THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION
CIVIL SUIT NO.621 OF 2017

TRANSROAD UGANDA LIMITED:::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS
COMMISSIONER LAND REGISTRATION:::::::::::::::::::::::::::DEFENDANT

BEFORE HON. MR. JUSTICE HENRY I. KAWESA

JUDGMENT

The Plaintiff a body corporate brought this suit against the Defendant for a declaration that the
Plaintiff’s title over land comprised in Kyadondo Block 222 Plot 2353 Land at Namugongo is
valid, a permanent injunction from interference by the Defendant of the land title held by the
Plaintiff for the land comprised in Kyadondo Block 222 Plot 2353 at Namugongo and costs of
the suit.

It was the Plaintiff’s case that it is the lawful owner having purchased the suit land in 2017 from
Golden Lane Uganda Ltd. That the Plaintiff before purchase did a search at the registry and
found out that the land belonged to Golden Lane Uganda Ltd who was the registered proprietor
with no encumbrances and the Plaintiff got registered on the 16 th May 2017 as proprietor and has
been in possession un-disturbed. That on 18th August 2017, the Plaintiff received a letter from
the Defendant seeking to cancel the Plaintiff’s entry from the register alleging that the registrar
of titles erroneously removed a Court order Vide WAK 1417998 of 7 th June 2016 and that the
transfer was erroneously done as there was a subsisting Court order stopping any transactions on
land.

It was the Plaintiff’s case still that the Defendant intends to cancel the entry of Golden Lane
Uganda Ltd and have the title in the names of Benedicto Kalongoli without having Golden Land
being heard, that the Plaintiff explained to the Defendant in a public hearing held on 11 th August

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2017 that it was a bonafide purchaser for value who is neither a party to the cases of which the
said orders emanate and that the Plaintiff explained to the respondent that the power to reconcile
the two orders that is to say, the temporary and the consent order is preserve of Court and not
within the commissioner’s powers

The Defendant in its written statement of defence averred in paragraph 4 that there is no cause of
action against it as it is a government department and cannot be sued. That the notice to effect
changes on the register was made to the Plaintiff concerning land comprised in Kyadondo Block
222 Plot 2353 land at Namugongo on 17th July 2017 that this was pursuant to a complaint made
by Tubusweke David Mayinja acting on behalf of Karoli Tabuta a former registered proprietor of
the suit land to the effect that a Court order which was registered on the suit land was wrongfully
removed from the register and thereafter transferred to the names of the Plaintiff. It was the
Defendant’s case that on carrying out investigations, the Defendant found that the register
revealed that Benedicto Kalongoli was registered as proprietor of plot 2353 under instrument
No.KLA 507994 of 18/7/2011 as administrator of the estate of Benedicto Sajabi.

The Defendant averred that the Court order arising from Civil Suit No. 102 of 2011 was
registered on the 4th August 2011 under instrument No. KLA 510531 and that on the 21 st March
2012, another Court order for a temporary injunction arising from Civil suit No. 102 of 2011 was
registered under instrument No. KLA539959. That the Defendant on receipt of an application
form from M/s Sebunya & Turyagenda advocates and legal consultants dated 17 th January 2017
to cancel the Court order on the premise that a consent order had been issued on the 5 th March
2012 under Civil suit No.205 of 2011 by the High Court had been issued, subsequently removed
it from the register under instrument No. WAK147998 of 7 th June 2017 and later transferred it
into the names of Golden Lane Uganda Ltd under Instrument No.00118064 of 7 th March 2017
who in turn transferred it to the Plaintiff under instrument No. WAK00126468 of 16 th May 2017.
That in accordance with its statutory mandate, upon discovery of the error in removing the Court
orders referred to in Civil suit No.102 of 2011 whereas the order used to remove them refers to
Civil Suit No.295 of 2011, it sought to have the error rectified and cancel the Plaintiff’s transfer
and have the entry of Bendicto Kalongoli Iga (administrator of the estate of the late Benedicto
Sajabi) reinstated.

The Defendant averred that a public hearing was held in respect of the matter on 11 th August and
that they agreed that there had never seen a Court order vacating the temporary injunction on the

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suit land, that the temporary injunction entry be reinstated and Benedicto Kalongoli Iga be
reinstated as the proprietor of the suit land.

