THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISC.APPLICATION NO. 410 OF 2018
(Arising from Civil Appeal No.2185 of 2016)
- MPALANYI BEN
- THE REGISTRAR OF TITLES …………………..…….RESPONDENTS
BEFORE: HON. MR. JUSTICE HENRY I. KAWESA
This application was brought Notice of motion under Section 177 of the Registration of Titles Act & Order 52 r 1,2, and 3 of the Civil procedure Rules seeking orders that;-
- Consequential orders be made ordering for the names of Mpalanyi Ben from a certificate of land title for land comprised in Block 97 Plot 1312 & 1313 Kyadondo and registration of the Applicant thereon as a registered proprietor of the same land.
- The 1st Respondent be directed to hand over the said title to the 2nd Respondent for the process in 1 above.
- The 2nd Respondent be directed and an order to effect the changes accordingly.
The grounds of the application were set out in the notice of motion and the accompanying affidavit sworn by Sentongo Matia and briefly they are that the Applicant sued Mpalanyi Ben in the Chief Magistrate’s Court of Wakiso and on appeal in the High Court vide C.A No. 92 of 2015, the Applicant got judgment in his favor. He sought orders for;
- a declaration that the suit property belongs to him and for vacant possession of the suit property which orders were granted on appeal.
- the Court decreed that the land belonged to the Applicant, he went to Execution Department under E-MA 2901 of 2016 and that vacant possession was given to him.
- At the time he filed the main suit, the title was in the names of Jomayi Property Consultants Ltd and that, as the matter was on appeal pending disposal, Mpalanyi Ben transferred the same into his names.
- That, while the suit land is referred to as a Kibanja in the proceeding, it has been transferred in Block 97 plot 1323 and 1313 land at Mayirikiti in the names of Mpalanyi Ben.
- That he is in physical possession of the land but not the land title or just in his names.
- That it is in the interest of justice that this application is allowed and the Court directs the Respondents to effect changes on the certificate of title cancelling the current registered proprietor and registering the Applicant thereon.
To substantiate the above averments, the Applicant attached a judgment on appeal as annexure ‘A’, a copy of a warrant to the bailiff to give vacant possession attached and marked ‘B’ and a copy of the certificate of title as annexure ‘C’.
The 2nd Respondent did not oppose the application.
The 1st Respondent Mpalanyi Ben did file his affidavit in reply wherein he averred that the Applicant has never been declared the owner of the land described as Block 97 plots 1312 and 1313 and that the Applicant was declared to be the owner of a Kibanja and that all his claims and evidence was about ownership of a Kibanja.
He contends that a Kibanja interest is different from a mailo interest in that while the former is an equitable interest, the latter is a legal interest. He adds that the Applicant being declared the owner of a Kibanja interest in in a judgment cannot acquire a legal interest in the same on the basis of that judgment, that the Applicant wants to use Court to acquire what he has never owned before or what has never been declared as to be his land. The 1st Respondent attached a copy of;
- a judgment from Mpigi Court vide CS No. 148/2012 as annexure ‘A’, and;
- a copy of a judgment on appeal Vide C.A No. 92/2015 as Annexure ‘B’.
In rejoinder, the Applicant maintains that this application is a well-established procedure taken by a successful litigant in a suit of recovery of land grounded under Section 177 of the Registration of Titles Act, that plots 1312 and 1313 Block 97 were curved out of land comprised in Block 97 plot 511 which was originally in the names of Jomayi property consultants.
It was the Applicant’s case in rejoinder that the same plot was to be given as compensation for the Kibanja by Jomayi consultants Ltd to whoever would successfully prove ownership through Courts of law. Both Counsel for the Applicant and the 1st Respondent filed written submissions.
Under Section 177 of the Registration of Titles Act under which this application is brought provides that; - “Upon the recovery of any land, estate or interest by any proceeding from the person registered as proprietor thereof, the High Court may in any case in which the proceeding is not herein expressly barred, direct the registrar to cancel any certificate of title or instrument, or any entry or memorial in the Register Book relating to that land, estate or interest, and to substitute such certificate of title or entry as the circumstances of the case require; and the registrar shall give effect to that order.”
