Wakilii

Nyika and Another v The Commissioner Land Registration (Miscellaneous Cause 259 of 2022)

High Court · [2023] UGHCCD 312 · 2023 Judicial Review Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for judicial review seeking orders of certiorari, prohibition, mandamus and injunction challenging the Commissioner's decision to cancel certificates of title
Decision
Application granted with orders quashing the cancellation decision, prohibiting implementation, compelling restoration of applicants' title and registration of Plot 2011 in their names, and awarding general damages of UGX 50,000,000

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the judicial review application, finding the Commissioner Land Registration acted ultra vires and with procedural impropriety. The Commissioner exceeded statutory powers under Section 91 of the Land Act by cancelling certificates of title held by bona fide purchasers for value without notice where fraud allegations existed—such cancellation is exclusively a High Court function under Sections 176-177 of the Registration of Titles Act. The Commissioner also breached natural justice by failing to provide the applicants with proper notice and hearing as required under Section 91(8)-(9) of the Land Act. Orders of certiorari, prohibition, mandamus and damages of UGX 50,000,000 were granted.

Outcome

Application granted with orders quashing the cancellation decision, prohibiting implementation, compelling restoration of applicants' title and registration of Plot 2011 in their names, and awarding general damages of UGX 50,000,000

Facts

The applicants purchased land comprised in Kyaggwe Block 80 Plot 2010 (which was registered in their names) and Plot 2011 (awaiting registration) from Niyonzima Simon Mbabbe after conducting land registry searches showing clear title. In September 2022, they learned through newspaper publication that the Commissioner Land Registration intended to amend the register for Plot 2010. The Commissioner proceeded to cancel the certificates of title for both plots, finding they had been irregularly created when land originally registered at blue page stage in the name of Erenesti Jjagwe was fraudulently converted to a white page in the name of Lule Lulencio by administrators of his estate, who then subdivided and sold to Niyonzima. The Commissioner also lodged a caveat preventing registration of Plot 2011 in the applicants' names. The applicants were not served with notice of the intended amendment or given proper hearing before the cancellation order was issued.

Issues

  1. Whether the application is amenable for judicial review?
  2. Whether the application discloses any grounds for judicial review?
  3. Whether the Applicants are entitled to the reliefs sought?

Orders

  • A declaration that the decision by Respondent to cancel the certificates of title for land comprised in Kyaggwe Block 80 Plots 2010 and 2011 situate at Dundu, Buntaba & Kiryamuli was illegal for being ultra vires the powers of the Respondent.
  • A declaration that the process and act of the Respondent lodging and registering a caveat on the certificate of title for the land comprised in Kyaggwe Block 80 Plot 2011 vide Instrument No. MKO-0O116512 was illegal for being ultra vires the powers of the Respondent.
  • An Order of Certiorari quashing the decision of the Respondent to cancel the certificates of title for land comprised in Kyaggwe Block 80 Plots 2010 and 2011.
  • An Order of Prohibition restraining the Respondent or her agents from implementing or acting upon the decision/order to cancel the certificates of title for the suit land.
  • An Order of Mandamus compelling the Respondent to remove the caveat lodged on the certificate of title for land in Kyaggwe Block 80 Plot 2011 and have the same registered in the name of the Applicants subject to payment of requisite fees and compliance with registration processes; and restoring or maintaining the Applicants' names on the certificate of title for land comprised in Kyaggwe Block 80 Plot 2010.
  • An Order of a Permanent Injunction restraining the Respondent or its agents from registering any instrument adversely affecting the Applicants' interest and or proprietorship over the suit land.
  • An order for payment of a sum of UGX 50,000,000 by the Respondent to the Applicants as general damages.
  • An order for payment of the costs of the application by the Respondent.

