Wakilii

Egaddu and Another v Registrar of Tittles and 2 Others (Civil Suit No. 3199 of 2016)

High Court · [2023] UGHCLD 58 · 2023 Judgment for Plaintiffs AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for reinstatement of cancelled certificate of title and related relief
Decision
Plaintiffs' certificate of title ordered reinstated; 3rd defendant's title ordered rectified to exclude plaintiffs' land

Observed later treatment

Treatment recorded in citing cases followed in 1 Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

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Good law Followed in 1 case and applied in 0 cases, with no adverse treatment recorded. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

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Holding

The High Court held that the Expropriated Properties Act did not apply to the disputed land because the 2nd defendant's lease had expired before the Assets of Departed Asians Act commenced in 1973, and therefore the land was never expropriated. The Registrar of Titles acted illegally in cancelling the plaintiffs' certificate of title without complying with mandatory procedural requirements under the Land Act, including failing to give proper notice and conduct a fair hearing. The court ordered reinstatement of the plaintiffs' certificate of title and rectification of the 3rd defendant's title to exclude the plaintiffs' 0.205 hectare plot.

Outcome

Plaintiffs' certificate of title ordered reinstated; 3rd defendant's title ordered rectified to exclude plaintiffs' land

Facts

In 1971, the 2nd defendant was granted a 2-year lease for Plot 80-82 & M191 Port Bell Road. The lease required construction of buildings worth at least Shs. 500,000, which was never done. The 2nd defendant's directors were expelled from Uganda by the military regime. In 1990, Rev. John Obokech and Catherine Obokech obtained a 2-year lease for Plot 4 Port Bell Close, later extended to 95 years from 1992. They constructed St. John's Guest House on the land. In 1999, the Minister of Finance issued a repossession certificate to the 2nd defendant under the Expropriated Properties Act, and the Registrar of Titles issued a new 2-year lease. In 2001, the plaintiffs purchased Plot 4 from Rev. Obokech and continued operating the guest house. In 2003, the Registrar of Titles cancelled the plaintiffs' certificate of title, claiming Plot 4 was part of the repossessed land. In 2006, the 3rd defendant purchased Plot 80-82 from the 2nd defendant, which purportedly included Plot 4. The plaintiffs brought suit seeking reinstatement of their title.

Issues

  1. Whether the land in dispute was ever expropriated and therefore subject to repossession?
  2. Whether the 2nd defendant lawfully repossessed the suit land?
  3. Whether the purchase by the plaintiffs after the purported repossession is extinguishable by reason of the Expropriated Properties Act?
  4. Whether the 2nd defendant was involved in forgery and fraud of both the repossession certificate and the land title in respect to the suit land and its application to Kampala District Land Board and if so, whether the 3rd defendant took good title?
  5. Whether the Minister of Finance became functus officio upon issuing the certificate of repossession and if so, whether that fact overrides questions of fraud if proved?
  6. Whether the 2nd defendant possessed any interest in the land and the sale to the 3rd defendant extinguished the plaintiffs' interest?
  7. Whether the 3rd defendant is a bona fide purchaser?
  8. What remedies are available to the parties?

Orders

  • An order directing the Commissioner for Land Registration to rectify the certificate of title for the land comprised in Plot 80-82 Port Bell Road, Kampala LRV 804 Folio 12 and deduct land comprised in LRV 2568 Folio 9 Plot 4 Port Bell Close, Kampala measuring 0.205 Hectares owned by the plaintiffs.
  • An order directing the Commissioner for Land Registration to reinstate the certificate of title for the land comprised in LRV 2568 Folio 9 Plot 4 Port Bell Close measuring 0.205 Hectares.
  • An order directing the Commissioner for Land Registration to transfer land comprised in LRV 2568 Folio 9 Plot 4 Port Bell Close, Kampala from Rev. John Obokech and Catherine Obokech to the plaintiffs.
  • Each party shall bear its own costs.

Rules and key headnotes

Expropriated Properties Act — Scope of Application — Requirement of Subsisting Lease at Time of Vesting
For a leasehold property to come within the ambit of the Expropriated Properties Act, the lease must have been subsisting and in force at the time the property vested in Government under the Assets of Departed Asians Act, which commenced on 7th December 1973. A lease that had expired before that date cannot be subject to repossession under the Expropriated Properties Act.
Expropriated Properties Act — Purpose and Interpretation — Remedial Statute
The Expropriated Properties Act is a remedial statute aimed at returning properties to former owners who were dispossessed by the military regime between 1972 and 1979. It was not intended to facilitate persons expelled by the regime to acquire properties they did not own in the first place. Such remedial statutes should be given a liberal interpretation in favour of their remedial purpose.
Commissioner for Land Registration — Cancellation of Certificates of Title — Mandatory Procedural Requirements
Under sections 91(8) and (9) of the Land Act, the Commissioner for Land Registration must comply with mandatory procedural requirements before cancelling a certificate of title: (a) give not less than 21 days' notice to any party likely to be affected; (b) ensure the notice is actually received by affected parties; (c) provide an opportunity to be heard; (d) conduct a hearing in accordance with the rules of natural justice; and (e) give reasons for the decision. Non-compliance with these requirements renders the cancellation void ab initio, illegal and of no legal consequence.
Natural Justice — Audi Alteram Partem — Right to Fair Hearing
The audi alteram partem rule requires that a party should have the opportunity to present his case and contemplates notice of the hearing being given to enable him to have that opportunity. Fundamental aspects of a fair hearing include: (a) prior notice of the date, time, place and case to be heard; (b) opportunity to present one's case; (c) a conducive environment to challenge or contradict evidence; and (d) a reasoned decision with a record of proceedings. This right is non-derogable and must be strictly observed.
District Land Boards — Constitutional Independence — Right to Hearing Before Title Cancellation
District Land Boards are independent constitutional bodies established under Article 241 of the Constitution. In the performance of their functions, they are not subject to the direction or control of any person or authority. Where a District Land Board has granted a lease, the Commissioner for Land Registration is legally obliged to accord the Land Board a hearing prior to cancelling the leasehold certificate of title, given the Board's constitutional and legal mandate regarding leasing of land.
Equitable Interests — Enforceability Against Third Parties — Bona Fide Purchaser
An equitable interest in land is valid and enforceable against the entire world, except for the bona fide purchaser of a legal estate for value without notice (actual, constructive or imputed). The onus is on the purchaser to establish himself as a bona fide purchaser, and it is a heavy burden to discharge. Where a purchaser inspects land and sees visible developments constituting an equitable interest, the purchaser takes subject to that interest.
Fraud — Procurement of Registration to Defeat Unregistered Interest
It is well settled that to procure registration of title in order to defeat an unregistered interest amounts to fraud. Although mere knowledge of an unregistered interest cannot be imputed as fraud, where such knowledge is accompanied by a wrongful intention to defeat such existing interest, that amounts to fraud.

Legislation cited (22)

Cases cited (16)

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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Egaddu_and_Another_v_Registrar_of_Tittles_and_2_Others_(Civil_Suit_No._3199_of_2016)_[2023]_UGHCLD_58_(9_March_2023)
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