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Namusoke & 3 Others v Owalla's Home Investment Trust (E.A) Limited (Civil Appeal 15 of 2017)

Supreme Court · [2018] UGSC 57 · 2018 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second civil appeal to the Supreme Court from a Court of Appeal decision (Civil Appeal No. 72 of 2009) upholding the Commissioner Land Registration's cancellation of a certificate of title
Decision
Appeal dismissed; the cancellation of the appellants' special certificate of title (as issued in error) was upheld and the 1st respondent's certificate of title remains valid

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Holding

The Supreme Court held that the Land (Amendment) Act 2004 deliberately omitted fraud — formerly a ground under the now-repealed section 69 of the Registration of Titles Act — from the Commissioner's cancellation powers; the word 'illegality' in section 91(2)(e)-(f) of the Land Act does not include fraud, and allegations of fraud must be adjudicated by the High Court. The Court of Appeal therefore erred in holding otherwise. However, on the facts the special certificate was cancelled because it had been issued in error — a valid ground under section 91(2)(e)(i) — and not for fraud, and proper procedure was followed. The appeal succeeded on one ground but was dismissed.

Facts

In 1985 the 1st respondent was registered as proprietor of land at Lukuli, Makindye, comprised in Kyadondo Block 261 Plot 173. In 1997 Magdalene Scott Nambi was registered as proprietor of the same land under a special certificate of title; after her death the appellants were registered as administrators of her estate in 2004. In 2005 the 1st respondent lodged a caveat and filed HCCS No. 7 of 2003 seeking to cancel the appellants' title, but that suit was dismissed for want of prosecution in 2008. The 1st respondent had also complained to the Commissioner Land Registration, who issued a notice of intention to cancel the special certificate as issued in error and later cancelled it in 2008. According to the Statutory Declaration of Senior Registrar Robert Opio, the special certificate had been issued in error: he had been shown the 1st respondent's original duplicate certificate of title and local council minutes confirming the 1st respondent's ownership. The appellants challenged the cancellation.

Issues

  1. Whether section 91(2)(e) and (f) of the Land Act includes fraud as a ground on which the Commissioner Land Registration may cancel a certificate of title.
  2. Whether sections 59, 77, 176 and 177 of the Registration of Titles Act bar the Commissioner from exercising powers under section 91 of the Land Act.
  3. Whether the cancellation of the appellants' special certificate of title was justified, in particular whether it was cancelled for fraud or for having been issued in error.
  4. Whether the Commissioner followed the proper procedure and afforded the appellants an opportunity to be heard before cancelling the certificate of title.

Orders

  • Appeal dismissed.
  • Costs of the appeal and in the court below granted to the 1st respondent.

Key headnotes

Registration of Titles — Cancellation of Certificate of Title — Commissioner Land Registration's powers over fraud
The Commissioner Land Registration has no power under section 91(2) of the Land Act to cancel a certificate of title on the ground of fraud; where fraud is alleged, the power to cancel is vested in the High Court and an aggrieved party should file a suit for adjudication of the fraud.
Land Act s.91(2)(e)-(f) — meaning of 'illegally or wrongfully obtained' — effect of Land (Amendment) Act 2004
The word 'illegality' in section 91(2)(e)-(f) of the Land Act does not include fraud; the Land (Amendment) Act 2004 deliberately omitted fraud (formerly available under the repealed section 69 of the Registration of Titles Act) from the grounds on which the Commissioner may administratively cancel a title, fraud being a specific type of illegality requiring strict proof before a court.
Registration of Titles — Cancellation — certificate issued in error
Under section 91(2)(e)(i) of the Land Act the Commissioner Land Registration is empowered to cancel a certificate of title that was issued in error.
Fraud — pleading and standard of proof
Allegations of fraud must be specifically pleaded and strictly proved to a standard above a mere balance of probabilities though not necessarily beyond reasonable doubt; a court may not find fraud proved by implication where fraud was not framed as an issue for determination.
Natural justice — opportunity to be heard — party who declines a hearing
A party who is invited to a hearing but elects instead to pursue litigation cannot afterwards complain that it was denied an opportunity to be heard.
Appeals — grounds not raised in the Memorandum of Appeal — Rule 102 Court of Appeal Rules
Under Rule 102 of the Court of Appeal Rules a party may not, without leave of court, argue on appeal a ground not specified in the Memorandum of Appeal; an appellate court cannot be faulted for declining to address an argument not so raised.

Legislation cited (17)

  • Land Act s.91(2)(e)-(f)
  • Land Act s.91(8)
  • Land Act s.91(9)
  • Land Act s.39
  • Land Act s.40
  • Registration of Titles Act s.56
  • Registration of Titles Act s.59
  • Registration of Titles Act s.69
  • Registration of Titles Act s.77
  • Registration of Titles Act s.140
  • Registration of Titles Act s.176
  • Registration of Titles Act s.177
  • Land (Amendment) Act 2004 s.37
  • Land (Amendment) Act 2004 s.41(c)
  • Constitution of Uganda Article 129
  • Court of Appeal Rules r.102
  • Court of Appeal Rules r.88

Cases cited (3)

  • John Ken Lukyamuzi v Attorney General & Electoral Commission (Constitutional Appeal No. 2 of 2007)
  • Edward Rurangaranga v Mbarara Municipal Council (Civil Appeal No. 10 of 1996)
  • A.K Detergents v G.M. Combined (U) Ltd [1999] KALR 563
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.