Rules and key headnotes

Judicial Review — Amenability — Public Body Exercising Public Functions
For a matter to be amenable to judicial review, it must involve a public body acting in exercise of public functions, and the subject matter must involve claims based on public law principles rather than enforcement of private law rights.
Land Registration — Powers of Commissioner Land Registration — Section 91 Land Act — Limitations Where Fraud Alleged
The powers of the Commissioner Land Registration under Section 91 of the Land Act to correct errors, illegalities or irregularities do not extend to cancellation of certificates of title held by bona fide purchasers for value without notice where the creation of title involved fraud. In such cases, only the High Court has jurisdiction to order cancellation under Sections 176 and 177 of the Registration of Titles Act.
Land Registration — Official Caveats — Section 170(a) Registration of Titles Act — Scope of Commissioner's Power
Under Section 170(a) of the Registration of Titles Act, the Registrar may lodge a caveat only on behalf of Government, on behalf of persons under specified disabilities, or to prevent fraud or improper dealing or where an error by misdescription has occurred. Where fraudulent dealings in the land registry are overtly apparent, the Commissioner cannot classify the matter as mere misdescription to justify lodging a caveat under this provision.
Judicial Review — Illegality — Ultra Vires Conduct — Acting Without Jurisdiction
A public authority acts illegally and ultra vires where it makes a decision or performs an act without legal power to do so. Discretionary powers conferred on legal authorities are not absolute and must be exercised in the manner intended by the empowering legislation, reasonably, in good faith, and taking into account only relevant considerations.
Judicial Review — Natural Justice — Audi Alteram Partem — Notice and Hearing Requirements
Procedural propriety under Article 42 of the Constitution and Section 91(8)-(9) of the Land Act requires the Registrar to give not less than twenty-one days' notice to any party likely to be affected by a decision, provide an opportunity to be heard, conduct the hearing in accordance with natural justice rules, and give reasons for the decision. Failure to comply constitutes procedural impropriety justifying judicial review.
Judicial Review — Remedies — Damages in Judicial Review — Additional Cause of Action Required
In judicial review proceedings, damages may only be awarded if the applicant establishes both grounds for judicial review and a separate cause of action (such as breach of statutory duty, misfeasance in public office, or a private action in tort) which would have entitled him or her to damages in a separate suit under Rule 8(1) of the Judicature (Judicial Review) Rules 2009.

Legislation cited (16)

  • Constitution of Uganda Art.28(1)
  • Constitution of Uganda Art.42
  • Constitution of Uganda Art.44(c)
  • Judicature Act Cap.13 s.36
  • Judicature Act Cap.13 s.38
  • Judicature (Judicial Review) (Amendment) Rules S.I No.11 of 2019 r.7A
  • Judicature (Judicial Review) (Amendment) Rules S.I No.11 of 2019 r.8(1)
  • Registration of Titles Act Cap.230 s.59
  • Registration of Titles Act Cap.230 s.170(a)
  • Registration of Titles Act Cap.230 s.176
  • Registration of Titles Act Cap.230 s.177
  • Land Act Cap.227 s.91
  • Land Act Cap.227 s.91(8)
  • Land Act Cap.227 s.91(9)
  • Civil Procedure Act Cap.71 s.27
  • Civil Procedure Rules O.9 r.20(1)(a)

Cases cited (19)

  • Attorney General v Yustus Tinkasimmire & Others (Court of Appeal Civil Appeal No. 208 of 2013)
  • Kuluo Joseph Andrew & Others v Attorney General & Others (High Court Miscellaneous Cause No. 106 of 2010)
  • Arua Kubala Park Operators and Market Vendors' Cooperative Society Ltd v Arua Municipal Council (High Court Miscellaneous Cause No. 003 of 2016)
  • Council of Civil Service Unions v Minister for Civil service (1985) AC 375
  • Dr. Lam-Lagoro James v Muni University (High Court Miscellaneous Cause No. 007 of 2016)
  • Smart Protus Magara & 13 Others v Financial Intelligence Authority (High Court Miscellaneous Cause No. 215 of 2018)
  • Ssemakula Sulaiti v Commissioner Land Registration & Attorney General (High Court Miscellaneous Cause No. 75 of 2009)
  • C.R. Patel v The Commissioner Land Registration & 2 Others (High Court Civil Suit No. 87 of 2009)
  • Hilda Wilson Namusoke & 3 Others v Owalla's Home Investment Trust & Commissioner Land Registration (Supreme Court Civil Appeal No. 15 of 2017)
  • Mohamed Alibhai v Attorney General (High Court Miscellaneous Cause No. 217 of 2021)
  • Ojangole Patricia v Attorney General (High Court Miscellaneous Cause No. 303 of 2013)
  • R v Architects' Registration Tribunal [1945] 2 All E. R. 131 (KB) at p. 138
  • Council of Civil Service Unions & Others vs. Minister for the Civil Service [1985] AC 374
  • Byrne v. Kinematograph Renters Society Ltd, [1958]1 WLR 762
  • Three Rivers District Council v Bank of England (3) [3003] 2 AC 1
  • X (Minors) v Bedfordshire County Council [1995] 2 AC 633
  • EAPT Corporation Ltd v Dr. L.P Lodhia (Court of Appeal No. 52 of 1974)
  • Robert Cuossens v Attorney General (Supreme Court Civil Appeal No. 8 of 1999)
  • Uganda Commercial bank v Kigozi [2002] 1 EA 305

Full judgment

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Nyika and Another v The Commissioner Land Registration (Miscellaneous Cause 259 of 2022) [2023] UGHCCD 312 (19 October 2023)
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