Sendagire and Another v Mugisa and Another (Misc. Cause No. 4 of 2022) [2022] UGHCLD 249 (8 December 2022)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA MISC. CAUSE NO.04 OF 2022**

#### **1. SENDAGIRE HUDHAIR**

### **2. HARORA HAKIM :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

#### **1. ABDUL MALIK MUGISA 2. COMMISSIONER LAND REGISTRATION :::::::::::::::::::: RESPONDENTS**

### *Before: Hon. Justice Byaruhanga Jesse Rugyema*

### **RULING**

- [1] The Applicants brought this application under **SS.167** and **178 of the RTA, S.98 CPA** and **O.52 r.1 & 3 CPA** seeking the following orders; - a) That a vesting order doth issue vesting the land comprised in **LRV 1507/21 Folio 21, Bugahya County, Block 6, plot 1061 land measuring 518.020 ha at Kabatendule estate-Hoima District** in the names of **Sendengire Hudhair** and **Harora Hakim.** - b) That court issues an order directing the 2nd Respondent to register the Applicants as the new registered proprietors and court also vacates all encumbrances by the 1st Respondent or anyone claiming under him. - c) That costs of this application be provided for. - [2] The grounds of the application are set out in the affidavit in support deposed by the Applicant **Sendagire Hudhair** which briefly are; - a) The 1st Applicant purchased the suit property from the 1st Respondent following a consent judgment and Decree in **Civil Suit No.0023 of 2017** in the High court of Uganda holden at Masindi. - b) The 1st Applicant took possession of the land and its certificate of title and is still in possession to date utilizing the land for both residential purposes and rearing of animals and growing crops.

- c) That on the 5th day of July 2022, the 1st Applicant bought the suit land from the 1st Respondent and the said land is registered in the names of **Noah Kasigwa Byenkya Atwooki** but by a consent judgment and a decree in **C. S No.0013 of 2017, Abdul Malik Mugisa Vs Noah Kasigwa Byenkya Atwooki & Anor,** under **clause 5,** the 1st Respondent was granted permission to secure a buyer for 2 square miles. - d) That the 1st Applicant based on the consent judgment and decree purchased the whole land from the 1st Respondent by a land sale agreement dated 5/7/22. - e) That by Memorandum of undertaking, the 1st Respondent agreed that a vesting order be granted in favour of the 1st and2nd Applicants so as to secure payment of the whole purchase price. - f) That the transfer of the land has not yet been executed because the registered proprietor, **Noah Kasigwa Byenkya,** the 1st defendant in **C. S No.23/2017** in the High Court of Uganda Holden at Masindi passed away and thus transfer instrument in favour of the Applicant cannot be executed thus this application for a vesting order. - [3] Both the Respondents were duly served with court process as per the affidavit of service on record dated 22/11/2022, though the 1st Respondent filed an affidavit in reply, the 2nd Respondent failed and or ignored to file one.

# **Counsel legal representation**

[4] The Applicant was represented by **Mr. Wandera Hamuza** while the Respondent was represented by **Ms. Akuguzibwe**. Both counsel filed their respective written submissions for consideration in the determination of this application. The 1st Respondent did not object to the application.

# **Issue No.1: Whether the Applicants are entitled to a vesting order.**

[5] The conditions for granting a vesting order are set out in **S.167 RTA** which provides as follows;

### *"167. Power of registrar to make a vesting order in cases of completed purchase*

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 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 been 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 the payment of such an additional fee in respect of assurance of title as he or *she may think fit..."*

- $[6]$ In Aida Najjemba Vs Ester Mpagi, CACA No.74/2005, it was held "that there are 4 conditions provided under the section in order for" the registrar to exercise his powers: - 1. The land must be registered under the provisions of the Registration of Titles Act and the purchaser must have paid the whole of the price to the vendor. - *2. The purchaser or those claiming under him or her have not taken* possession of the purchased land. - 3. That the entry into possession of the purchased land has been acquiesced by the vendor or his or her representative. - 4. The transfer of the property has not been executed because the *vendor is dead or is residing out of jurisdiction or he /she cannot be found."* - $[7]$ The uncontroverted evidence of the Applicants is that the suit land is under the operation of the RTA in the names of **Noah Kasigwa Byenkya Atwooki** and the matters concerning the suit land were concluded and settled by a consent vide Masindi H. C. C. S No.23 of 2017 in which the $1<sup>st</sup>$ Respondent sold his interest in the suit land to the $1<sup>st</sup>$ Applicant as per the memorandum of understanding on record dated $10/10/22$ . The M. O. U and the consent decree settles the requirement for full payment of the purchase price as the $1^{st}$ and $2^{nd}$ Applicant agreed that a vesting order issues in favour of the $2^{nd}$ Applicant, as the vendor's representative, and the $1^{st}$ Applicant as the purchaser. Lastly, the $1^{st}$ Applicant's further uncontroverted evidence is that he has been in possession of the suit property ever since the execution of the sale

agreement and continues to be in possession with a residential house thereon and rearing of animals. The registered proprietor **Noah Kasigwa Byenkya** passed away and thus transfer instruments in favour of the Applicants could not be executed.

[8] In conclusion, though the reading of **S.167 RTA** envisages the Registrar of titles as the person/officer which under the law is clothed with the statutory authority to vest land in persons who fulfill the conditions stipulated there under, it is settled by the court of appeal in **Aida Najjemba Vs Ester Mpagi (supra)** as follows;

*"Other complaints that learned counsel raised on this ground were that that the application was misconceived and premature, that it should have been made before the registrar in the first instance and therefore the trial judge ought not to have granted it… The issue to resolve is whether the application before the High Court for a vesting order was properly filed under the provisions of section 167 (supra). I agree with counsel for the Appellant that an application for a vesting order must be made to the registrar of titles. However, the High Court has unlimited jurisdiction in all matters. The learned judge was right to grant a vesting order under section 167 (supra)."*

[9] From the foregoing and the affidavit evidence on record, this court is satisfied that the Applicants meet all the set conditions for the grant of a vesting order.

### **Issue No.2: What remedies are available to the parties.**

- [10] The Applicants proved to this court that the 1st Applicant purchased the suit land pursuant to a consent judgment and decree whereupon he took possession of the same and the registered proprietor having passed on thus transfers could not be fully completed, I accordingly grant this application in the following terms: - 1. A vesting order doth issue vesting the land into the names of **Sendagire Hudhair** and **Harora Kakim,** comprised in **LRV 1507/21, Folio 21, Bugahya County, Block 6, plot 106 land at Kabatendule Hoima District measuring 518.020 hectares**. - 2. The Commissioner Land Registration is ordered to register the Applicants, **Sendagire Hudhair** and **Harora Hakim** as the new

registered proprietors and court hereby vacates all encumbrances by the 1st Respondent or any one claiming under him.

3. The Applicants will bear the costs of this application.

Signed, dated and delivered at Hoima this **8 th** day of **December, 2022.**

# **Byaruhanga Jesse Rugyema JUDGE.**