Nsubuga Edward Senvewo and Others v Ngwambwa Ruta and Others (Civil Appeal 30 of 2024) [2025] UGHC 449 (20 June 2025)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT LUWERO**

#### **CIVIL APPEAL NO. 0030 OF 2024**

## **1. NSUBUGA EDWARD SENVEWO**

## **2. KIZITO KHALID ::::::::::::::::::::::::::::::: APPELLANTS**

- **3. KIGGWE SENDEGE HENRY** - **4. ZANSANZE JANNET**

#### **VERSUS**

# **NGWAMBWA RUTA AND 31 OTHERS :::::::::::::::::::::::::: RESPONDENT**

#### **RULING**

#### **Background**

This is Appeal was commenced under Section 88 (12) formerly 91 (10) of the Land Act seeking an order setting aside the 32nd Respondent's (Commissioner Land Registration) report on the public hearing in respect to the land comprised in Bulemezi Block 57 Plots 896, 897 and all subdivisions therefrom, an order directing the 32nd Respondent to conduct a fresh investigation in respect to the two parcels of land measuring 167 acres and 397 acres formally comprised in the estate of the late Suleiman Kiwala.

During the hearing of the Appeal on the 19th day of March 2025, Counsel for the 32nd Respondent indicated to the Court that the 32nd Respondent intends to revisit her decision issued in the report dated 2nd October 2024 and consequently prayed for two weeks to revisit the said decision.

Counsel for the 1st and 30th Respondents objected to the request by the 32nd Respondent for time to revisit her decision issued in the report dated 2nd October 2024. Counsel submitted that the effect of giving the 32nd Respondent an opportunity to furnish Court with another report by conducting fresh investigations upon which the new report will be based will be illegal, will ignite a multiplicity of suits, will offend the functus officio rule and the 32nd Respondent will be acting without jurisdiction by handling a matter whose subject matter involves fraud and is already before this court.

It is on this basis that this court will determine this preliminary objection raised by Counsel for the 1st and 30th Respondents before I can continue to hear the appeal on its merits.


### **Representation**

The Appellants were represented by Denis Bwire of MS. Mbeeta, Kamya & Co. Advocates, the 1st and 30th Respondents were represented by Iga Stephen of S. K. Kiiza & Co. Advocates while the 32nd Respondent was represented by Bernadine Nakasagga and Joshua Tumwine both holding brief for Moses Sekitto from the Commissioner Land Registration.

#### **Determination of the Point of Law**

The central issue surrounding this point of law is whether the court should accept the request by the 32nd Respondent to revisit its decision regarding the land comprised in Bulemezi Block 57, Plots 896 and 897, and all subdivisions thereto, dated 2nd October 2024, which is the subject of the Appeal.

#### Submissions by Counsel for the 1st and 30th Respondents

Counsel for the 1st and 30th Respondent submitted that the request to permit the 32nd Respondent to revisit her decision by conducting a fresh investigation upon which she will furnish the Court with another Report prior to the hearing of the Appeal, is illegal abinitio because the Appellants and the 32nd Respondent would be allowed to consensually usurp the appellate jurisdiction of the Court to prematurely dispose of the Appeal. Section 91(10) of the Land Act does not allow the Commissioner of Land Registration to handle appeals arising from her decisions; instead, the law bestows the appellate jurisdiction to the Court to determine appeals against the decisions of the Commissioner of Land Registration. Furthermore, counsel submitted that it is now settled law that parties cannot concede to reverse a judicial decision because it is the appellate court that is bestowed with the jurisdiction to reverse such decisions after hearing the appeal, and further, that issues of law cannot be subject to agreements. As such, the attempt by the Appellants and the 32nd Respondent to concede that the decision of the 32nd Respondent was erroneous and should be revisited by her is an illegality that should not be condoned by the Court.

Counsel further submitted that the 32nd Respondent has no jurisdiction to entertain a complaint whose subject matter involves fraud and is already being adjudicated upon before the Court. Counsel submitted that the elements being challenged by the Appellants in this Appeal cover aspects of fraud allegedly committed by the Yusuf Lubulwa and Asumani Bawalankedi, whose letters of administration were alleged by the Appellants to have been found by the 32nd Respondent to be non-existent.

