THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLENEOUS CAUSE NO. 31 OF 2020
2. LUBWAMA LYDIA
3. NANTALE FLORENCE
4. BBAKA KOSIMA ==============APPLICANTS
COMMISIONER LAND REGISTRATION=======RESPONDENT
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
This application is for a vesting order brought by the applicants 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 & 3 of the Civil Procedure Rules, SI 71-1 seeking orders that;
- The vesting order be issued directing the respondent to transfer the suit property comprised in Buruli Block 194 Plots 2 &3 at Buzalwa in Nakasongola District into the name of the applicants.
- Costs of the application be provided for.
Grounds of the Application
- The 1st applicant, Mr. Seruwumu swore an affidavit in support of the application.
- The applicants are the administrators of the estate of the late Magoba John Chrizestom Lubwama
- On the 29th May 1931, the late Merekizadeka Mwangu sold the suit land to Nasanairi Bakusagira land measuring 120 acres at UGX 240/=
- The late Merekizadeka Mwangu executed transfer of the land into the name of the late Nasanairi Bakusagira who then transferred the land into her name.
- The late Nasanairi Bakusagira then sold the suit land to the late Magoba John Chrizestom Lubwama who immediately executed transfer forms for him.
- That around 2005, Mr. Magoba John Chrizestom Lubwama passed on without transferring the certificate of title into his name. However, his children, including the applicants are in occupation of the suit land.
The respondent did not file a reply but he appeared in court and availed the court with two search statements of the Plots comprising the suit land. There is a caveat on the Plot 2 lodged by Bbaka Kosiima, Musaazi Bazirio and Seruwumu Francis. There is another caveat on Plot 3 lodged by Seruwumu Francis, Bbaka Kosiima and Musaazi Bazirio.
Mr. Musaazi Bazirio is not a party to this application.
Whether the applicants have 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
There are two glaring anomalies about the instant application. The first is that the transfer forms, marked ‘C’ upon which the applicants are relying as proof of sale, indicate that no purchase price was paid. It was a gift given by transfer by Nasanairi Bakusagila to Magoba John Chrizestom Lubwama. The applicants were duty bound to prove that land had been sold by the vendor. No money changed hands.
Secondly, the third caveator on both properties, Mr. Musaazi Bazirio is not a party to this application. His interest is unknown to this court and has not been explained by the applicants. Section 141 of the Registration of Titles provides that no entry is to be made in the Register Book while the caveat continues in force. The exception to this provision is the written consent of the caveator to the intended changes in proprietorship or transfer. Mr. Musaazi Bazirio’s consent has not been tendered in court. The applicants chose to ignore the whole matter altogether.
In the circumstances, this court is dissatisfied with the merits of this application. The suit land was not the subject of a purchase and there are existing caveator interests that must be resolved.
This 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