Nakazzi v Commissioner Land Registration (Misc Cause No. 82 of 2022) [2022] UGHCLD 238 (14 December 2022)

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

## **MISCELLANEOUS CAUSE NO.082 OF 2022**

$\mathsf{S}$ NAKAZZI ROBINAH::::::::::::::::::::::::::::::::::::

## **VERSUS**

COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

## Before: Lady Justice Alexandra Nkonge Rugadya.

#### Ruling.

- $10$ The applicant brought this application by way of notice of motion brought this application under Section 36 (1) (a), (b), (c), & (e), (2), (3), (4), (5) & (7), Section 38 of the Judicature Act cap. 13, Section 98 of the Civil Procedure Act cap. 71, Rules 3 (1), (2), 4 & 6 of the Judicature (Judicature Review) Rules 2009, the Judicature (amendment) Rules 2002, and the Judicature (Judicial **Review**) (amendment) Rules 2019, seeking the following orders; - 15 1. The decision of the respondent dated 4<sup>th</sup> March 2021 cancelling the certificate of title to land comprised and known as Kyadondo Block 265 plot 339 land at Bunamwaya in the names of Ssemanda Joseph (deceased) be called and quashed for having faulted the procedures laid down by the law; - 20 2. A prerogative order of mandamus doth issue requiring the respondent to restore the names of the late Semanda Joseph on the register of the title to the land comprised and known as Kyadondo Block 265 plot 339 land at Bunamwaya; - 3. A prerogative order of prohibition doth issue against the respondent restraining him to implement the impugned findings of the police report which allegedly confirmed that the said Kasalina Nkinzi did not sign the purported transfer instrument that was used to transfer the said title; - 4. Costs of the application be provided for. - 30 The application is supported by the affidavit of the applicant, Ms. Nakazzi Robinah a widow of the late Joseph Semanda. She states that she is one of the 7 (seven) biological children, and one of the beneficiaries of the late Joseph Ssemanda (hereinafter referred to as the 'deceased') who was the registered proprietor of land comprised and known as **Kyadondo Block 265 plot 339 land at Bunamwaya** (hereinafter referred to as the 'suit land') having been registered on 15<sup>th</sup> July 2005 at 4:15 - 35 pm under instrument no. KLA277164.

That while on 4<sup>th</sup> March 2021 the late Joseph Ssemanda's registration was cancelled by the respondent on grounds of forgery based on the fact that the late Kasalina Nkinzi did not sign the transfer form for his onward transfer and registration of the land into his name, the only known meeting summoned by


the respondent was on 28th December 2020, whcn the deceascd had already succumbed to COVID-19 and had bcen buried on 21sr Dccember 2020.

In addition, that the above date also fell within thc timeline when a ban on all transactions on the register had been issued by thc then Minister of Lands I{ousing and Urban Development on l6th April 2020 and although the same was a working day, it also fell within the Christmas break period, which was volatile owing to threat and spread of COVID- 19.

That the respondcnt did not follow thc duc proccss f<rr canccllation of ccrtificates of title laid down under Sectio'r 9I of the Ia d. Act, and Sections 776 & 177 of the Reglstratlo't o, ?lltles Act and that while thc dcceased was not heard beforc thc title was canccllcd, thc rcspondcnt also had no powers to canccl thc questioncd title on thc ground of fraud or forgery.

Further, that upon conducting a search at the Lands Registry, the applicant discovered that the respondent cancelled thc title of its own volition as no complaint had becn recorded, thus the respondcnt's actions wcre ultra vircs.

That whilc this application discloses sufficient reason for the court to cxcrcise its discretion to call for and quash the respondent's dccision to cancelling thc certilicatc of title of the suit land so that justicc is served, it is in the intcrest ofjustice, the respondcnt's canccllation ordcr of the late Ssemanda's name from the entire suit land be set aside, and the deceased's name is rcinstated in the register, 15

That the applicant is not guilty of any dilatory conduct in bringing this application as there has been no inordinate delay, and that if this application is not allowed to maintain the sratus qLo, the applicant will be substantially and irretrievably prcjudiced, and that this application has been brought in good faith. That it is fair, just, and cquitable that this application is allowed.

The respondcnt was scrved with the application, and it acknowledged receipt of the same but did not lile a rcply to defend thc application. This matter, thereforc, proceeded ex pdrte, alter this court was satisfied that the respondent had been duly served with thc court proccss.

