THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

MISCELLANEOUS CAUSE NO. 17 OF 2013

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

ANGELO MUWANGA:::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

1. THE COMMISSIONER FOR

LAND REGISTRATION

1. TEMPORA BISASE   :::::::::::::::::::::::::::::::::RESPONDENTS

BEFORE: HON MR. JUSTICE BASHAIJA K. ANDREW.

This application was brought under sections 33 and 36 of the Judicature Act, Cap 13; and Rules 3, 6, 7, 8 & 10 of the Judicature (Judicial Review Rules) SI No. 11 of 2009; seeking for orders that; an order of certiorari to quash the decision of the Respondent purporting to cancel the Applicant’s certificate of title for land comprised in Kyadondo Block 185 Plot 576 at Namugongo (“suit land”); an order reversing all entries entered in the Register Book on the basis of the above decision. In the alternative, but without prejudice to the above, if consequent to the impugned decision the land has been transferred to bonafide purchaser(s) for value, the Respondents be ordered severally and or jointly to pay damages equivalent to the market value of the suit land, and costs of this application.

The grounds of the application are contained in the affidavit in support of the motion by the Applicant wherein he avers that on 26/06/2012 the 1st Respondent posted a “Notice of Intention to Amend the Register” in respect of the suit land to which the Applicant is the registered proprietor. That the Applicant challenged the notice through a letter written by his lawyers and the 1st Respondent replied notifying the Applicant that the process has been discontinued. The Applicant then filed HCMA No.58 of 2012 to which the 1st Respondent filed a reply. While the application was still pending, the 1st Respondent proceeded and cancelled the certificate of title without according the Applicant a right to be heard.

The Applicant contends that the decision of the 1st Respondent to cancel the title on the ground that the 2nd Respondent had withdrawn HCCS No. 131 of 2012 was irrational. Further, that the 1st Respondent only sent by registered post the decision on 24/10/2013 which was received in December, 2013 by the Applicant’s lawyers.

The 1st Respondent did not file an affidavit in reply despite having been served with the application, and also never appeared in court for hearing. The 2nd Respondent filed an affidavit in reply opposing the application and prayed that it be dismissed. He contended that the 1st Respondent was reminded vide a letter dated 08/11/2012 to cancel the title of the suit land which she rightly and legally acted upon. That HCCS No. 131 of 2012 was withdrawn before rectification of the Register. That this application has been overtaken by events since the Register was corrected by the 1st Respondent.

The Applicant filed an affidavit in rejoinder in which he stated that HCCS No. 131 of 2012 has never been lawfully withdrawn as he had already filed a written statement of defence and raised an objection to the competence of the suit. That a ruling has been delivered and an application for leave to appeal against the said ruling is still pending before court.

The parties were directed to file a joint scheduling memorandum. However, only the Applicant adhered to the order. When the application was called for hearing none of the Respondents were not present. It was accordingly ordered that the application proceeds ex parte against the Respondents under Order 9 r. 20(2) CPR.

The Applicant’s counsel filed written submissions which I have taken into account in the resolution of the issues posed by this application. The following are the issues;

1. Whether the 1st Respondent’s decision to cancel the Applicant from the Register for land composed in Kyadondo Block 185 Plot 576 was tainted by illegality, irrationality, and procedural impropriety.
2. What remedies are available to the parties?

Resolution of the issues

Issue No.1: Whether the 1st Respondent’s decision to cancel the Applicant from the Register for land composed in Kyadondo Block 185 Plot 576 was tainted by illegality, irrationality and procedural impropriety.

The 1st Respondent, as earlier noted, never filed an affidavit in reply. In the case of Massa vs. Achen [1978] HCB 297, it was held that when facts are sworn to in an affidavit and these are not denied or rebutted by the opposite party, the presumption is that such facts are accepted as the truth. Accordingly, the facts sworn by the Applicant against the 1st Respondent will be taken as the truth.