Counsel further submitted that the 32nd Respondent having made a report after having conducted a hearing is now functus officio because it is settled law that once a final decision is made by a judicial or quasi-judicial officer or entity, such a decision is susceptible to appeal and cannot be reconsidered by the same judicial or quasi judicial entity that rendered it. This is because the judicial or quasi-judicial entity is not empowered to vary or change its decision.

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Counsel also stressed that the 32nd Respondent cannot be allowed to be the judge of her own cause. Since the 32nd Respondent already made her decision concerning the complaint that was made by the Appellants and made a report which is the subject of this Appeal, the Court cannot allow her to amend that report. Otherwise, the court would be allowing the 32nd Respondent to be the judge in her own case.

Finally, counsel for the 1st and 30th Respondent submitted that allowing the 32nd Respondent to amend her report will only lead to a multiplicity of suits from the parties that will remain discontented.

## Submissions by Counsel for the Appellants

Counsel for the Appellants submitted that the office of Registrar of Titles has a right to determine cases on the grounds of illegality or error without referring the matter to court. The 32nd Respondent by its pleadings identified an irregularity and sought leave to rectify the same however the 1st and 30th Respondents being the beneficiaries of the error and/or irregularity cannot be seen in the eyes of law and equity to curtail the inherent powers of court exercised with the view of attaining the ends of justice.

Counsel further submitted that the principles of natural justice demand that either party should be impartially heard on their respective cases. It is not stated anywhere that one party can argue the other's case. The 1st and 30th Respondents cannot stop the 32nd Respondent from conceding to a claim which is obvious.

Counsel further submitted that the subject matter of this appeal involves illegalities and errors complained of by the Appellants before the 32nd Respondent which led to the decision of the 32nd Respondent that is now under appeal. Since the decision is being contested, the investigations undertaken by the 32nd Respondent remain incomplete and are subject to scrutiny. Therefore, the 32nd Respondent's request to revisit its decision does not imply a determination of fraud but rather reflects its mandate and powers under section 88 of the Land Act. The question of whether the 32nd Respondent's review of the report would resolve this appeal cannot be addressed at this stage, as the 32nd Respondent may uncover matters to be determined following conclusive investigations.

#### Submissions in rejoinder by Counsel for the 1st and 30th Respondents

Counsel went on to submit that much as the office of the Registrar of Titles has the jurisdiction to determine cases limited to actions of errors or illegalities, the law does not bestow on his office the jurisdiction to make corrections in their own decisions or errors, whenever they wish. The law instead bestows the appellate jurisdiction on the Court to hear and determine appeals against the decisions of the Office of the Registrar of Titles/ Commissioner Land Registration. It therefore, follows, that the 1st and 30th preliminary objections have merit because the Office of the Registrar has no jurisdiction to make corrections of errors made in her own decisions.


Counsel also submitted that whereas the Court has wide inherent powers, they are not boundless and cannot be exercised in a way that contradicts or violates existing laws or legal principles. These powers exist to ensure the proper functioning of the court and to administer justice fairly but they must operate within the bounds of the legal framework. The court cannot use its powers in the way the Appellants and 32nd Respondent want because doing so would amount to circumventing existing laws to create a situation which the law disregarded.

On the issue of a fair hearing, counsel submitted that when a party concedes to an appeal, they acknowledge that the appeal has merit and the outcome is likely to be in favor of the Appellant which can lead to various consequences including the court accepting the concession, potentially hearing the appeal and setting aside the original judgment or decision. It is important that the Court should make a final decision in respect of the appeal, allowing the appeal with attendant orders. The Court cannot instead make interlocutory orders because of the concession.

Counsel reiterated his submissions that the prayer by the 32nd Respondent to revisit her decision by conducting a fresh investigation before the hearing of the appeal is void abinitio.

## Decision of the Court

I have taken into consideration the submissions by the Appellants and the 1st and 30th Respondents. The fundamental issue before this court is whether the 32nd Respondent who is the Commissioner Land Registration should be allowed to revisit her decision which is the subject of this Appeal, before the Court hears and determines this Appeal.

