Mulindwa v Commissioner Land Registration (Miscellaneous Cause 13 of 2022) [2023] UGHC 413 (10 August 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS CAUSE NO.13 OF 2022 IN THE MATTER OF THE REGISTRATION OF TITLES ACT CAP 230 AND IN THE MATTER OF BUDDU BLOCK 325 PLOTS 1804, 1805 AND 1806 AT SENYANGE**

## **MULINDWA HENRY:::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT VERSUS**

**COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::RESPONDENT**

### *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

### **RULING**

This Application was brought under Sections 167 and 177 of the Registration of Titles Act Cap 230, Section 33 of the Judicature Act Cap 13, Section 98 of the Civil Procedure Act Cap 71 and Order 52 Rules 1 and 3 of the Civil Procedure Rules SI 71- 1 seeking orders that;

- 1. A vesting order be issued to the Applicant in respect of land comprised in Buddu Block 325 Plots 1804, 1805 and 1806. - 2. An order directing the Commissioner for Land Registration to transfer two acres of land comprised in Buddu Block 325 Plots 1804, 1805 and 1806 into the names of the Applicant be granted. - 3. Costs of the Application be provided for.

The Application is supported by the affidavit of the Applicant, Mulindwa Henry were he states as follows, that;

- 1. The registered proprietor of the land comprised in Buddu Block 325 Plots 1804, 1805 and 1806 is John Bosco Lubuuka. - 2. Pursuant to a deed donation, the registered proprietor John Bosco Lubuuka donated the 2 acres of land to the Applicant.


- 3. At the time of the donation, the Applicant was already in occupation of the land as a kibanja holder. - 4. The registered proprietor passed on before he could complete the transfer to the Applicant. - 5. The Applicant does not know who among the family members of the late, is in possession of the duplicate certificate of title to the land. - 6. The Applicant and his family have always been in possession of the land and carried on developments acquiesced to by the late John Bosco Lubuuka during his life time. - 7. The land cannot be transferred to the Applicant because the registered proprietor passed on.

There was no affidavit filed in reply despite the Respondent having been served. The Parties were directed to file written submissions however, at the point of determination of the Application, none of the parties had filed written submissions. I shall therefore dispense with the submissions and proceed to determine this Application.

#### **Determination of the Application.**

The Applicant relies on the provisions of Section 167 of the Registration of Titles Act to apply to this Court for a vesting order. The Applicant in his affidavit states that the late John Bosco Lubuuka who was the registered proprietor of the land gave him the land as a gift *inter vivos* and he has been in occupation of the land since then.

#### *Section 167* of the *Registration of Titles Act* 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 *Aida Najjemba versus Esther Mpagi, COACA. No.74 of 2005*, it was held that though the provision requires an application for a vesting order to be made to the Commissioner Land Registration, the High Court has unlimited jurisdiction to grant a vesting order and for a vesting order to be granted; (1) *The land must be registered under the provisions of the Registration of Titles Act and the purchaser must have paid the whole of the price to the vendor*, (2) *the purchaser or those claiming under him or her have taken possession of the purchased land*, (3) *that the entry into possession by the purchaser has been acquiesced by the vendor or his or her representative*, 4) *the transfer of the property has not been executed because the vendor is dead or is residing out of jurisdiction or he/she cannot be found*.

The above case largely provides for instances where land subject to the Application was purchased however, this Application concerns a vesting order where the land was gifted as a gift *inter vivos* to the Applicant.

In *William Kalule versus Nassozi Norah and Another, COACA. No.29 of 2014*, it was held that when a donee receives land as a gift *inter vivos* but the registered proprietor of the land (donor) was unable to fully transfer the land into the donee's names, the donee acquires an equitable interest in the land and he/she can apply under


Section 167 of the RTA for a vesting order because their interest ranks parri passu with that of a purchaser.

In William Kalule versus Nassozi Norah and another (supra), it was further held that for a vesting order to be granted, the gift of personal property must have been complete that is; *the donor must intend to give the gift*, *the donor must deliver the property to the donee*, *the donee must accept the gift and take possession of it*.

With the above in mind, the Applicant averred that through a gift deed, the deceased, the late John Bosco Lubuuka gifted him land comprised in Buddu Block 325 Plots 1804, 1805 and 1806 during the deceased's life time and the Applicant has been in occupation of the same.

The deed the Applicant refers to was never produced as evidence. Besides the assertion that the Applicant has been in possession of the land, no other evidence was adduced to support the fact that the Applicant is in or has been possession of the land subject to this Application. To put it simply, there is no evidence to prove that the late John Bosco Lubuuka gifted the land to the Applicant or that the late duly delivered up the land. There is also no sufficient evidence to support the fact that the Applicant accepted the gift or that the Applicant took possession of the land.

In the result, I am constrained to grant this Application due to lack of sufficient evidence to support that there was ever a gift *inter vivos* to the Applicant.

It is important to note that in such cases involving land of a deceased person, it is ideal to also serve the Application on the beneficiaries or relatives of the deceased or the legal representative of the estate of the deceased where applicable so that they are aware and to a greater extent, they may confirm or deny the fact that a gift *inter vivos* was ever made. Property of a deceased person is in most cases subject to many interests and it would be detrimental to all parties concerned to issue a vesting order without sufficient evidence or without the parties concerned being aware.


In the result, it is this Court's finding that the Applicant has failed to adduce sufficient evidence to warrant a grant of the vesting order.

This Application is hereby dismissed and considering that the Respondent never responded nor appeared for this Application, each party shall bear its own costs.

I so order.

Dated and delivered electronically this 10th day of August 2023.

**Victoria Nakintu Nkwanga Katamba.**

**Judge.**