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Citizens' Concern Africa v Attorney General (Constitutional Appeal No. 3 of 2019)

Constitutional Court · [2023] UGCC 12 · 2023 Petition Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Constitutional petition challenging the constitutionality of statutory provisions
Decision
Petition dismissed with no order as to costs

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Holding

The Constitutional Court dismissed a petition challenging Section 91 of the Land Act, which empowers the Commissioner for Land Registration to cancel certificates of title. The Court held that the Commissioner's power is confined to titles issued in error or illegally; an illegally obtained title is a nullity attracting no protection of indefeasibility, while a lawfully acquired title cannot be cancelled except by court order, so Article 26 (property) is not infringed. Proceedings before the Commissioner are administrative and governed by Article 42, not the fair-hearing guarantees of Articles 28(1) and 44(c), which apply to courts and tribunals. The Article 21 (equality) claim failed for lack of evidence of any discriminated class.

Facts

Citizens' Concern Africa petitioned the Constitutional Court for a declaration that Section 91 of the Land Act Cap 227, as amended by Section 37 of the Land (Amendment) Act 2004, was unconstitutional. The impugned provisions empower the Commissioner for Land Registration, without referring the matter to a court or land tribunal, to cancel certificates of title issued in error, illegally or wrongfully, after giving at least twenty-one days' notice and conducting a hearing in accordance with the rules of natural justice. The petitioner argued that this allowed the State, through the Commissioner, to cancel titles and revert reserved land without prior fair and adequate compensation, and that the Commissioner acted as both complainant and judge, denying affected persons a fair hearing before an independent tribunal. The petition was supported by an affidavit of Sam Mucunguzi. The Attorney General opposed it, supported by an affidavit of Ssekitto Moses, contending the procedure safeguarded affected parties and that the right to compensation applied only to lawfully held land.

Issues

  1. Whether Section 91(1),(2),(3),(7),(8),(10) and (11) of the Land Act Cap 227, as amended by Section 37 of the Land (Amendment) Act 2004, is inconsistent with Article 26 of the Constitution.
  2. Whether Section 91 of the Land Act, as amended, contravenes Articles 28(1) and 44(c) of the Constitution.
  3. Whether Section 91 of the Land Act, as amended, contravenes Article 21 of the Constitution.

Orders

  • Petition dismissed.
  • No order as to costs.

Key headnotes

Land & Property — Certificates of Title — Indefeasibility — Effect of Illegally Issued Title
A certificate of title issued illegally is a complete nullity, confers no interest in or ownership of land, and cannot become the root of title for subsequent transferees; the protection of indefeasibility arises only where the registered proprietor acquired the land lawfully.
Land & Property — Cancellation of Title — Powers of Commissioner for Land Registration
The power of the Commissioner for Land Registration under Section 91 of the Land Act to cancel certificates of title is limited to titles issued in error, illegally or wrongfully; the Commissioner cannot cancel a title lawfully acquired by a registered proprietor except under an express order of court, and the provision therefore does not contravene the right to own property under Article 26.
Administrative Law — Fair Hearing — Hearings Before Administrative Officials
The fair-hearing guarantees in Articles 28(1) and 44(c) of the Constitution apply to proceedings before a court or tribunal and do not govern hearings before administrative officials; such hearings are governed by Article 42, which entitles a person to just and fair treatment and a right of recourse to a court of law.
Constitutional Law — Equality — Pleading and Proof of Discrimination
A petitioner alleging a violation of the right to equality under Article 21 must adduce evidence identifying the class of persons affected and demonstrating how they are discriminated against; a bare assertion unsupported by evidence cannot establish a contravention.
Constitutional Law — Constitutional Interpretation — Burden of Proof
In constitutional litigation the burden rests on the petitioner to raise a prima facie case that a fundamental right or freedom has been contravened, after which the burden shifts to the State to justify the limitation, and any limitation analysis must apply the criteria in Article 43.

Legislation cited (12)

  • Land Act Cap 227 s.91
  • Land (Amendment) Act 2004 s.37
  • Constitution of Uganda art.21(1)
  • Constitution of Uganda art.26
  • Constitution of Uganda art.28(1)
  • Constitution of Uganda art.42
  • Constitution of Uganda art.43
  • Constitution of Uganda art.44(c)
  • Constitution of Uganda art.237
  • Constitution of Uganda art.245
  • Constitution of Uganda art.8A
  • Registration of Titles Act

Cases cited (11)

  • David Tusingwire v Attorney General [2017] UGSC 11
  • Rtd Dr. Col. Kiiza Besigye v Y. K. Museveni (Presidential Election Petition No. 2 of 2006)
  • Attorney General v. Silvatori Abuki Constitutional Appeal No. 1988 (SC)
  • P. K. Ssemwogerere and Another v Attorney General (Constitutional Appeal No. 1 of 2002)
  • Attorney General of Tanzania v Rev Christopher Mtikila (2010) EA 13
  • Okello Okello John Livingstone and 6 others v Attorney General and Another (Constitutional Petition No. 1 of 2005)
  • South Dakota v. South Carolina 192, USA 268.1940
  • Attorney General v Major David Tinyefunza (Constitutional Appeal No. 1 of 1997)
  • Charles Onyango Obbo and Anor v Attorney General [2004] UGSC 81
  • Mark Gova & Another v Minister of Home Affairs & Another (S.C. 36/2000; Civil Application No. 156/99)
  • Bakaluba Peter Mukasa v Betty Bakireke (Supreme Court Civil Appeal No. 4 of 2009)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.