THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLENEOUS CAUSE NO. 15 OF 2020
MAMULI MWESIGWA ONESIMU MUWANGA======APPLICANT
COMMISIONER LAND REGISTRATION==============RESPONDENT
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
This application is for a vesting order brought by the applicant against the respondent under section 167 of the Registration of Titles Act, Cap 239; section 98 of the Civil Procedure Act, Cap 71 and O. 52 r. 1 of the Civil Procedure Rules, SI 71-1 seeking orders that;
- A vesting order be issued directing the respondent to transfer the suit property comprised in Block 16 Plot 958 land at Kibuga Kampala District into the name of the applicant.
- Costs of the application be provided for.
Grounds of the Application
- The applicant avers that he is the owner of the suit land as a Kibanja owner since the early 1960’s.
- The applicant purchased the Mailo interest from the estate of the late John B. Kalyesubula(deceased).
- A sale agreement between the applicant and Nakaggwe Nakiguli Agnes, a beneficiary to the deceased’s estate, was executed on the 9th December 1993.
- Upon the purchase, the applicant was given the duplicate certificate of title.
- The applicant paid full purchase price to the suit land.
- The applicant is in possession of the suit land.
- The applicant’s entry upon the suit land has been acquiesced by the vendor and her representatives.
- The applicant has made all efforts for the last 27 years to trace the Administrator of the deceased’s estate to effect the transfer but all efforts have been in vain.
Counsel for the applicant, Mr. Kiseka Lawrence submitted that the applicant had established sufficient grounds for issuance of a vesting order. He relied on the case of Aida Najjemba v Ester Mpagui, Civil Appeal No. 74 of 2005, where the court set out the four conditions to be fulfilled before a vesting order can be issued by the Registrar. Mr. Kiseka was of the view that the applicant had established that the suit land was registered land, he had paid full price for it, he was in possession and the entry upon the land had been acquiesced by the vendor and her representative.
The respondent, Commissioner Land Registration, did not file a reply in this matter but he appeared in court and furnished court with a certified copy of the duplicate certificate of title to the suit land which he conceded was a genuine title. He also availed court with an area schedule form to the suit land that demonstrated that the suit land existed.
Whether the applicant has established sufficient grounds to be issued a vesting order in the suit property?
Under section 167 of the Registration of Titles Act, if it is proved to the satisfaction of the registrar (of titles) that land under the 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 or taken possession under the purchase and that entry and possession have been acquiesced in the vendor by his or her representatives, but that the 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 of direction for the payment of such an additional fee in respect of assurance of title as he or she may think fit, and the registrar upon the payment of that additional fee, if any, shall effect the registration directed to be made by section 166, in the effect of the vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended by the same results as declared by section 166 in respect of the vesting orders made there.
In RE Ivan Mutaka (1980) HCB 27, Odoki, AJ, explained that the following circumstances must be proved;
- That there has been a sale of land
- That the land is registered under the Registration of Titles Act
- That the whole purchase price has been paid
- That the purchaser has taken possession
- That entry and possession has been acquiesced by the vendor and his representatives
- That a transfer had not been executed and cannot be obtained because the vendor is;
- out of jurisdiction
- cannot be found
A perusal of the sale agreement dated 9th December 1993 reveals that the land therein is described as Block 16 Plot 814. However, the duplicate certificate of title describes the land as Block 16 Plot 958. Exactly which land was the application in relation to?
Secondly, the registered proprietor on the suit property is Joseph Mawereza, Administrator of the Estate of the late J.B Kalyesubala who was registered upon the property on the 29th April 1999. The applicant averred that he was unable to trace him. According to the applicant, the vendor, Ms. Nakaggwe Nakiguli Agnes was a beneficiary of the estate of the deceased and she sold him her share in that capacity.
If this was true, it was irregular. The registered proprietor is the only person with rights to deal in registered land. It was incumbent upon the applicants to demonstrate that the sale was legitimate since it was the basis of this application. The vendor, Ms. Nakaggwe Nakiguli Agnes, ought to have had the land transferred into her name by the registered Administrator to enable her transfer her interest to the applicant. There is no evidence to suggest that the vendor is deceased or untraceable. As it stands, the application appears to require the court to make a vesting order against a third party not being the vendor in the sale agreement.
In the final analysis, the suit property as described in the sale agreement and the application itself is different from the suit property on the duplicate certificate of title. And even if the applicant had a valid explanation for the variance, the vendor in the instant suit differs from the registered proprietor on the duplicate certificate of title to the suit land. This court is of the firm view that this application is misguided and should therefore not be allowed.
The application is dismissed with costs to the respondent.
Olive Kazaarwe Mukwaya
28th July 2020
Representation: Mr. Lawrence Kiseka – M/S Imran Advocates and Solicitors for the Applicants
Mr. Moses Sekitto – Commissioner Land Registration for the Respondent