## 25 Rep'esentatlo :

The applicant was rcpresentcd by M/s Kaggua & Pa:,.t',,ers Co. Adoocates. Counsel also flcd writtcn submissions in support of thc application as directed by this court.

# Co,aslderatlo,a ol the o,p.pllcatlo,a bt cou'.t.

30 I have carefully read the pleadings, evidence and submissions of the applicant, the details of which are on court record, and which I have takcn into account in considering whether or not tiis application me rits the prayers sought.

The applicant filed this application as the widow of the dcceascd rcgistercd proprietor of thc land compriscd in B,['flnamudgd, Block 265, plot 335 which was cancellcd by the rcspondent and that she and 6 childrcn of thc late Joseph Semanda were bcncficiarics under thc deceascd's estate.

It is now scttlcd that a bcncficiELry o[ an cstatc can suc to protcct his or hcr intcrcst bcforc obtaining Lcttcrs of Administration. {See; Isiael Kabwa versus Martln Baaoba S. C. C. A. No.52 of 1995). Rule 3A of the Judlcature (Jud.lclal Reoleu) (Arne d.mentiRules Sf 32 oJ2OI9 provides that; 35

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# "Any person who has a direct or sufficient interest in a matter may apply for judicial review."

The applicant has through her affidavit evidence shown that she has direct sufficient interest in the suit land as a beneficiary of the late Joseph Ssemanda and that therefore has the locus standii to file this application which is filed under section 36 (1) of the Judicature Act Cap 13.

It provides for the power of the High Court to issue orders under judicial review: a mandamus, requiring any act to be done; an order of prohibition, prohibiting any proceedings or matter; or certiorari, removing any proceedings or matter to the High Court. The application may be be filed under **Rule 3 (1) and (2)** of the Judicature (Judicial Review) Rules SI 11 of 2009.

10 In order to succeed in an application for judicial review, the court in the case of **Pastori vs. Kabale** District Local Government Council and Others [2008] 2 EA 300 stated that an applicant ought to prove that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety

The court went on to state as follows:

$\bullet$

$\mathsf{S}$

cancelling the title.

- 15 ... Illegality is when the decision-making authority commits an error of law in the process of taking or making the act... Irrationality is when there is such gross unreasonableness in the decision taken or act done, that no reasonable authority, addressing itself to the facts and the law before it, would have made such a decision... Procedural Impropriety is when there is a failure to act fairly on the part of 20 the decision-making authority in the process of taking a decision. The unfairness may be in non-observance of the Rules of Natural Justice or to act with procedural fairness towards one to be affected by the decision. It may also involve failure to adhere and observe procedural rules expressly laid down in a statute or legislative Instrument by which such authority exercises jurisdiction to make a decision.' - 25 In the case before this court, the applicant brought this application for judicial review challenging the respondent's decision to cancel the late Joseph Ssemanda's certificate of title for the suit land comprised in Kyadondo Block 265 plot 339 land at Bunamwaya.

The applicant states that the due process for cancellation of titles as laid down under **Section 91 of** the Land Act and the Registration of Titles Act and that while the respondent had/has no powers to the title on grounds of fraud, the respondent's actions were ultra vires owing to the fact that there was no complaint of any sort on the record and that the respondent acted on its own volition in

In addition, that the only known meeting that the late Joseph Semanda was summoned to attend happened to take place on 28<sup>th</sup> December 2020 when the deceased had passed on and had been buried,

35 and it also fell within the timeline when a ban on all transactions on the register had been issued by the then Minister of land, Housing and Urban Development.

An action or decision may be illegal on the basis that the public body has no power to take that action or decision or has acted beyond its powers. (See: Thugitho Festo vs. Nebbi Municipal Council (Arua) HCMA No. 15 of 2017).

3 autour

Similarly, whcn a decision-making authority commits an error of law in thc proccss of taking the decision or making the act, thc subjcct of the complaint. Acting withoul jurisdiction or ultra vires or contrary to thc provisions of thc Law or its principlcs arc instances of illcgality. /See: OJd.'lgole Po,ttlclq, & 4 O'rs vs. Attoneg Generq.l HC. IIC No. 3O3 oJ 2013)

5 ln thc casc .rf Hlldd Wll,so Ndr,rtlsoke & 3 Ors u Oualla's Hotne Investme[t Tl-ust (E. A) Ltmited Suprer,fte Coutt C,l,il Appeal No. 75 o! 2077, thc Suprcmc Court hcld that thc commissioncr of land registration docs not havc powcrs to canccl a ccrtificatc of titlc on thc ground of fraud.

