Wakilii

Grace Namulondo and 3 Other v Jone Johns Serwanga Salongo and 2 Others (Miscellaneous Cause No. 001 of 2019)

High Court · [2019] UGHCCD 303 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking orders of certiorari to quash the Commissioner for Land Registration's decision to rectify a land title
Decision
Application allowed; Commissioner's decision quashed and status quo ante restored

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the Commissioner for Land Registration acted ultra vires and irrationally in rectifying the land register to reverse court judgments dating back to 1984, 1986 and 1993 that had conclusively determined ownership in favour of the applicants' predecessors. The exercise of statutory power under section 91 of the Land Act was tainted by arbitrariness and ulterior motive, as the rectification was done at the instance of parties who had lost interest in the land through multiple court decisions. An order of certiorari was granted quashing the Commissioner's decision.

Outcome

Application allowed; Commissioner's decision quashed and status quo ante restored

Facts

The applicants sought judicial review of the Commissioner for Land Registration's decision to rectify the register for land comprised in Masaka Buddu Block 367 Plot 3. The land had been the subject of litigation since 1973. In Masaka C.S. No. 73 of 1984 (Victoria Nakabembe v Yowana Yakuze), the Chief Magistrate ruled that the land belonged to the estate of the late Atienyi Mukasa. Yowana Yakuze appealed to the High Court (Civil Appeal No. 10 of 1986) but the appeal was dismissed in 1989. In Miscellaneous Application No. 17 of 1993 arising from Administration Cause No. 09 of 1984, Justice Kityo adjudged the land to belong to the estate of the late Atienyi Mukasa. In HCCS No. 012 of 2014, the suit land was decreed by consent before Justice Keitirima in 2017 to belong to the 2nd applicant and other co-applicants jointly. In 2018, the 1st and 2nd respondents (successors of Yowana Yakuze) complained to the Commissioner for Land Registration that Victoria Nakabembe had been fraudulently registered on the title. The Commissioner conducted a hearing on 17 September 2018 and issued an amendment order dated 27 November 2018 rectifying the register by cancelling Victoria Nakabembe's registration and reinstating Yowana Yakuze.

Issues

  1. Whether there is a valid and competent application on record in respect of the 1st, 3rd and 4th applicants.
  2. Whether in arriving at his decision, the 3rd respondent accorded the applicants a fair hearing.
  3. Whether the decision of the 3rd respondent was irrational, ultra vires and was made in contravention of the law.
  4. What remedies are available to the parties.

Orders

  • Declaration issued that the actions and decision of the 3rd respondent in proceedings held at Kampala Land Office were irrational, ultra vires and irregularly made in contravention of the law.
  • Order of Certiorari issued quashing the decision of the 3rd respondent contained in the amendment order dated 27th November 2018.
  • No damages awarded.
  • Costs of the application granted to the applicants.
  • The 4th applicant's counsel not awarded costs.

Rules and key headnotes

Judicial Review — Grounds for Review — Illegality, Irrationality, and Procedural Impropriety
For an applicant to succeed in judicial review, they must prove that the decision challenged was tainted by illegality, irrationality or procedural impropriety. Judicial review is concerned not with the decision itself but with the decision-making process through which the decision was made.
Affidavit Evidence — Multiple Applicants — Authority to Depose on Behalf of Others
Where multiple applicants file a joint application supported by an affidavit from one of them who is conversant with the facts, the failure of the other applicants to file separate affidavits is a mere irregularity which does not render the application incompetent, provided they rely on the same facts and evidence. The modern trend is to regard defects as irregularities which can be remedied rather than as nullities, and provisions of the Civil Procedure Rules must be interpreted to advance the cause of justice rather than defeat it on mere technicalities.
Fair Hearing — Procedural Fairness — Refusal to Refer Questions of Law to High Court
An administrative authority's refusal to refer questions of law to the High Court does not constitute a denial of the right to fair hearing where the applicants were given the opportunity to be heard and raise objections. Fairness is a variable concept to be determined on a case-by-case basis, and courts will not over-judicialise administrative processes. Administrative decision-makers are not courts of law and should not have to adopt strict court procedures.
Ultra Vires — Exercise of Power for Ulterior Purpose — Abuse of Discretion
Where a public authority exercises statutory power ostensibly within its jurisdiction but does so to achieve an unauthorised purpose not contemplated when the power was conferred, the decision is ultra vires and an abuse of discretion. Power conferred upon a public authority must be exercised reasonably, in accordance with law, and for the statutory purpose intended. If powers are used outside the ambit of statutory purposes, it is not only ultra vires but also arbitrary.
Land Registration — Rectification of Register — Reversal of Court Judgments
The Commissioner for Land Registration's power to rectify the register under section 91 of the Land Act is not intended to be exercised in a manner that defeats or reverses court judgments determining ownership of land, particularly judgments delivered decades earlier. Where rectification is done at the instance of persons who lost interest in land through multiple court decisions and is designed to reverse those decisions, the exercise of power is irrational and ultra vires.
Certiorari — Effect — Restoration of Status Quo Ante
An order of certiorari is designed to quash a decision of a public authority that is unlawful by reason of being reached without or in excess of jurisdiction, in breach of rules of natural justice, or contrary to law. The effect of certiorari is to restore the status quo ante, restoring the situation that existed before the quashed decision was made.
Judicial Review — Remedies — Damages — Misfeasance in Public Office
In judicial review proceedings, damages are not automatically awarded. To succeed in a claim for compensation against a public body, an individual must establish that the unlawful action also constitutes a recognisable tort (such as misfeasance in public office involving malicious abuse of power or deliberate maladministration) or involves a breach of contract. The fact that an act is ultra vires does not of itself entitle the individual to damages for any loss suffered.

Legislation cited (14)

Cases cited (13)

  • John Jet Tumwebaze v Makerere University Council and 2 Others (Miscellaneous Cause No. 353 of 2005)
  • DOTT Services Ltd v Attorney General (Miscellaneous Cause No. 125 of 2009)
  • Balondemu David v The Law Development Centre (Miscellaneous Cause No. 61 of 2016)
  • Commissioner of Land v Kunste Hotel Ltd [1995-1998] 1 EA (CAK)
  • Nteyafa Kaddu Mukasa and Another v Zion Construction (HCCS No. 901 of 2015)
  • Ready Agro Suppliers Limited v Uganda Development Bank (HCT-CC No. 039 of 2005)
  • Raj Narain v Indira Nehru Gandhi (1972)3 SCC 850
  • Harkness v Bell's Asbestos Ltd [1966] All ER 843
  • Minister of Environment Affairs and Tourism v Bato Star Fishing (Pty) Limited 2004 (7) BCLR 687 (CC); 2004 (4) SA 490 (CC)
  • Johannesburg Stock Exchange v Witwatersrand Nigel Ltd 1988 (3) SA 132
  • Pharmaceutical Manufacturers Association of SA In Re:Ex Parte Application of President of the RSA 2000 (3) BCLR 241(CC)
  • R vs Aston University Senate ex p Roffey [1969] 2 QB 558
  • R vs Secretary of State for Health ex p Furneaux [1994] 2 All ER 652

Full judgment

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Grace Namulondo and 3 Other v Jone Johns Serwanga Salongo and 2 Others (Miscellaneous Cause No. 001 of 2019) [2019] UGHCCD 303 (1 November 2019)
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.