THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT MUKONO
MISC. APPLICATION NO. 04 OF 2018
FORMALLY MA 3/2016
KAVULU ELLY ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT
BEFORE: HON. LADY JUSTICE MARGARET MUTONYI, JUDGE HIGH COURT
- Kavulu Elly, the applicant herein brought this application by way of Notice of Motion exparte under section 167 of the RTA, section 33 of the Judicature Act, section 98 of the CPAorder 52 rules 1 and 2 of the civil procedure rules seeking for orders that;
- Land comprised in Kyagwe Block 147 Plot 65 at Kalagi be vested in the applicant and registration be done in the names of Kavulu Elly.
- The Registrar of Titles be directed to effect changes in the Register and owner’s copy.
- The Applicant meets costs of the Application.
- The Application is supported by the affidavits of KAVULU ELLY (the Applicant) dated 4th August 2015 and Matiya Katongole s/o Nakitali Edward and briefly, the grounds are as follows:
- That the Applicant bought land comprised in Kyagwe Block 147 Plot 65 at Kalagimeasuring 1 acre from Nakitali Edward.
- That the late Nakitali Edward received the said land from UETCL as compensation before his demise.
- That the Applicant took over physical possession of the land before the death of the said Nakitali.
- That the late Nakitali’s family has no claim whatsoever on the suit land as their late father had informed them of his transaction with the Applicant before his demise.
Counsel Dan Byaruhanga of M/S Tumwesigye Baingana and Co. Advocates who appeared for the applicant filed written submissions that have been put into consideration while writing this Ruling.
The only issue for courts consideration is whether section 167 of the RTA is applicable to the applicant’s case.
In his submissions, learned Counsel for the Applicant, reiterated the grounds for the Application as laid out in the affidavits of Kavulu Elly and Matiya Katongole.
He added that the late Nakitali had even introduced the Applicant to the local authorities as the owner but unfortunately he died and at the time of death, he had not received his title from UETCL.
To prove purchase and ownership of the suit land, he attached the Land Sale Agreement executed between the Applicant and the late Nakitali on 14th October 2010 and a recommendation letter from the area LC introducing the applicant as the owner of Block 147 Plot 65 Kyagwe as annextures ‘’A’’ and ‘’B’’ to his affidavit respectively.
He further noted that the 2nd deponent Matiya Katongole who is also the heir of the late Nakitali stated in his affidavit that his father had died in 2003 but he was always aware that before his death, he had sold part of the land he had received as compensation from UETCL to Elly Kavulu who was and still is in actual possession thereof. He also emphasized that his family had no claim whatsoever on the said land.
Counsel relied on section 167 of the RTA which is to the effect that;
“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 has acquiesced in by the vendor or his or her representative, but that transfer has never been executed by the vendor and cannot be executed by the reason that the vendor is dead or is residing out of the jurisdiction or cannot be found, the Registrar may make a vesting order in the premises...”
He further invoked the unlimited powers of this court vide section 98 of the CPA and section 33 of the Judicature Act which when read together with section 167 of the RTA clothe this court with the mandate and powers to make orders in accordance with the law and facts of the case.
The powers under the above sections are discretionary but such discretion must be judiciously exercised based on the law and facts.
The duty of any Judge is to apply the law to a given set of facts and come out with a decision that is fair and just to the parties or any other person who would be affected by any orders arising therefrom.
The Application was made exparte with no respondent yet the orders sought were to be directed to the Registrar of Titles who under section 182 of the RTA has the statutory duty to:
(a) Bring land under the Operation of the Act.
(b) Have any dealings on the land registered or recorded.
(c) Have any certificate or document issued.
(d) Have any act or duty in respect of titles done or performed.
For clarity let me reproduce the entire section.
Under section 182 of the RTA it is provided:
- “that if upon the application of any owner or proprietor to have land brought under the operation of this ACT, or to have any dealings registered or recorded or to have any Certificate of Title or other document issued or to have any actor duty done or performed which by this ACT is required to be done or performed by the Registrar, the owner or proprietor of land may summon the Registrar who refuses so to do or if the owner or proprietor is dissatisfiedwith any decision of the Registrar upon his or her Application, the owner or proprietor may require the Registrar to set forth in writing under his or her hand the grounds of his or her refusal or decision and the owner or proprietor may, if he or she thinks fit, at his or her own cost summon the Registrar to appear before the High Court to substantiate or uphold those grounds.