The power of court to render a writ of certiorari, like in any other prerogative writs, is provided for under section 36 of the Judicature Act Cap 13. It states as follows;

“36. Prerogative orders.

(1) The High Court may make an order, as the case may be, of—

 (a) mandamus, requiring any act to be done;

 (b) prohibition, prohibiting any proceedings or matter; or

(c) certiorari, removing any proceedings or matter to the High Court.

(2) No order of mandamus, prohibition or certiorari shall be made in any case in which the High Court is empowered, by the exercise of the powers of review or revision contained in this or any other enactment, to make an order having the like effect as the order applied for or where the order applied for would be rendered unnecessary.”

In the case of Ouma Adea vs. AG and Busia District Local Government HCMA 95 of 2012 Musota J., held that;

“…in an application for judicial review, the affidavits filed in court by and for the respective parties to the application constitute the record with regard to the decision or act complained of and the subject of the review. The High Court may upon application for judicial review, grant among other orders an order of certiorari removing any proceeding or matter into the High Court for purposes of being quashed, an order of prohibition prohibiting any proceedings or matter, a declaration or an injunction to restrain a person from acting in office in which he or she is not entitled to. In order to succeed in an application for judicial review, the applicant has to show that the decision or act complained of is tainted with illegality, irrationality and procedural impropriety.”

From the above position of the law, it is important to determine whether the 1st Respondent’s decision in cancellation of the Applicant’s name from the Register Book of the suit land was tainted with illegality, irrationality and procedural irregularity by considering the affidavits filed and the attachments.

The 2nd Respondent and another filed HCCS No. 131 of 2012 against the Applicant on 26/03/2012 challenging his registration on the suit land. The Applicant filed a defence on 25/04/2012 denying the allegations. The 2nd Respondent also filed HCMA No. 242 of 2012 and HCMA No. 243 of 2012 for interim order and a temporary injunction respectively against the Applicant. The 1st Respondent then wrote a “Notice of Intention to Amend the Register Book” to the Applicant on 28/05/2012.

The Applicant having been dissatisfied with the decision of the trial Judge in HCMA No.242 of 2012 wrote a letter to the Court Registrar on 11/07/2012 requesting for a typed record of the proceedings in order to enable him file an appeal. He went ahead and filed a notice of appeal on 16/07/2012 which was received by the Court of Appeal on 20/07/2012. The Applicant also replied to the 1st Respondent’s letter on 12/07/2012 challenging the amendment of the Register Book. The 1st Respondent wrote a letter to the 2nd Respondent on 09/08/2012 discontinuing the de-registration of the Applicant. The Applicant further filed HCMA No.610 of 2012 for leave to appeal which was granted in September, 2012. The Applicant also filed HCMC No.58 of 2012 on 0/10/2012 for judicial review to quash the notice of the 1st Respondent to amen the Register Book. The 1st Respondent then withdrew HCCS No. 131 of 2012 on 22/01/2013. On 04/07/2013 the 1st Respondent wrote to the Applicant notifying him of the cancellation of his name on the Register Book.

The above sequence of events clearly demonstrates that despite being notified by the Applicant of the pending case in HCCS No.131 of 2012 and HCMA No.58 of 2012 on 12/07/2012 whereby the 1st Respondent acknowledged receipt on 12/10/2012 and replied to the same in an affidavit in reply which was received in court on 23/10/2012; the 1st Respondent went ahead on 04/07/2013 to amend the Register Book by cancelling the Applicant’s name.

In the case of Mucunguzi Myers vs. Sarah Kulata Basangwa, The Commissioner for Land Registration HC MA  No.1329 of 2014 it was held that;

“… the respondent (Commissioner Land Registration) having been put on notice that the matter was pending determination in court, the respondent ought to have exercised diligence and caution by refraining from dealing with the register in any way whatsoever. The so called action of amending the register not only violated the principles that underpin the sub judice rule, but was wantonly contemptuous of the due court process and hence the respondent acted contrary to the law…in taking these actions the respondent assumed the powers of court which are ordinarily not vested in her domain.”