In the case of Nantongo Harriet & 2 Ors versus Namuyiga Rose Misc Application No. 64 of 2016, this Court noted that;
“Section 177 of the Registration of Titles Act is self-regulating. It clearly provides that once there is proof that there was recovery of land, estate or interest from the registered proprietor and the proceedings leading to such recovery is not barred”.
Therefore, for consequential orders under section 177 of the Registration of Titles Act to be issued by this Honourable Court, the Applicant has to prove the above two ingredients as specified in the case of Nantongo Harriet & 2 Ors versus Namuyiga Rose (Supra).
Recovery of land
On the issue of recovery of land, Counsel for the Applicant submitted that the Applicant got judgment in his favor for orders that he is the legal owner of the suit land vacant possession, whereafter execution ensued and vacant possession was given. Counsel relied on two cases to wit;- Darlington Kapama versus the Registrar of Titles Misc. Cause No. 12 0f 2013 for the position that; for a party to rely on the provisions of Section on section 177 of the Registration of Titles Act and have the register book rectified, the Applicant has to satisfy Court that he/she has recovered land, estate or any interest in question by any proceedings from a registered proprietor and Andrea Lwanga versus Registrar of Titles (1980) HCB 24 for the position that; ‘before a person has obtained judgment for the recovery of land against a registered proprietor could be registered as proprietor, he first had to apply to the Court to make a consequential order, which is made consequent upon recovery of land and that this was the only method prescribed by the Registration of Titles Act’.
Counsel for the Respondent on the other hand submitted that the Applicant proved ownership of a Kibanja not legal interest which the Registration of Titles Act refers to. That since the Applicant was decreed to own a Kibanja which is an equitable interest, that he can only acquire legal interest and be registered on the certificate for the land upon proof of ownership of the same.
In rejoinder, Counsel for the Applicant opined that as required by section 177 of the Registration of Titles Act, the Applicant recovered the suit land from the 1st Respondent and has possession of the same and that he seeks that the 1st Respondent’s name on the certificate of title be cancelled and it be replaced with the Applicant’s.
According to annexure ‘C’; which is a special certificate of title for land comprised in Block 97 plot 1313, shows that it was issued on the 2nd September 2011, the duplicate of which was originally issued having been lost which was registered in the names of Jomayi Property Consultants Ltd on the 21st August 2009. The suit was filed in Court in 2012 Vide CS No. 148/12, this shows that by the time the Applicant filed CS No.148/2012 the suit land was already registered but the Plaintiff/Applicant among other remedies sought for;
- declarations that he is a legal owner of the suit Kibanja,
- the defendant/Respondent herein be declared a trespasser on the suit Kibanja,
- costs and;
- a permanent injunction.
Both parties were claiming bibanja interest yet the land was a registered land.
When the Applicant appealed against the decision of the trial Magistrate, ground one of appeal was that;
‘the Magistrate erred in law and fact when he decreed that the Plaintiff failed to prove owner-ship of his Kibanja, and in resolution, the trial judge combined both ground 1 and 2 and stated at page 4 of his judgment that “in my view from the evaluation of evidence on record as out lined, the Plaintiff Matiya Sentongo now the appellant proved to the land in question and so ground 1 and 2 of appeal succeeds”.
I find that ownership referred to by the judge was of Kibanja interest as it was stated in ground one of appeal’. I again find that a Kibanja is an equitable interest as it is not provided for in the Registration of Titles Act. The Applicant relying on Section 177 of the Registration of Titles Act to pray for consequential orders where he was claiming to be a Kibanja owner was therefore used out of context.
For consequential orders under Section 177 of the Registration of Titles Act to be issued by this Court, the land must have been registered in the first place, like in this case, since the land was a registered land, the then registered proprietor (Jomayi Property Consultants Ltd) would have been made a party and among the prayers in the lower Court, the Applicant would have prayed for cancellation of title which powers are not vested with that Court but with the High Court.
As such, I agree with Counsel for the Respondent when he submitted that the Applicant ought to prove ownership of the legal interest as well.
This application is not proved, it is dismissed with costs.
Henry I. Kawesa
Semugera Ronald for the Respondent.
Kazibwe Emmanuel for the Applicant.
Matter for ruling, the same is communicated to the parties above
Henry I. Kawesa