Namasalwa v Commissioner Land Registration (Civil Miscellaneous Application 5 of 2024) [2024] UGHC 696 (13 June 2024) | Vesting Orders | Esheria

Namasalwa v Commissioner Land Registration (Civil Miscellaneous Application 5 of 2024) [2024] UGHC 696 (13 June 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MPIGI

# **MISCELLANEOUS APPLICATION NO. 005 OF 2024**

### NAMASALWA HENRY....................................

#### **VERSUS**

COMMISSIONER LAND REGISTRATION....................................

## BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

#### Ruling

- The applicant brought the instant application by way of Notice of Motion under 10 Section 167 of the Registration of Titles Act, Section 98 of the Civil Procedure Act and Order 52 Rules 1 and 2 of the Civil Procedure Rules against the respondent seeking orders that: - 1. A vesting order be issued in favour of the applicant in respect of land title comprised in Mpigi, Mawokota, Block 12 Plot 5. - 2. The respondent enters the applicant's name in the register as the registered proprietor of the land. - 3. A special certificate of title be issued in respect of land at Mawokota, Block 12 Plot 5. - 4. Costs of the application be provided for.

The application is supported by an affidavit sworn by the applicant and the grounds briefly are as follows;

- a. That the applicant bought land Block 12 Plot 5 from the late Yosefu Semakobe at a consideration of UGX 800/= on the 16<sup>th</sup> May, 1971 who is currently the registered proprietor of the land. - b. That after the said purchase, the applicant took possession of the land and is still utilizing the same for cultivation and has a residential house on the land. - c. That the late Yosefu Semakobe passed on before the said land was transferred into the name of the applicant. - d. That it is in the interest of justice that this application is granted.

The affidavit in reply was sworn by Kankaka Robert Kizza, a Senior Registrar of Titles in the office of the respondent who stated that whereas the respondent is charged with the statutory duty of keeping the land Register, registration of dealings in land and maintaining the sanctity of the register; it is unable to verify

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the applicant's claims of purchase of the land in issue. That if this court finds that the claims of the applicant are legitimate and grants the application then, the respondent will comply with the court's orders.

Further, that the applicant's prayer for costs against the respondent greatly prejudices the respondent's duties since she has no personal interest in the land, $\mathsf{S}$ the subject of the application save for being the custodian of the Lands Register.

# Representation:

Ms. Esther Nalunkuma appeared for the applicant. No representative of the respondent appeared in court. Only the applicant filed written submissions.

Submissions: 10

It was submitted for the applicant that the vendor Yosefu Semakobe passed on in 1985 before he could effect the transfer of the land to the applicant. That the land was bought by the applicant in 1971 and he has been on the land since then unchallenged and uninterrupted. That he has a residential house on the land and has been using the same for cultivation.

Counsel added that the applicant had applied to the Commissioner land registration to have the same land vested in the name of the applicant and he was advised to proceed to court to prove his case. That the land is still registered in the name of the deceased as per the search certificate and unencumbered. That the applicant has been in occupation of the same since 1971 to date for over 50 years.

Further, that it is trite that before the applicant invokes the inherent jurisdiction of court under Section 98 of the Civil Procedure Act, in an application of this nature, he or she should have applied first to the Commissioner land registration/Registrar who for some reason must have declined to exercise his or her power under Section

- 167 of the Registration of Titles Act. That in the instant case the applicant upon 25 application to the Registrar, he was advised to apply to court for a vesting order. That the whereabouts of the vendor's relatives cannot be traced. Counsel prayed that basing on the above submissions and the annextures to the application the orders sought be granted. - The law: 30

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 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 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.*"

The case of Aida Najjemba v. Ester Mpagi, Miscellaneous Application No. $74/2005$ , lays down the conditions to be satisfied for a vesting order to be issued as follows:

- a. 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. - b. That the purchaser or those claiming under him or her have taken possession of the purchased land. - c. That the purchaser has entered the land and the entry has been acquiesced in by the vendor or his or her representative. - d. 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.

# Resolution:

I have carefully considered the application, the affidavit for and against the application, the submissions for the applicant, and all the documentary evidence 25 on record. The major issue for resolution in this application is whether this application is a proper case for issuing a vesting order?

The applicant applied to have the land transferred into his name but the respondent declined to effect the transfer and advised the applicant to come to court to first prove his case. As rightly submitted for the applicant, it is trite law

- 30 that the applicant before invoking the inherent jurisdiction of this court, in an application of this nature, he or she must have applied first for a vesting order to the Commissioner Land Registration who for some reason must have declined to exercise his or her powers under Section 167 of the Registration of Titles Act. (See: - Mutyabe v. Kayimbye & Another, Miscellaneous Cause No. 40 of 2018, where it 35 was held that; Section 167 of the Registration of Titles Act makes it a procedural prerequisite that applications of this nature must be made to the commissioner land Registration before coming to court).

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The applicant in the instant case bought the land comprising of Mawokota Block 12 Plot 5 from Yosefu Semakobe on the 16<sup>th</sup> May, 1971, a sale agreement was executed to that effect and the same is attached to the application. The sale agreement indicates that the consideration was paid fully and there is no outstanding balance. A search was conducted in the land registry and the search report as attached to the application indicates that Semakobe Yosefu is the registered proprietor having been entered in the register on the 23<sup>rd</sup> day of April 1956 at 1:02pm under instrument No. KLA 3775. The land has no encumbrance. This was also confirmed in the affidavit in reply to the application.

- The applicant upon purchase immediately started utilizing the land and is still on 10 the land to date with even a residential house on the same. The applicant has never been interrupted in his utilization of the land since 1971. He has therefore enjoyed a quiet and peaceful enjoyment of his land. This was also confirmed by the Local council chairperson of the area. However, the transfer to have the title in the - applicant's name could not be effected because the vendor has since passed on and 15 the whereabouts of his relatives are unknown.

It is therefore my finding that the applicant has satisfied all the conditions required before a vesting order can be issued. I accordingly allow this application in the following terms;

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- 1. That a vesting order is issued in favour of the applicant in respect of land title comprised in Mpigi, Mawokota, Block 12 Plot 5. - 2. The respondent is ordered to enter the applicant's name in the register as the registered proprietor of the land. - 3. The respondent is ordered to issue a special certificate of title in respect of land at Mawokota, Block 12 Plot 5. - 4. The applicant is to meet the costs of the transfer and of this application.

I so order.

OYUKO ANTHONY OJOK

JUDGE

13/6/2024