Wakilii

Estate of Magdalene Scott Nambi v Owalla's Home Investment Trust Limited & Another (Civil Appeal 15 of 2017)

Supreme Court · [2019] UGSC 71 · 2019 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the Court of Appeal's affirmation of the High Court's refusal to restrain the Commissioner Land Registration from cancelling the appellants' certificate of title.
Decision
Appeal dismissed; cancellation of the appellants' special certificate of title upheld and the 1st respondent's title remains valid

The full judgment

Read the complete, verbatim text of this judgment.

Sign in to read the full judgment

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Supreme Court held that, following the Land (Amendment) Act 2004 which repealed Section 69 of the Registration of Titles Act and introduced Section 91(2) of the Land Act omitting fraud, the Commissioner Land Registration has no power to cancel a certificate of title on the ground of fraud; such allegations must be adjudicated by the High Court. The word "illegality" in Section 91(2)(e)-(f) does not include fraud. Ground 1 therefore succeeded. However, the appellants' title was in fact cancelled for having been issued in error, a permitted ground under Section 91(2)(e)(i), and the appellants who were invited to a hearing could not complain of being unheard. The appeal was accordingly dismissed with costs.

Facts

The 1st respondent was registered as proprietor of land at Lukuli, Makindye in 1985. In 1997 Magdalene Scott Nambi was registered as proprietor of the same land under a special certificate of title, and following her death the appellants were registered in 2004 as administrators of her estate. The 1st respondent lodged a caveat and sued to cancel the appellants' title, but that suit was dismissed for want of prosecution. The 1st respondent also complained to the Commissioner Land Registration, who issued a notice of intention to cancel and later, in October 2008, cancelled the appellants' special certificate of title on the ground that it had been issued in error. A senior Registrar of Titles deponed that the special certificate had been issued in error after it emerged the 1st respondent held the original duplicate certificate. The appellants unsuccessfully sought to restrain the cancellation in the High Court and appealed to the Court of Appeal and then the Supreme Court.

Issues

  1. Whether the word "illegality" in Section 91(2)(e)-(f) of the Land Act includes fraud as a ground on which the Commissioner Land Registration may cancel a certificate of title.
  2. Whether the Commissioner Land Registration, when exercising powers under Section 91 of the Land Act, is barred by Sections 59, 77, 176 and 177 of the Registration of Titles Act.
  3. Whether the appellants' special certificate of title was cancelled on the basis of fraud or on the basis of having been issued in error.
  4. Whether the Commissioner followed the proper procedure and accorded the appellants a hearing before cancelling the certificate of title.

Orders

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

Key headnotes

Land & Property — Cancellation of Certificate of Title — Powers of the Commissioner Land Registration over fraud
The Commissioner Land Registration has no power to cancel a certificate of title on the ground of fraud; following the Land (Amendment) Act 2004, which repealed Section 69 of the Registration of Titles Act and enacted Section 91(2) of the Land Act omitting fraud, jurisdiction to cancel a title where fraud is alleged is vested in the High Court.
Statutory Interpretation — Land Act s.91(2)(e)-(f) — meaning of "illegally or wrongfully obtained"
The word "illegality" in Section 91(2)(e)-(f) of the Land Act does not encompass fraud; not every illegality is rooted in fraud, and fraud is a specific and distinct type of illegality handled differently under the Land Act.
Land & Property — Cancellation of Certificate of Title — title 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; where cancellation is premised on error rather than fraud, the cancellation is lawful.
Evidence — Proof of fraud — standard and pleading
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, and a court will not find fraud by implication where it was not framed as an issue for determination.
Civil Procedure — Appeals — new grounds not in the Memorandum of Appeal
Under Rule 102 of the Court of Appeal Rules, a party may not, without leave of court, argue that a decision should be reversed or varied except on a ground specified in the Memorandum of Appeal.
Administrative Law — Natural Justice — right to be heard
A party who is given notice and invited to a hearing but elects instead to pursue separate litigation cannot afterwards complain that it was denied an opportunity to be heard.

Legislation cited (17)

  • Land Act s.91(2)(e)-(f)
  • Land Act s.91(2)(e)(i)
  • 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 Rule 102

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 vs. G.M. Combined (U) Ltd, KALR [1999] 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.