THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
COMMERCIAL COURT DIVISION
EDWARD KABUGO SENTONGO ………… …….…….. PLAAINTIFF
BANK OF BARODA (U) LTD. ……………………..… DEFENDANT
BEFORE: HON MR. JUSTICE LAMECK N. MUKASA
2. There is no cause of action disclosed against Mr. Opio and the Registrar of Titles.
Mr. Karuhanga argued that the plaintiff should have proceeded under section 182 of the Registration of Titles Act and if he had suffered any damage then he should have proceeded against the government under section 185 of the Act by instituting a suit against the Attorney General.
Section 182 of the Act provides:
(3) Upon such hearing the registrar shall have the right of reply and the High Court may if any question of fact is invoked direct an issue to be tried to decide the fact, and thereafter the High Court shall make such order in the premises as the circumstances of the case require and such order as to payment of costs and fees as to it shall seem fit and the registrar shall obey that order.”
Counsel also cited section 175 of the Act , which provides:-
“Neither the registrar nor any person acting under his or her authority shall be liable to any action or proceeding for or in respect of any act or matter bona fide done or omitted to be done in the exercise or supposed exercise of any power or duty given or imposed by this Act.”
He also cited Charles Harry Twagira Vs Attorney General, Director of Public Prosecutions and another CACA No 61 of 2002 and argued that the Registrar of Titles is not a corporate entity and as such cannot be sued. In the above case the Appellant had filed an application against the Attorney General, the DPP and Kyomukama Sam (a police officer) challenging his arrest and prosecution. Justice Twinomujuni, JA cited article 250 (2) of the Constitution and stated:-
Therefore a Civil Suit against the Director of Public Prosecutions cannot be sustained and it is incompetent. The same equally applies to the case against the 3rd Respondent. He is the Police Officer who was sent to London to re-arrest the appellant and escort him to Uganda. He is the one who made the investigations and applications under the law that led to the detention and freezing of the appellant’s accounts. He was at all times acting as an employee of the government. Not only is he protected against personal law suits arising from his official functions by the laws of Uganda but he is also covered by section 48 of the Judicature Act. I am of course aware that he could be sued in his personal capacity if there is a possibility that he acted beyond the scope of his duties or maliciously but that does not arise in this case. Nevertheless the appellant could at his own risk maintain an action against the 3rd Respondent.”
In reply Mr. Erias Lukwago, for the plaintiff, argued and I agree that section 175 of the Act is not an absolute bar to suits against the Registrar or any person acting under his or her authority. The section only limits its protection to where the Registrar or such other officer acts bonafide. In the instant case the 2nd and 3rd defendants are claimed to have acted malafidely and fraudulently. It is so pleaded in paragraph 17 and the plaintiff states the particulars of bad faith and fraud attributed to the 2nd and 3rd defendants. Whether any of the parties acted bonafide or malafide cannot be adequately dealt with and resolved at a preliminary stage. See Sanyu Lwanga Musoke Vs Yakobo Mayanja Ntate SCCA No 59 of 1995. As regards corporate capacity Mr. Lukwago argued that the intention of the framers of the Act was to create the office of the Registrar of Titles with the capacity to sue and be sued.
Counsel particularly citedIGG Vs Kikonda Butema Farm Ltd & AG. Constitutional Application No 13 of 2006. The issue in that case was whether the IGG has legal capacity to sue or be sued. Their Lordships the Justices of Appeal were referred to eight cases where the IGG had been a party. They considered the cases and the provisions of the Constitution and of the Inspectorate of Government Act which provide for the functions of the IGG and stated.
Court held that the IGG has the capacity to sue and be sued.
Counsel also cited theCommissioner General URA Vs Investments Ltd SCCA No 22 of 2007. One of the issues in that the case was whether the Commissioner General URA was a proper party to the suit. Hon Justice Kanyeihamba JSC, cited provisions of the law which empowers the Commissioner General to sue for the taxes due and unpaid and held:
Hon Justice Tsekoko, JSC stated:-
Mr. Lukwago referred this court to a number of cases where the Registrar of Titles had been sued:-
2. Oliva Amelia Kawalya Kagwa Vs Registrar of Titles (1974) HCT 239
3. Elia Kitiza Vs Registrar of Titles (1978) HCB 39
4. Uganda Blanket Manufactures Ltd Vs Chief Registrar of Titles HC Misc. App No 55 of 1993.
I have looked at some of the above cases. In Elia Kitinza case it was an application for reinstatement of a Certificate of Title brought against the Registrar of Titles under section 190 (now section 182) of the Registration of Titles Act. The application was entertained. In Andrea Lwanga case the application was by notice of motion under section 190 (now section 182) of the RTA calling upon the Registrar to appear and substantiate his grounds for refusing to register land in the late Yusufu Galiwango, father of the Applicant therein. The application was entertained and court held that the proper procedure for bringing an application under the section was by an originating summons under Order 34 (now 37) of the Civil Procedure Rules. In Kawalya Kagwa Vs Registrar of Titles (1974) EA 481 the appellant had applied to the Registrar of Titles to be registered as proprietor of the land of her late husband and his father as executrix under Section 143 (now 134) of the RTA. The Registrar refused registration. The appellant took out an originating summons under Order 34 (now 37) CPR calling on the Registrar under Section 190 (now 182) of the RTA to substantiate and uphold the grounds of his refusal. The application was entertained at both the High Court and the Court of Appeal levels.
