Wakilii

MKS Limited v Commissioner Land Registration and Others (Civil Suit No. 656 of 2020)

High Court · [2021] UGHCLD 137 · 2021 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Ruling on preliminary objection raised by 2nd defendant in civil suit for cancellation of subdivision and reinstatement of title
Decision
Preliminary objection dismissed; matter to proceed to full trial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that section 91(10) of the Land Act is directory, not mandatory. The provision does not oust the High Court's jurisdiction to hear a challenge to the Commissioner's decision by way of plaint. A party aggrieved by the Commissioner's cancellation of title may proceed by suit without first exhausting the appeal remedy. Preliminary objection dismissed; costs in the cause.

Outcome

Preliminary objection dismissed; matter to proceed to full trial

Facts

The plaintiff company purchased land comprised in Kyadondo Block 216, plot 4478 from Samuel Mugabi and became the registered proprietor. The Commissioner, Land Registration issued a notice dated 12 July 2016 of intention to effect changes in the register by cancelling the plaintiff's registration, pursuant to a complaint by the 2nd defendant (administratrix of the estate of the late Lusiya Namutebi). On 21 November 2017, the Commissioner made an amendment order cancelling the plaintiff's certificate of title. The plaintiff filed suit on 8 September 2020 seeking cancellation of the subdivision, reinstatement as proprietor, and a declaration as bonafide purchaser for value without notice. The 2nd defendant raised a preliminary objection that the suit was premature because the plaintiff had not appealed the Commissioner's decision within 60 days as required by section 91(10) of the Land Act.

Issues

  1. Whether the plaintiff's suit discloses a cause of action against the 2nd defendant.
  2. Whether the plaintiff was required to exhaust the internal remedy of appeal under section 91(10) of the Land Act before filing suit.
  3. Whether the suit is premature, ultra vires, illegal and barred for failure to appeal the Commissioner's decision within 60 days.

Orders

  • Preliminary objection dismissed.
  • Costs in the cause.

Rules and key headnotes

Land & Property — Commissioner Land Registration — Powers under Land Act s.91 — Appeal remedy — Whether mandatory
Section 91(10) of the Land Act, which provides that a party aggrieved by a decision of the Commissioner Land Registration may appeal to the District Land Tribunal within 60 days, is directory and not mandatory. The use of the word 'may' as opposed to 'shall' makes the provision merely directory.
Civil Procedure — Preliminary Objection — Exhaustion of remedies — Whether required before filing suit
Where a statute provides an internal remedy of appeal but does not expressly prohibit other avenues of redress, a party is not required to exhaust that remedy before filing suit in the High Court. The provision of an appeal remedy does not oust the jurisdiction of the High Court to hear a challenge by way of plaint.
Administrative Law — Statutory powers — Commissioner Land Registration — Jurisdiction of High Court not ousted
Section 91 of the Land Act was never intended to oust the jurisdiction of the High Court to hear an appeal against the decision of the Commissioner Land Registration by way of plaint. Had that been the intention of the legislature, it would have been expressly stated.
Land & Property — Cancellation of title — Right to challenge — Procedure not restricted to statutory appeal
It would be a great injustice if a decision by the Commissioner Land Registration had the effect of taking away the right of ownership of land and the affected party could not bring an action in court to contest it because the period within which to appeal has elapsed. The procedure by suit to challenge the Commissioner's decision is not expressly prohibited by statute and can therefore be applied.

Legislation cited (6)

Cases cited (10)

  • Uganda Aluminium Ltd v Restuta Twinomugisha (Court of Appeal Civil Appeal No. 22 of 2000)
  • Kapeka Coffee Works Ltd v NPART (Court of Appeal Civil Appeal No. 3 of 2000)
  • Tororo Cement Co Ltd v Frokina International Ltd (Civil Appeal No. 2 of 2001)
  • Paul Saku Busagwa & Another v Commissioner Land Registration (MC No. 40 of 2014)
  • Uganda Crop Industries Ltd v URA (MC No. 5 of 2009)
  • Shamir Productions Ltd & Another v URA & Others (MC No. 28 of 2012)
  • Microcare Insurance Ltd v Uganda Insurance Commission (MA No. 31 of 2009)
  • Mulowooza Brothers v N. Shah & Co. Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Deo Semakula v Bayogera Valentine Kajungo & 2 Others (High Court Civil Suit No. 442 of 2013)
  • Edward Katumba v Daniel Kiwalabye Musoke (Court of Appeal No. 2 of 1998)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

MKS_Limited_v_Commissioner_Land_Registration_and_Others_(Civil_Suit_No._656_of_2020)_[2021]_UGHCLD_137_(23_September_2021)
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.