- The summons under subsection (1) shall be served upon the Registrar six clear days at least before the day appointed for hearing the complaint of the owner or proprietor.
- Upon such hearing the Registrar shall have the right of reply and the
High Court may, if any question of fact is involved 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 cost and fees as to it shall seem fit and the Registrar shall obey that order”.
The case under consideration falls on all fours under the above provision where the Registrar of Titles can be summoned to court at the instance of the owner of land or registered proprietor, to respond to issues pertaining to his statutory duties.
This implies that the Registrar of Titles can be sued or summoned to court in respect of his or her statutory duties as a defendant or Respondent in an application like this one under review unless their action is protected under section 175 of the RTA.
However, for unknown reasons, the Applicant and his Counsel did not deem it necessary to sue The Registrar of Titles as the Respondent in spite of seeking for orders which fall under the ambit of the Registrar’s statutory duties and or functions under the RTA.
The court however proceeded with the case as it is any way.
For one to be entered in the register as proprietor under section 167 of the RTA, the following conditions must be met;
- The land must be registered under the RTA.
- The Registered Proprietor must have sold the land in question and received the whole purchase price.
- The Purchaser or those claiming under him or her must have taken possession of the purchased land.
- The said entry and possession must have been acquiesced in or consented to by the vendor or his representative.
- The transfer of the property has not been executed because the vendor is dead or is residing out of jurisdiction or cannot be found.
The above essential elements of section 167 of the Registration of Titles Act must be proved or established before the Registrar and Registrar here refers to the Registrar of Titles.
The request to have the land registered into the names of the vendor should be made to the Registrar of Titles who upon satisfaction makes the necessary vesting order which leads to the making of the necessary transfer.
In Uganda land the land tenure system or ownership is in four types to wit customary, mailo, freehold, and leasehold.
From the affidavit evidence on record the land that the applicant desires to have transferred into his names is under the Torrens System as it has a Block and Plot numbers as it is stated to be registered as Kyagwe Block 147 Plot 65 at Kalagi in the names of Nakitali Edward.
Unfortunately, no evidence was adduced from the land registry showing that it was registered in the names of Nakitali Edward at any one time.
The information contained in paragraph 3 of the affidavit of Matiya Katongole a son to Nakitali Edward the vendor to the effect that it was part of the land that was compensation to Nakitali Edward from UECTL has no evidential value as there is no documentary evidence between his Father and UETLC to that effect. It can as well be treated as hearsay evidence which is not admissible.
No certified copy of the certificate was tendered in court or attached to the pleadings.
Matiya Katongole who claimed to be son and heir did not say anything about the title and where it is.
Kivulu Elly the applicant, in his affidavit evidence under paragraph 3 and 6 stated that he bought the said land from Edward Nakitali after he had acquired it from UETLC as compensation, and that at the time of his death; he had not received the land title from UETLC which was processing them.
According to Matiya Katongole son and heir to Nakitali Edward, his father died in 2003.
The Sale Agreement the Applicant is relying on is surprisingly dated 14th October 2010; and also bears last date of payment as 8th January 2013.
The basis for this Application is death of the alleged vendor/ proprietor.
However there is no evidence of death of Nakitali Edward by way of death certificate and no evidence that his family has tried to procure Letters of Administration and pursued the recovery of the Certificate of Title from UETLC in vain.
It is trite law that the burden of proof rests on he who alleges and in Civil cases, the burden is very light. It is on the balance of probabilities.
In this Application, the Applicant had the burden to prove that:
1. The land in question is registered in the names of Nakitali Edward
2. That Nakitali Edward is dead.
3. That the Registrar of Titles has refused to register the Applicant’s
Interest in spite of satisfying the ingredients under section 167 of the RTA.
He ought to have produced records from the Registrar of Titles showing that Nakitali Edward was the registered proprietor of land measuring one acre comprised in Block 147 Plot 65 and that he acquired it as compensation from UETLC.
