Muwanga v Commissioner Land Registration (MISCELLANEOUS CAUSE NO. O02O OF 2024) [2024] UGHC 1222 (11 April 2024)

Full Case Text

# THE REPUBTIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# LAND DIVISION

# MISCELLANEOUS CAUSE NO. O02O OF 2024

# NSUBUGA WILLIAM MUWANGA ::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

#### VERSUS

COMMISSIONER LAND REGISTRATION RESPONDENT

# o BEFORE: HON. LADYIUSTICENABAKOOZAFLAVIA. K

#### RULING

- 1. The Applicant moved this court by way of an amended notice of motion under Article 139(1) of the Constitution, Section 14 (1) and 33 of the fudicature Act, Section 98 ofthe Civil Procedure Act, Sections 78, 80, Bs and, L77 of the Registration of Titles Act and Order 52 Rules 1 and 2 of the Civil Procedure Rules SI 7L-L. He is seeking for orders that: - a. A vesting order be granted in favor of the Applicant in respect of Land comprised in Kyadondo Block 121 Plot 27 land' at Nangabo, Kasangati town council Wakiso district (hereinafter called the 'suit land). - b. The Respondent effects the transfer of the Certificate of Title to the suit land in to the names of the Applicant in order to subdivide and distribute the suit property to all the beneficiaries of the Estate of the Late Alias Merekizadeki Mukasa. - c. The costs ofthe Application be provided for.

2. The grounds of the application are contained in the notice of motion and supported by the Applicant's affidavit. The Applicant avers that he is a son, heir and one of the surviving beneficiaries of the estate ol the late Mukasa who died in 1999. That the deceased left the suit land duly registered with the office of the Administrator General Vide SR/76/2759. That the suit land

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was once fraudulently translerred into the names of Betty Nabayego Elizabeth purporting to be the administrator of the estate of the late Mukasa alias Merekizadeki. That she caused sub-divisions of various plots and fraudulently transferred the same into the names of a one Ssentongo Daniel and later into the names of Musoke Henry. That the Applicant filed a complaint with the Respondent lor cancellation and reinstatement of Plot 27 which was effected. That he and other beneficiaries to the estate are the only people in actual and physical possession of the suit land. That it is impracticable to get letters of administration in respect of the estate since the estate file is a succession register which was closed by the Administrator General. That he applied for a vesting order from the Respondent who advised him to file for the same in the High Court and the only way the certificate oftitle can be transferred is by granting the application.

3. The application is further supported by the following evidence: a copy of a special certificate of Title for land comprised inPlot2T Block 121, a copy of arecommendation of the Joint Working Committee On Succession Registers and certificates of succession, a copy of a search statement dated 5/05/2023,and rejection letter from the Respondent dated 20/1.2/2023.

- 4. Representation; the Applicant was represented by Counsel Muhangi George while the Respondent was represented by Counsel Hakimu Babu. - 5. When the application came up for hearing on 19/03/2024, Counsel for the Respondent in absence of the Applicant and his Counsel applied for dismissal of the application under Order 9 rule22 of the Civil Procedure Rules. The matter was dismissed at L2:15 pm, and at L2:56 pm, Counsel Muhangi George appeared and prayed for setting aside the dismissal and reinstatement of the application which prayer was granted. - 6. The Court directed that the Respondent to file an affidavit in reply and submissions by 3/04/2024 and a rejoinder by B/1a/2024. However, the Respondent did not file any affidavit in Reply as directed by this court. - 7. In the case of Samwiri Massa Vs. Rose Achen Il9TBlHCB 297 it was held that where certain facts are sworn in an affidavit, the burden to deny them is on the other party and if he or she does not, they are presumed to have

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been accepted. Accordingly, the court considers that the facts deposed to in the Applicant's affidavit are un-opposed and therefore accepted. Nevertheless, the court shall proceed to determine the merits of the application. The Applicant's submissions on record have been considered.

#### B. Issues for determination;

1. Whether the suit land can be vested into the Applicant?

# 9. Resolution ofthe Issue

Counsel for the Applicant relied on the Black's Law Dictionary Znd Edition for the definition of a vesting order as a court order granted by High Court transferring legal ownership of property from one person to another in lieu ofconveyance. He also stated that Section 78 ofthe RTA dictates that,"a person who claims that he/she has acquired a title by possession of land registered under this Act may apply to the Registrar for an order vesting the land in him/ her for an estate in fee simple or other estate claimed".

