Wakilii

In Re Kivulu (MISC. APPLICATION NO. 04 OF 2018)

High Court · [2019] UGHCCD 209 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ex parte application for vesting order under section 167 of the Registration of Titles Act
Decision
Application dismissed for failure to prove essential elements and procedural defects

Observed later treatment

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Holding

The court dismissed an ex parte application for a vesting order under section 167 of the Registration of Titles Act where the applicant failed to prove that the deceased vendor was the registered proprietor of the land, failed to produce evidence of death or the certificate of title, and failed to join the Registrar of Titles as a respondent despite seeking orders directed at the Registrar's statutory functions.

Outcome

Application dismissed for failure to prove essential elements and procedural defects

Facts

The applicant claimed to have purchased one acre of land comprised in Kyagwe Block 147 Plot 65 at Kalagi from Nakitali Edward, who allegedly received the land as compensation from UETCL before his death. The applicant alleged he took physical possession and that the late Nakitali's family consented to the transaction. The applicant produced a land sale agreement dated 14th October 2010 and a recommendation letter from local authorities. However, the applicant did not produce a certified copy of the certificate of title, evidence that Nakitali Edward was the registered proprietor, or a death certificate for Nakitali Edward. The son of the deceased, Matiya Katongole, swore an affidavit stating his father died in 2003, predating the alleged sale agreement by seven years. The Registrar of Titles was not joined as a party despite the application seeking orders directed at the Registrar's statutory functions.

Issues

  1. Whether section 167 of the Registration of Titles Act is applicable to the applicant's case.
  2. Whether the applicant has satisfied the conditions for a vesting order under section 167 of the Registration of Titles Act.
  3. Whether the Registrar of Titles should have been joined as a respondent in the application.

Orders

  • Application dismissed.

Rules and key headnotes

Land & Property — Vesting Orders — Section 167 Registration of Titles Act — Conditions Precedent
For a vesting order to be made under section 167 of the Registration of Titles Act, the applicant must prove: (i) the land is registered under the Act; (ii) the registered proprietor sold the land and received the whole purchase price; (iii) the purchaser or those claiming under him took possession; (iv) entry and possession were acquiesced in by the vendor or his representative; and (v) transfer has not been executed because the vendor is dead, residing out of jurisdiction, or cannot be found.
Land & Property — Vesting Orders — Proof of Registered Proprietorship
It is essential to establish that the vendor was the registered proprietor of the land before an applicant can secure registration under section 167 of the Registration of Titles Act. The vendor must have capacity to sell and transferable legal interest. It is not enough to have a sale agreement without evidence of the vendor's registered proprietorship.
Civil Procedure — Parties — Registrar of Titles as Necessary Party
Where an applicant seeks orders directed at the Registrar of Titles to effect changes in the register, the Registrar must be joined as a respondent and given an opportunity to be heard. Section 182 of the Registration of Titles Act provides that the Registrar may be summoned to court to respond to issues pertaining to statutory duties.
Administrative Law — Specific Performance of Statutory Duty — Proof of Refusal
Any order issued by court for specific performance of a statutory duty must be backed by evidence that the officer has neglected or refused to perform the statutory duty. Such an officer must be given a fair hearing to show cause why he or she should not be compelled to perform the statutory duty.
Evidence — Burden of Proof — Civil Cases — Section 167 Applications
In an application under section 167 of the Registration of Titles Act, the applicant bears the burden to prove on a balance of probabilities: (i) that the land is registered in the vendor's name; (ii) that the vendor is dead; and (iii) that the Registrar of Titles has refused to register the applicant's interest despite satisfaction of the statutory requirements.
Statutory Interpretation — Judicature Act Section 33 — Application to Properly Proven Claims
Section 33 of the Judicature Act, which confers wide remedial powers on the High Court, applies only to parties who have proven legal or equitable claims that are properly before court, not to claims based on assumption or unsupported by evidence.

Legislation cited (9)

Full judgment

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In Re Kivulu (MISC. APPLICATION NO. 04 OF 2018) [2019] UGHCCD 209 (28 February 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.