It is settled law that the Commissioner of Land Registration is vested with special powers to alter or cancel certificates of title and the circumstances under which those powers can be exercised are laid out under section 88 of the Land Act which states;

## *"88. Special powers of Commissioner*

*(1)Subject to the Registration of Titles Act, the Commissioner shall, without referring a matter to a court or a District Land Tribunal, have power to take such steps as are necessary to give effect to this Act, whether by endorsement or alteration or cancellation of certificates of title, the issue of fresh certificates of title or otherwise.*

*(2)The Commissioner shall, where a certificate of title or instrument*

*(a)is issued in error;*

*(b)contains a wrong description of land or boundaries;*

*(c)contains an entry or endorsement made in error;*

*(d)contains an illegal endorsement;*


*(e)is illegally or wrongfully obtained; or*

*(f)is illegally or wrongfully retained;*

*give not less than twenty-one day's notice, of the intention to take the appropriate action, in the prescribed form to any party likely to be affected by any decision made under this section."*

From the above provision, it is clear that where the Registrar of Titles is presented with convincing evidence that a certificate of title was issued in error, has an entry or endorsement made in error, contains an illegal endorsement or was wrongfully obtained or retained, he/she may alter or cancel that certificate of title. This position is laid out in the Supreme Court decision of **Hilda Wilson Namusoke and others V Owalla's Home Investment Trust (E. A) Ltd Civil Appeal No.15 of 2017**.

It is not disputed that the Appellants, through their lawyer M/S Mbeeta Kamya & Co. Advocates made a complaint to the office of the 32nd Respondent on grounds that a public hearing be made as regards to the illegal certificates of title issued on Bulemeezi Block 57 land at Manyama. It is further undisputed that a public hearing was held and a decision was made by the 32nd Respondent on 2 nd October 2024, as is evidenced in *Annexture C* to the Affidavit in Support of this Appeal.

Being dissatisfied with the decision of the 32nd Respondent, the Appellants brought this appeal against that decision on 2 nd October 2024. Now, the 32nd Respondent has made a prayer to this Court seeking that she be allowed to revisit her decision and have it furnished to court before the appeal can be heard which prayer has been objected to by the 1st and 30th Respondents on grounds that the 32nd Respondent is now functus officio with regard to its decision.

The functus officio doctrine dictates that once a judicial officer has made a decision, he or she is deemed to have exhausted his or her powers and he or she cannot act again on the same. As soon as judgment is pronounced by the court, the court becomes functus officio and ceases to have any more control over the case. See **Paul Nyamere V Uganda Electricity Board Civil Appeal No. 55 of 2008**. It should also be noted that the principle does not operate strictly in the context of a tribunal or a court of law but also extends to administrative authorities which may include the Commissioner of Land Registration. See **Registered Trustees of Ker Bwobo Land Development Trust Vs Nwoya District Land Board (Misc. Civil Application No. 013 of 2018) [2019] UGHCCD 155 (30 May 2019).**

Therefore, much as the Commissioner Land Registration has powers to correct an error or mistake in the land register pursuant to Section 88 of the Land Act, where an appeal has been commenced in respect to the decision of the Commissioner Land Registration under Section 88 of the Land Act, the Commissioner Land Registration becomes functus officio. The matter then fully falls within the jurisdiction of the Courts of law. So, where the decision of the Registrar of Titles has been appealed, it is the court that has the power and mandate to direct the Commissioner of Land Registration to carry out a fresh investigation or hold another public hearing. This order can only be issued by the court after it has heard the appeal conclusively or after a judgment on admission has been made. If the Appellants and the 32nd Respondent so wished that the Court should enter judgment based on the concession of the 32nd Respondent, they should have moved the Court to enter a judgment on admission pursuant to **Order 13 Rule 6 of the Civil Procedure Rules,** which states;

*"Any party may at any stage of a suit, where an admission of facts has been made, either on the pleadings or otherwise, apply to the court for such judgment or order as upon the admission he or she may be entitled to, without waiting for the determination of any other question between the parties and the court may upon the application make such order or give such judgment as the court may think just."*

The intent of the above provision is to enable a party to obtain a speedy judgment in accordance with the admission of the other party and also prevent frivolous defenses from standing in the Appellant/Applicant's way of obtaining an expeditious judgment. **See Uganda Pulp and paper Mills Ltd Vs Katon Manufacturers Ltd and others Civil Suit No. 004 of 2022.**