Evidence in the instant application shows that thc rcspondcnt cancelled the certificate of title on grounds of forgery of a signaturc on the transfer instrument. The decision to amend the register was made by the respondent on 4rh March, 2021.

The applicant has proved that the respondent cxcrciscd powers that he did not possess at the time of reaching the decision to cancel the applicant's certificate of title. The respondent's actions were, thereforc, illegal, improper and irregular. But also secondly, the decision was taken before according the family of the late Semanda an opportunity to be heard. As such thcrefore, it was made contrary to the rules of natural justice.

Court thereforc finds this a fit and proper case for the exercise of its discretion to grant the remedies below sought by the applicant.

### Remedlea.

The appljcant's prayer is for an order quashing thc rcspondent dccision. In the casc of John Jet

Twnuebdze v. Makerere Unluersltv Councll and others (Cttttl Appllcatlon No. 7A o! 2OOS), Ag, Justlce Remmg Kasule (as he thea uas) dclincd <:erlrorai as a prcrogativc writ issucd to quash a dccision whir:h is ullro uire.s or vitiatcd by an error on thc facc of thc rccord. 20

In the casc of R v Lord PTeslde^t ol the PriW c,o,[ncll, ex pdrte Page [1993] AC 6a2 Lord. Brounewllkl'lso court noted that thc fundamcntal principlc(of judicial rcvicw is that thc courts will intervcnc to cnsure that thc powcrs of public dccision-making bodies are excrciscd lawfully.

In all cases this intervention is based on the proposition that such powcrs have been conferred on the decision-maker on the underlying assumption that the powers are to be exercised only within the jurisdiction conferred, in accordance with fair proccdures.

If the decision maker exercises his powers outside the jurisdiction conferred, in a manner which is procedurally irregular or unrcasonable, he is acting ultra-vires his powers and therefore unlawful. 30

The applicant in this case has provcd that the rcspondent reachcd his decision irregularly and improperly by cancelling the ccrtificate of title of the suit land based on fraud. The respondent therefore acted ultra vires in reaching thc dccision to cancel the certificate of title.

A prerogative order of certiorari is hereby issued against the respondcnt, quashing and setting aside the dccision of thc rcspondent cancclling the certificate of title for land comprised in Kgadondo Block 265 plot 339 lo;rd. at Bu qmutqga. 35

The applicant prayed for an ordcr of prohibition restraining thc respondent and its agents from implemcnting the decision of thc rcspondent. An ordcr for the prohibition is issued when a decision or

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action is anticipated. (Kampala University-v-National Council for Higher Education MC No. 053 OF 2014).

In the instant case, the decision to cancel the applicant's late father's certificate of title has been concluded. However, it can be anticipated that the respondent and its agents would conclude further transactions relating to the land which would further prejudice the applicant's interests.

Therefore, it would be prudent to prohibit any further actions that might be taken to implement the decision that was made ultra vires. An order for prohibition is therefore issued against the respondent, its agents, officials from implementing the findings and orders of the respondent in so far as they affect the applicant's interest.

- 10 The applicant further prayed for an order of mandamus compelling the respondent to reinstate the late Semanda Joseph on the register on the certificate of title; An order of mandamus is in effect a command ordering the respondent to do or implement a certain action. An order of mandamus has been defined in Halsbury's Laws of England, 2001, 4<sup>th</sup> Ed, Vol. 1(1). para. 119 at p.268 as follows: - "A command issued by the High Court, directed to any person, corporation or inferior 15 tribunal requiring him or them to do some particular thing specified in the command and which appertains to his or their office, and is in the form of a public duty".

Having established that the decision to cancel the late Semanda Joseph on the register certificate of title was ultra vires and reached at improperly and irregularly without according any hearing by the affected parties, an order of mandamus is hereby issued, ordering the respondent to reinstate the late Joseph Semanda on the certificate of title.

A permanent injunction is hereby issued restraining the respondent and its agents from implementing the orders of the respondent in so far as they affect the applicant's husband's title.

No orders as to costs.

25 I so order.

$\mathsf{S}$

Alexandra Nkonge Rugadya. Judge 14<sup>th</sup> December, 2022.