Perusal of the translated sale of land Agreement dated 14th October 2010 describes this land as land found in Kalagi on Block 147 measuring one acre. The Agreement does not mention the Plot number and the Registered Proprietor. It does not mention anywhere that the vendor, Nakitali Edward acquired it as compensation from UETLC and that they are processing the Certificate of Title.
The Agreement does not mention anything about the Certificate of Title being processed.
It is very essential to establish proprietorship before the Applicant can secure registration under section 167 of the RTA because the seller or vendor must be the registered proprietor of the land.
It is not enough to have a Sale Agreement. The vendor must have the capacity to sell and transferable legal interest.
The Registrar of Titles uses the record in his register to ascertain proprietary rights and must be satisfied that the vendor indeed sold his legal interest in the land. Section 38(1) of the RTA provides for duplicate Certificate of Title. The particulars of a certificate of title can always be procured from the office. Section 59 of the RTA is to the effect that Certificate of Title is evidence of ownership.
Apart from the Applicant alleging he purchased land in Block 147 Plot 65 at Kalagi, he has no evidence to show that the land is registered in the names of the vendor Edward Nakitali. He has no evidence showing how Nakitali acquired the said land and the legal authority to sell it to him.
The Applicant did not take out summons to serve the Registrar he wants to be directed by this court to register land in his names as is required under section 182 of the RTA.
Court was not informed whether the Applicant has ever presented his case before the registrar and failed to secure his registration or not.
I do agree with the provisions of section 33 of the Judicature Act that confers power and authority to the High Court to, in the exercise of the jurisdiction vested in it by the Constitution, the Judicature Act, or any other written law, to grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that so far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any matter be avoided.
However, I am afraid that in the instant case, if the prayers sought are granted and the Registrar of Titles is directed to effect changes in the register without evidence as to who is the registered proprietor and evidence of how the vendor Edward Nakitali acquired any authority to transact business on land comprised in Kyaggwe Block 147 Plot 65 at Kalagi, the Court would be inviting multiplicity of civil suits from the Registrar of Titles and whoever might be the Registered Proprietor of Land comprised in Block 147, Plot 65 at Kalagi.
Section 33 of the Judicature Act applies to parties that have proven legal or equitable claims that are properly before court and not based on assumption.
In my view, this matter is not even properly before court because there is no evidence that the office of the Registrar of Titles was informed about any transaction between UETLC and Nakitali Edward and between Edward Nakitali and the Applicant AND that the officer deliberately refused to register the interest of the Applicant.
As mentioned earlier, the Applicant is free to cause the Registrar to show cause why he should not be compelled to register his interest in the land as provided under section 182 of the RTA. The Registrar of Titles should have been made a party to these proceedings if the Applicant believes he has a cause of action against him or her. The Registrar would have furnished court with relevant information about Block 147 Block 65, land at Kalagi.
Any order issued by Court for specific performance of a statutory duty must be backed by evidence that the officer has neglected or refused to perform his or her statutory duty.
Such an officer must also be given a fair hearing to show cause why he or she should not be compelled to perform his or her statutory duty.
I am afraid that the court has no single iota of evidence that the Registrar of Titles has refused to perform the statutory duty of registering the applicant’s interest in the land and that the vendor was actually the registered proprietor of the Land comprised in Block 147 Plot 65
My finding is that mention of plot 65 and allegation of acquisition of the land by way of compensation from UETLC is not backed by any evidence and as such is of no evidential value.
Besides, the orders sought if granted would be against the principles of equity and, natural justice because the Registrar of Titles would be condemned un heard yet section 182 (2) of the RTA supra, provides for the procedure to be adopted in circumstances like in the instant case.
The Registrar should be summoned.
In view of the above, the court finds that the applicant failed to prove his case on the balance of probabilities and the facts of his case do not fall under the provisions of section 167 of the RTA.
Section 33 of the Judicature Act and 98 of the Civil Procedure Act must be applied judiciously in deserving cases.
Applying the above two sections in favour of the applicant would amount to abuse of the court process.
In the result the application is dismissed.
Dated at Mukono this 28thday of February 2019.
Hon. Lady Justice Margaret Mutonyi
MUKONO HIGH COURT