However, even when the Court can exercise the mandate given to it under Order 13 Rule 6 of the Civil Procedure Rules, the admission must be clear and unambiguous. Where the court is satisfied that the case involves complicated questions that cannot be conveniently resolved, it should decline to exercise its discretion in entering a judgment on admission (**See Brian Kaggwa Vs Peter Muramira CACA Appeal No. 26 of 2009)**. In the instant case, had the Appellants and the 32nd Respondent applied for judgment on admission, I would have found it very difficult to grant it, given the complexities noted about the case, such as the subject matter of the suit, the issues surrounding the purported fraudulent activities that may have taken place, and the number of parties who may be affected by the decision. Therefore, in the absence of a judgment on the admission, this court cannot grant the 32nd Respondent leave to amend the Report, which is the subject of the appeal, before the appeal is heard and determined by this Court.

Further, I also agree with the submission made by counsel for the 1st and 30th Respondents that allowing the Commissioner of Land Registration to revise her decision before this court delivers its ruling on the matter would mean that the Commissioner Land Registration has been given the opportunity to be the judge in the case against her. This is because the 32nd Respondent has had the opportunity to look at the appeal challenging her decision and its grounds and has thereafter conceded that a mistake or error, as the case may be, was made on her part in her decision. So, the prayer to revisit her decision is most likely aimed at curing the error, which may be the crux of the appeal before this court.


While the Commissioner Land Registration may concede that the decision was erroneous, the court cannot simply act on that concession and allow a fresh investigation and public hearing to take place, especially where there are other parties, such as the co-respondents, who may have relied on that decision and continue to defend its correctness. Doing so would not only prejudice the co-respondents, who are entitled to a fair hearing, but would also pre-empt the judicial process. The Court must independently evaluate the legality, propriety and merits of the Registrar's decision through an examination of the evidence and full submissions from all parties.

The mere concession by the Registrar that a mistake may have occurred is not in itself conclusive proof of error. The Court is duty bound to conduct a fair and impartial inquiry, and to afford all parties, particularly those opposing the application, an opportunity to be heard. This duty to accord all parties a fair hearing is enshrined under Article 28 (1) of the Constitution of the Republic of Uganda. In the case of **The Registered Trustees of Ker Bwobo Land Development Trust Versus Nwoya Miscellaneous Application No. 13 of 2018,** the Court held;

*"Literally translated audi alteram partem means "hear the other party." It is an elementary notion of fairness and justice that a decision should not be made against a person without allowing the person concerned to give his side of the story. Put in the context of administrative decision making, the audi alteram partem principle requires that a decision affecting a person's rights or his or her legitimate expectations of receiving a benefit, advantage or privilege should only be made after hearing first from that person and taking into account what he or she has said. The main purpose of the audi alteram partem rule is to ensure accurate, informed and fair decision-making that inspires public confidence in administrative action. An administrative agency which has the responsibility or power to take any administrative action which may affect the rights, interests or legitimate expectations of any person must act in a fair manner."* See **Dr. Lam Lagoro v Muni University (Miscellaneous Civil Cause No 0007 of 2016).**

Any reversal of the Registrar's decision must therefore be grounded on findings made after trial, not on unilateral concessions or requests for correction. Should the court be convinced that indeed there was an error of the part of the Commissioner Land Registration when reaching her decision, the court will order appropriate remedies as the case may require.

Before I take leave of this, I did note the submissions by the Appellant's counsel and the 1st and 30th Respondents' Counsel concerning the fact that the Commissioner Land Registration did not have jurisdiction to entertain the matter since it involved aspects of fraud. I have deliberately refrained from making my ruling on this issue because it goes to the core of the merits of this case. As such, I cannot make a ruling on it as it shall pre-empt the hearing of the application.


In conclusion, for the foregoing reasons, the prayer by the 32nd Respondent to revisit her decision before the hearing of this Appeal is denied, and I shall proceed to determine this Appeal on its merits. The costs shall be in the cause.

I so order.

**.........................................................................................**

### **FARIDAH SHAMILAH BUKIRWA NTAMBI**

# **AG. JUDGE**

Delivered on ECCMIS this 20 th day of June 2025