Only the Plaintiff filed written submissions which shall be relied on together with the pleadings
in resolution of the issues.

Issues as In the Joint Scheduling Memorandum.

1. Whether the Defendant has jurisdiction to cancel the certificate of title for the Plaintiff in
the circumstance of the case?

2. Whether the title deed can be impeached where no fraud is pleaded against the Plaintiff

3. What remedies are available to the parties

Resolution of the Issues

Counsel for the Plaintiff in her submission handled issue 1 and 2 concurrently and issue 3
separately, therefore Court will follow suit.
Issue One;
Whether the Defendant has jurisdiction to cancel the certificate of title for the Plaintiff in the
circumstance of the case?
Issue two;
Whether the title deed can be impeached where no fraud is pleaded against the Plaintiff?

On the 1st issue, Counsel for the Plaintiff submitted that the commissioner land registration lacks
powers to cancel the Plaintiff’s entry in the circumstance of the case. That if there were any
errors, they were done by the Defendant itself and that to condemn the Plaintiff on errors it was
not privy to would be to abolish the indefeasibility of title principle which is protected in sections
59, 64, 77,176(c) and 181 of the Registration of Titles Act which is the hallmark of the Torrens
system of title by registration practiced in Uganda. That the irregularities talked about by the
Defendant occurred before the Plaintiff bought the suit property, that unless there is fraud on the
Plaintiff and that none was alleged.

Counsel contends that the Defendant heavily relies on Section 91 of the Land Act against the
Registration of Titles Act and she cited the case of Patel versus Commissioner Land
Registration &2 Ors HCCS No. 87 of 2009 in support of her submissions where it was stated
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that Section 91 of the Land Act was never intended to abolish this age old concept of
indefeasibility of title. Indeed, Section 91 (1) of the Land Act begins with the expression, (1)
subject to the of the Registration of Titles …

Further, that the Plaintiff holds a certificate, it purchased the property in good faith, it had no
knowledge of any encumbrance/‘contradictory Court orders’ at the time of purchase from the
vendors who had apparent title and that the Defendant has not pleaded that the Plaintiff was
fraudulent.

Needless to note, Under Section 64 (1) of the Registration of Titles Act Cap 230. The title of a
registered proprietor is indefeasible except in case of fraud. It is trite law that fraud must be
strictly pleaded and proved the burden being heavier than on a balance of probabilities.

It was the Plaintiff’s evidence that it purchased the suit property from Golden lane Uganda Ltd
after conducting a search in the land registry and found that the land was in the names of the
vendor and consideration paid for the same.

Section 101 (1) of the Evidence Act Cap 6 provides that;

“Whoever desires any Court to give judgment as to any legal right or liability dependent
on the existence of facts which he or she asserts must prove that those facts exist.” The
case of Sebuliba versus Co-operative Bank Ltd [1982] HCB 129 considered the above
sections where it was held that the burden of proof in civil proceedings lies upon the
person who alleges.

It is alleged that the special certificate of title to the suit land which was issued to the Plaintiff
under instrument No.WAK00126468 of 16th May 2017 was issued in error. The Defendant
contends that on discovery of an error, it has a statutory mandate to rectify and cancel the
Plaintiff’s transfer.

Under Section 91 of Land Act, the special powers of the registrar provided under this section are
subject to the Registration of Titles Act, it provides that, the registrar shall without referring a
matter to a Court or district land tribunal have powers to take such steps as are necessary to give
effect to this Act, whether by endorsement or alteration or cancellation of certificate of title, the
issue of fresh title or otherwise.

Under Section 91(2) of the Land Act, provides that the registrar shall where a certificate of title
or instrument.

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 a) Is issued in error
b) ……………………
c) ……………

Call for the duplicate certificate of title or instrument for cancellation, or correction or delivery to
the proper party, these powers are subject to the Registration of Titles Act (emphasis is mine).

It is an established principle of law that jurisdiction is a creature of statute, it is only vested by

law and it cannot be assumed. Like in this case, the jurisdiction vested in the Defendant under
Section 91 of the Land Act is subject to the Registration of Title’s Act therefore, challenging
jurisdiction of the Defendant should be treated with seriousness and the Land Act must be
applied in line with what the Registration of Titles Act provides.

