had accepted and acknowledged the possession of the suit land by the late Alozio and his family.

This condition has also been fulfilled by the Applicants.

**iv) That the transfer of the property has not been executed because the vendor is dead or is residing out of jurisdiction or cannot be found.**

It is the Applicants` submission that the vendor, the late Byekwaso Paulo Lubega passed away in the year 1986 and by reason of his death, the Applicants cannot get fresh transfer forms.

The Applicants adduced copies of a transfer form executed in 1986 and a consent form for the transfer also from 1986.

The Applicants have not adduced any official document to prove that the vendor Byekwaso Paul Lubega is dead. However, they adduced a certified copy of a judgment of the Chief Magistrates Court of Masaka at Masaka in which reference is made of Paul Lubega Byekwaso as the late. I take judicial notice of that judgment of the court and on that evidence, I find that this condition has also been fulfilled.

In the final result, I find that the Applicants have sufficiently proved that the late Alozio bought the land comprised in Buddu Block 139 Plot 26 measuring 10 acres from the late Byekwaso Paul Lubega, completed the purchase price, took uncontested possession, and his estate needs power to effect the transfer.

This application is therefore allowed and I make the following orders that;

- 1. The Respondent vests land comprised in Buddu Block 139 Plot 26 at Mutuba into the Applicants as Administrators of the estate of the late Alozio Mukasa; - 2. The Applicants meet all the fees necessary for vesting the suit land into their names. - 3. The Applicants meet costs of this application.

I so order.

Dated, signed and delivered by email at Masaka this 5 th day of August, 2021.

Signed**; \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_**

# **VICTORIA NAKINTU NKWANGA KATAMBA JUDGE**