Under Section 3 of the Act a registrar is appointed to have charge and control of the office of titles and to exercise the powers and perform the duties conferred or imposed upon the registrar by the Act. The Registrar may delegate all or any of his or her powers or duties under the Act. As was held, in respect to the IGG in the Kikonda Butema Farm case (supra) the Registrar of Titles must own his/her decisions and actions and have the capacity to defend them. It is in that spirit that under section 182 of the Act proceedings can be brought against the registrar to substantiate and uphold the grounds of his /her refusal to either:
(ii) have any dealing registered or recorded
(iii) have any certificate or document issued or
(iv) have any act or duty done or performed.
Under section 174 of the Act the Registrar of Titles can state a case for the High Court on matters regarding the performance of his/her duties or exercise of his/her functions. The Registrar is thereby empowered to take out proceedings for courts determination. As was held by Hon Justice Kanyeihamba in Commissioner General URA Vs Meera Investments (supra) the Registrar of Titles is thereby made liable to be sued. The position of the Registrar of Titles is distinguishable from the position of the DPP which was the subject of Justice Twinomujuni’s holding in Twagira Vs A/G and DPP (supra). The functions of the DPP are laid out in Article 120 (3) of the Constitution. The DPP is not clothed with any powers to take out civil proceedings. Such powers by or against the Government are only vested in the Attorney General. By implication section 175 of the Act shows that the Registrar or any person under him can be liable for action or proceeding where he acts malafidely. Sections 183 and 185 provide for circumstances under which an aggrieved person may proceed against the Government for damages under the Act but the sections do not limit proceedings for damages to the Government only.
In the instant case, in addition to damages, the plaintiff is seeking for declarations and orders which required Court to pronounce itself on the Registrar’s or his or her staff’s performance and exercise of his/her duties and functions. In the premises I find that the Registrar of Titles can be sued. I therefore find that the Registrar of Titles was rightly sued.
Generally every suit is commenced by plaint and the instant suit was so commenced. The plaintiff who claims that he is the proprietor of the suit land, in paragraph 16 of the plaint states:-
The above pleadings would bring the plaintiff’s claim within the armbit of section 182 of the Act. Under the section proceedings are specifically provided to be by summons. I have already hereabove, outlined the cases cited to me by Mr. Lukwago as suits filed against the Registrar of Titles and entertained by Court. All these cases were commenced by applications and in Andrea Lwanga case it was particularly held that the proper procedure for bringing an application under the section is by an originating summons. Sub section (3) provides that after hearing, as may be directed by the High Court, the Court shall make such order in the premises as the circumstances for the case require.
Going by the provisions of section 182 of the Act and the above authorities, which happen to have been cited by Mr. Lukwago, where the Registrar is required to substantiate and defend his or her actions proceedings should be commenced by way of Originating Summons. However the plaintiff’s case is beyond the scope of Section 182 of the Act. The section is permissive not mandatory. It cannot be constrained as divesting any aggrieved party from proceeding otherwise than under the section.
In the instant case the plaintiff alleges bad faith and fraud against the 2nd and 3rd Defendants. I have already stated that the Registrar of Titles and officers under her don’t enjoy the protection of section 175 of the Act where their acts or omissions are not bonafide. Further the plaintiff is claiming damages for the market value of the suit property and other remedies. In the premises I find that the procedure adopted was the most appropriate in the circumstances.
As to whether there is a cause of action disclosed against the 2nd and 3rd defendants I have already held that the 3rd Defendant, as Registrar of Titles, and the 2nd Defendant as an officer of the Office of the Titles can be sued where their actions or omissions are not bonafide. In the instant case the plaintiff’s claim that the said defendants in exercise of their powers and duties were not bonafide and were fraudulent. The plaintiff further claims that as a result of the defendant’s conduct a caveat was improperly removed, a mortgage unlawfully registered on his certificate of title and that as a result the plaintiff has suffered loss and damage.
A cause of action is disclosed if the plaint shows that the plaintiff enjoyed a right, that the right has been violated and that the defendant is liable. See Auto Garage & Other Vs Motokov (No 3) (1971) EA 514. The pleadings disclose all the above. I accordingly find that the plaint discloses a cause of action against the 2nd and 3rd Defendants
The preliminary objections raised are accordingly rejected and dismissed with costs. The suit shall proceed on merit.
Hon. Mr. Justice Lameck N. Mukasa
16th June 2009