Nanyonga v Commissioner Land Registration (Miscellaneous Cause 15 of 2024) [2024] UGHC 694 (15 July 2024)

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MPIGI

## **MISCELLANEOUS CAUSE NO. 15 OF 2024**

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NANYONGA ANUNCIATA NORA APPLICANT

## **VERSUS**

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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 Registration of Titles Act, Section 98 of the Civil Procedure Act, 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 comprised in Block 182 Plots 28 and 22 Mpigi Mawokota. - 2. The respondent enters the applicant's name in the register as the registered proprietor of the land. - 3. Costs of the application be provided for.

The grounds in support of the application are contained in the affidavit sworn by the applicant and briefly are as follows; 20

- 1. That the applicant and her mother the late Mmere Nampeera Mmeme bought land, Block 182 Plots 28 and 22 on the 24<sup>th</sup> March 1957 from Senfuma Atanansi, Kayondo Nikola, Kyewa Anderea and Musoke Simoni B. K (all deceased). - 2. That the vendors were and still are the current registered proprietors of the above mentioned land as joint tenants. - 3. That the applicant and her late mother after the said purchase took possession of the said land and have been in possession of the same for now over 67 years and the said land is developed with eucalyptus trees, residential houses and the same is being used for cultivation. - 4. That the applicant's mother later passed on in the year 1997 and left the applicant in possession of the same land since then.

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- 5. That the late Senfuma Atanansi, Kayondo Nikola, Kyewa Anderea and Musoke Simoni B. K. all passed on before the said land could be transferred into the applicant and her mother's names. - 6. That the applicant's occupancy has never been challenged for all the time she has existed on the said land.

The respondent made an affidavit in reply through Kankaka Robert Kizza, the respondent's Senior Registrar who inter alia stated;

- 1. That the respondent is the official of government charged with the statutory duty of keeping the land Register, registration of dealings in land and maintaining the sanctity of the register. - 2. That I have been advised by the lawyers from the Office of the Respondent, the advice I verily believe to be true that in an application of this nature, the land must be registered, the applicant should be in actual possession with the entry acquiesced by the vendor and that such vendor should be dead or residing out of jurisdiction or he/she cannot be found. - 3. That the status of the land is that Mawokota Block 182 Plots 22 & 28 are registered in the names of Senfuma Atanansi, Kayondo Nikola, Kyemwa Anderea and Musoke Simoni B. K with no encumbrances. - 4. That the claims of the applicant have to be investigated by this court through visiting locus and in the event court finds that the application raises sufficient grounds that warrant the issuance of the orders sought, the respondent shall comply with the orders given. - 5. That the applicant is seeking for costs against the respondent which greatly prejudices her duties since she has no personal interest in the land, the subject of the application save for being the custodian of the lands register and as such, court should absolve the respondent from costs.

# Representation:

Ms. Esther Nalunkuma appeared for the applicant while Mr. Gowdin A. appeared for the respondent. Only the applicant filed written submissions.

Submissions: 30

> It was submitted for the applicant that she bought the land in issue with her mother in 1975 and upon purchase took possession of the same and has been in occupation for over 67 years and is still on the land to date. That the land is developed with eucalyptus trees, residential houses and also used for cultivation. That the vendors all passed on before the said land could be transferred into the

> applicant's name. And the land is still registered in the names of the vendors with

- 35 - $2$ | Page

no encumbrance.

$\mathsf{S}$

Counsel for the applicant added that the applicant also applied to the respondent through her lawyers to have the said land vested into her name and was advised to apply to court for a vesting order. That a search report indicates that the land has never been transferred and is still in the names of the vendors. A sale agreement

$\overline{5}$ is attached to the application whereof the full purchase price was paid and the LC1 chairperson confirms that the applicant and her mother have been on the suit land since 1957 unchallenged. Counsel added that the whereabouts of the vendors' relatives are unknown

The law:

Section 167 of the Registration of Titles Act provides that: 10

> "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:

$5$

I have carefully considered the application, the affidavit for and against the application, the submissions for the applicant, and all the documentary evidence 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 on the $17^{th}/04/2023$ applied to have the land transferred into her name but the respondent declined to effect the transfer and advised the applicant to come to court to first prove her case.

As rightly submitted for the applicant, it is trite law that the applicant before invoking the inherent jurisdiction of this court in an application of this nature, he 10 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 was held that; Section 167

of the Registration of Titles Act makes it a procedural prerequisite that applications 15 of this nature must be made to the commissioner land Registration before coming to court).

In the affidavit in reply to the application under paragraph 5 the deponent stated that the status of the land was that Mawokota Block 182 Plot 22 & 28 are registered in the names of Senfuma Atanansi, Kayondo Nikola, Kyemwa Anderea and Musoke 20 Simoni B. K with no encumbrances. According to annextures A and B which are the duplicate certificate of titles, the respective plots were registered under instrument No. KLA 6501 on 3/12/1956 into the above names as the registered proprietors.

- The applicant is said to have been on the land for over 67 years without being 25 challenged by anyone. The applicant attached to the application the death certificate of her mother. A search was conducted in the land registry and according to the search certificate dated the 17<sup>th</sup> day of April, 2024 as attached to the application the registered proprietors are indicated as Senfuma Atanansi, - Kayondo Nikola, Kyemwa Anderea and Musoke Simoni B. K with no encumbrances. 30 The registered proprietors are the ones that sold to the applicant and her late mother. The applicant stated that the vendors were paid the full consideration and there is no outstanding balance. That upon purchase she immediately took possession of the land to date. - 35 According to the submissions for the applicant she is said to have enjoyed a quiet and peaceful enjoyment of the land without any interferences since the date of purchase of the same in 1957 to date. This was also confirmed by the Local council

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chairperson of the area. However, the transfer to have the title in the applicant's name could not be effected by the respondent because the vendors have since passed on and the whereabouts of their relatives are unknown.

During the locus visit the applicant was found in occupation of the land, with a residential house, eucalyptus trees and was using the same for cultivation with $\mathsf{S}$ some cassava plants. It was also confirmed that there are no wrangles over the land as was stated by the LC1 Chairperson of Kammengo A.

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; 10

- 1. That a vesting is issued in favour of the applicant in respect of land comprised in Block 182 Plots 22 and 28 Mpigi Mawokota. - 2. The respondent is ordered to enter the applicant's name in the register as the registered proprietor of the land. - 3. The applicant is to meet the costs of the transfer and of this application.

I so order.

OYUKO ANTHONY OJOK 20 JUDGE 15/7/2024

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