- 10. Counsel also cited the case of Mutyaba Tom Vs fames Kayimbye Sebinene M and Anor Misc. Application No. 4O of 2OlB where lustice Henry Kawesa held that the Commissioner was disinterested in granting a vesting order when she advised the Applicant to make a similar application to court hence necessitating the intervention of court. - 11. Counsel argued that the Applicant applied for a vesting order to the Commissioner Land Registration on the 6/11/2023 but the same was rejected on 20/L2/2023 with a recommendation that it should be made to this court. Thus, that this court is vested with unlimited original jurisdiction under Article 139(1) of the Constitution and Section 14(1) of the fudicature Act to grant such orders. - 12. Further, while relying on Section 78 of the Registration of Titles Act, Counsel submitted that the Applicant has been in undisputed possession of his father's land since childhood to date. That when the Applicant approached the office of the Administrator General for a certificate of no objection, he was inlormed that the suit land was registered under the Succession Register files vide SR/16/2759 and that all files under the

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Register were closed. That the Applicant was advised that the only way he could get registered on the certificate of title was through getting a court order vesting the suit land into his names. That the certificate of title to the suit land has been subjected to various fraudulent actions and would be detrimental to the Applicant if the application is not granted.

13. It is good practice that before applications of this nature are made to this court, recourse must have been made first to the Registrar of Titles. This dictated by Sections 78 and 167 ofthe RTA, as properly cited by Counsel. ln this case, basing on the evidence on record, I find that recourse was made to the Registrar of Titles before the instant application was made to this court. This application was properly made to the court.

- 1,4. Section 78 of the RTA, under which this application was brought, stipulates that "a person who claims that he/she has acquired a title by possession to land registered under this Act may apply to the registrar for an order vesting the land in him/her for an estate in fee simple or the other estate claimed". - 15. From the record, the certificate of title of the land in issue and other evidence led reveals that it has been registered in the names of 7114s Merekizadeki Mukasa' since 1946/1,2/1,7. This is further evidenced by annexure D which is a search report issued by the Respondent on 5/05/2023. In both the application and submissions, the Applicant told court that he is a son to the late Mukasa who died in 7999 and that he is a beneficiary to his estate. - 1,6. The provisions of Section 78 of the Registration of Titles Act, under which the application was brought, are clear. They have been expounded in the case of Nebbi & Anor v Manano (Civil Appeal No. 0003 of 2005) where my brother Mubiru J pointed out that:

...in the case of registered land, under sections 7B-91 ofThe Registration of Titles Act, a person claiminq title bv adverse oossession mav cause an en on he re I ter where the re is rm

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n who a licatio I v r caveat. The effect is that registration oftitle acquired by adverse possession is confined to cases where the registered owner has died, has sold the land without conveyancing formalities or has abandoned the land and hqs no interest in contesting the claim. However. for public policJt reasons. the automaticall.v'. r

17. Therefore, Section 7B of the Registration of Titles Act relates to a vesting order on grounds of adverse possession and acquiescence by the registered proprietor or his/her re p rese ntatives. The application has to be made to the Registrar who accordingly notifies the registered proprietor or his or her representative for any objection. This then implies that a vesting order under the section cannot be granted automatically.

- 18. Additionally, to invoke Section 177 of the Registration of Titles Act, under which the application was partially brought, there must have been a recovery of land by the Applicant from the registered proprietor, which is not the case in this instance. The claim under Section 1,77 of the Registration of Titles Act is also untenable since the applicant recovered the suit land from the several registered proprietors but he is legally not the right person to be registered on the tittle of the land in issue because this is Estate property with a different set of legal regime that applies to its management. - 1.9. Primarily, the applicant is claiming an interest in the land in issue only as a child, heir and one of the surviving beneficiaries of a deceased person and not as an adverse possessor. Iam aware that the Applicant made some averments about his possession of the suit land. However, his depositions are insufficient to support an inference of adverse possession. - 20. It suffices to note that the applicant seeks an order, in paragraph [b) of the Amended Notice of Motion, to direct the Respondent Commissioner of Land Registration to eflect a transfer of the certificate of tittle into the Applicant's names so that he can subdivide and distribute the suit properry to all the beneficiaries of the late Merekizadeki Mukasa.

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Nonetheless, a vesting Order is never intended to manage estate 21. property. Estate property is managed under the Succession (Amendment) Act 2022; and in case there is no Will, the Administrator General comes in under the Administrator General's Act Cap 157. The fact that the Succession Registers and Certificates of Succession were closed, that does not mean that the beneficiaries of such Estates cannot administer those Estates once they apply to do so from the relevant offices.

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In conclusion, this court cannot grant a vesting order to the beneficiaries 22. of the affected Estates after the closure of the Succession Registers and Certificates of Succession if they are not legal representatives with either Letters of Administration or Probate. I find that the facts of this application do not justify the invocation of Sections 78, 80, 85 and 177 of the Registration of Titles Act. Consequently, the application is dismissed accordingly. Let each party bear their own costs

.. day of ... $0.6$ ... 2024 Signed, dated and delivered at Kampala this.......

Nabakooza Flavia. K Judge