To find whether the Defendant has jurisdiction, emphasis must be put on the complaint before
the Defendant which she states it is an error occasioned by two different Court orders which is
also evidenced in Annexture ‘A’ to the Defendant’s pleadings a “Notice of Intention to Effect
Changes”. As noted above under Section 91(2) (a) of the Land Act, the registrar of titles has
special powers to call for a duplicate certificate of title for cancellation of title where it is issued
in error therefore it is within her powers however, the Plaintiff is a 2 nd proprietor after the alleged
errors had been made and discovered by the Defendant, it pleads not being a party to the orders
alleged by the Defendant.

Article 139 (1) of the Constitution empowers the High Court with unlimited jurisdiction in all
matters brought before it.
In the case of CR. Patel versus the Commissioner Land Registration and 2 Others, HCCS
No.87 of 2009, one of the issues in that matter was whether the 1 st Defendant had jurisdiction to
cancel the certificates of title of the Plaintiff.

Justice Mulagira Joseph had this to say;-

“Even if there were errors or irregularities in the issue of the special certificates of title
and transfer to Ddamulira Stephen which is not proved, the Plaintiff was not a party to
the errors committed in the office of the 1 st Defendant by her officers. To condemn the
Plaintiff on account of errors he has never been privy to would be to abolish the
indefeasibility of title principle which is protected in sections 59, 69, 77,176(c) and 181
of the RTA and which is the hallmark of the Torrens system of title by registration in

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 Uganda. Section 91 of the Land Act was never intended to abolish this old age concept of
indefeasibility of title…..errors, illegalities and even frauds in earlier transactions cannot
entitle the 1st Defendant to cancel a registration of a person who is not privy to the
errors”.

Also in the case of;

The Administratrix of the estate of late James Katubale Kagudde Mukasa versus The
Commissioner Land Registration and 2 Ors, HCCS No.2392 of 2016; formerly Nakawa Civil
Suit No. 028 of 2010. Justice Bashaija K. Andrew stated that;

“…even if the commissioner for land registration was to cancel the certificate of title on
grounds of errors or illegalities, he or she would have no jurisdiction where the
registered proprietor was not party to the errors or illegalities”.

Under Section 59 Registration of Titles Act possession of a certificate of title by a registered

person is conclusive evidence of ownership of the land described therein. Further, under Section
176 (c) (supra) a registered proprietor of land is protected against an action for ejectment except
on ground of fraud. (See Kampala Bottlers versus Damanico (U) Ltd, S. C. Civil Appeal No. 22
of 1992 and H. R. Patel versus B.K. Patel [1992 - 1993] HCB 137). Therefore, the Plaintiff can
only be impeached on grounds of illegality or fraud, attributable to the transferee.

Therefore, since fraud has not been pleaded on the part of the Plaintiff prior to his registration on
title and he was not a party to the alleged errors, his title is conclusive evidence of ownership of
the suit land. The Plaintiff is a bona fide purchaser for value without notice. It purchased the land
after conducting all due diligences and thus its title is indefeasible.

Issue 3;
What remedies are available to the parties?
Having held that the suit property belongs to the Plaintiff, it has the following remedies.

a. A declaration that the Plaintiff’s title over the land comprised in Kyadondo Block 222
Plot 2353 land at Namugongo is valid.

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 b. The Plaintiff also prayed for an order of a permanent injunction restraining the Defendant
from interfering with the land title comprised in Kyadondo Block 222 Plot 2353 land at
Namugongo. Having found that the Plaintiff has a valid title to the suit land, an order of
permanent injunction is issued restraining the Defendant from interfering with the
Plaintiff’s title.

c. Costs of the suit.

Judgment for the Defendant as above.

………………………
Henry I. Kawesa
JUDGE
14/03/2019

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14/03/2019

Nabukenya on brief for Nakachwa Sarah for the Plaintiff.

No representative.
Mugabi Ronald; Legal for the Plaintiff.

Court:
Judgment delivered to parties above.

………………………
Henry I. Kawesa
JUDGE
14/03/2019

………………………
Henry I. Kawesa
JUDGE
14/03/2019