In the instant case, it is quite evident that the 1st Respondent acted ultra vires by proceeding to cancel the Applicant’s title when the matter was still pending in court in HCMA No.58 of 2012.

In addition to the above, the 1st Respondent in canceling the Applicant’s entry on the suit land relied on new allegation that were not stated in the Notice of Intention to Amend the Register Book without according the Applicant a right to be heard as required under section 91(8) of the Land Act, Cap 227.For ease of reference I quote the relevant subsection below;

“(8) In the exercise of any powers under this section, the registrar shall—

(a) give not less than twenty-one days’ notice in the prescribed form to any party likely to be affected by any decision made under this section;

(b) provide an opportunity to be heard to any such party to whom a notice under paragraph (a) has been given;

(c) conduct any such hearing in accordance with the rules of natural justice but subject to that duty, shall not be bound to comply with the rules of evidence applicable in a court of law;

 (d) give reasons for any decision that he or she may make.”

This provision invariably encapsulates a fair hearing and underpins the principles of natural justice.

According to the Notice of Intention to Amend the Register Book, the complaint was clearly based on the fact that the transfer of the suit land into the names of the Applicant was irregular as the Administrators of the estate who signed in his favor had not yet been registered on the title. However, in the letter notifying the Applicant of his cancellation the 1st Respondent relied on, among others, the withdrawal of HCCS No. 131 of 2012, and that the transfer against which the Applicant was registered on Plot 576 was clearly meant for Plot 575. Evidently, the Applicant was never accorded opportunity to be heard on these new allegations; which is contrary to the principles of natural justice.

In the case of Hajji Numan Mubiakulamusa vs. Friends Estate Ltd. CACA No. 209 of 2013, it was held that;

“A decision taken in violation of the right to a fair hearing is no decision at all. It does not matter whether the decision maker would still have come to the same decision had he/she not violated the right to fair hearing.”

The 1st Respondent in the instant case thus acted illegally. It is trite law that an illegality once brought to the attention of court overrides all pleadings. See: Makula International vs. His Eminence Cardinal Nsubuga and another [1982] HCB 11

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

The Applicant prayed for an order of certiorari to quash the decision of the 1st Respondent and to reverse all entries entered in the Register Book.

In the case of Allan Mugisha Nyikindi vs. The Commissioner Land Registration and A’nor HCMC No. 45 of 2011, it was held that;

“It is now well settled that prerogative order of certiorari such as sough in the instant application, can be granted for correcting errors committed by administrative bodies/authorities in exercise of their jurisdiction; which is done improperly or with material illegality.”

In the instant case, the 1st Respondent acted ultra vires her powers when she amended the Register Book in a matter that was still pending in court without affording the Applicant a right to be heard. The 1st Respondent also vacated the Applicant’s caveat from the suit land illegally and contrary to section 140 of the Registration of Titles Act, Cap 230.

Accordingly, an order of certiorari doth issue quashing the 1st Respondent’s decision dated 04/07/2013 in amending the Register Book in respect to land comprised in Block 185 Plot 576 at Namugongo and reversing all the entries entered in the Register Book on the basis of the above decision.

From the evidence adduced by the parties to this case, it is not clear whether consequent to the impugned decision the suit land has been transferred to other bonafide purchaser(s) for value. If that is the case, it would render the orders of certiorari issued above nugatory. Therefore, in the alternative and without prejudice to the orders issued above, in the event that as at the time of this ruling the suit land has been transferred to third parties bonafide, the Respondents are ordered jointly and severally to pay damages equivalent to the market value of the suit land to be determined by the Chief Government Valuer to the Applicant. Furthermore, the Applicant is awarded costs of the application.

BASHAIJA K. ANDREW

JUDGE

02/05/2017