Ahimbisibwe and Another v Commissioner Land Registration (Misc Cause 61 of 2022) [2023] UGHCLD 176 (5 July 2023)

THE REPUBLIC OF UGANDA

TN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DTVISIONI

MISCELLANEOUS CAUSE No. 61 of 2022

1. AHIMBISIBWE GODFREY

2. BAMUHIGA SILVER APPLICANTS

VERSUS

1. COMMISSIONER LAND REGISTRATION == == == == == == == == = == = ==== == = == == == == = RESPONDENT

BEFORE: HON. JUSTICE FLAVIA NASSUNA MATOVU

RULING

- 1. This application was brought under the provisions of S.167 of the Registration of titles Act, S.33 of the Judicature Act, S.98 of the Civil Procedure Act and O.52 rr 1,2 & 3 of the Civil Procedure Rules. It was seeking for orders that; - a. Land comprised in Kyadondo Block 212 Plot 607 at Kyebando be vested in Ahimbisibwe and Bamuhiga Silver. - b. The Commissioner Land Registration be ordered to create a Duplicate Certilicate of Title for the said land and the same be transferred into the nalnes of Ahimbisibwe Godfrey and Bamuhiga Silver; - c. Costs of this application be provided for.

- 2. It was brought by notice of motion which was supported by an affidavit sworn by the l"t applicant. The grounds of the application were laid in the notice of motion and affidavit in support. Briefly the grounds were that; - a) the applicants bought land comprised in Kyadondo Block 2l2Plot6O7 at Kyebando from a one Kintu Robert Lukudu way back in 1996. - b) the said Kintu Robert Lukudu handed over to the applicants the land title and transfer forms upon payment of the full purchase price. - c) the applicants took over physical possession of the land immediately upon the execution of the purchase agreement to date. - d) the Applicants have since lost the duplicate certificate of title \Mith no hope of finding it. - e) the Applicants through their former lawyers at M/s Ttrmwesigze, Baingana & Co. Advocates petitioned the Commissioner Land Registration for a vesting order in regard to the suit land, but the sarne was in vain. - 3. The Respondent was served with this application but did not file any affidavit in reply - 4. Counsel for the Applicants filed written submissions which I have carefully studied together with the record of proceedings. In his submissions counsel cited the law regarding grant of vesting orders under section 167 of the Registration of Titles Act and also called upon court to be guided the decision in Ddungu Charles v. Commissioner

Land Registration Misc. Cause No. 17 of 2O2O. In this case it was held that court can grant vesting orders in instances where the an applicant has made an application to the Commissioner Land Registration and the same has declined to grant it for some reason.

5. The issue to be decided by court is whether a vesting order should be issued in favour of the applicants in regard to land comprised in Kyadondo Block 2l2Plot 607 land at Kyebando.

6. Decision of Court

The law on the grant of vesting orders is embedded in section 167 of the Registration of Titles Act. This section provides that;

"If it is proued to the satisfaction of the registrar that land under this Act has been sold bg the propietor qnd the whole of the purchase moneA paid, and that the purchaser has or those claiming under the purchaser haue entered and taken possession underthe purchase, and that entry and possesslon haue been acquiesced in bg the uendor or his or her representatiues, but that a transfer has neuer been executed bg the uendor and cannot be obtained bg reason that the uendor is dead or residing out of the jurisdiction or cannot be found, the registrar maA make a uesting order in the premises and mag include in the order a direction for the pagment of such an additional fee in respect of assurance of title as he or she mag think fit, and the registrar upon the payment of that additional fee, if ang, shall effect the registration directed to be made bg section 166 in the case of the uesting orders

mentioned there, and the effecting or the omission to effect that registration shall be attended bg the same results as declared bg section 166 in respect of the uesting orders mentioned there. "

Therefore before a vesting order is issued the applicant must show that;

- a) The land is registered under the Registration of titles Act; - b) There was a sale of the said land and the purchaser paid the entire purchase price to the vendor. - c) That the purchaser or those claiming under him/her have taken possession of the purchased land and the entry has been acquiesced in by the vendor or his/her representatives. - d) That the transfer of the property has not been effected because the vendor is dead or is residing out of the jurisdiction or cannot be found.

Ideally this kind of application should be made to the Registrar of titles and the court can only intervene where the Registrar has failed to act and for no clear reason.

In the instant case, the applicants claimed that they made an application to the office of the Commissioner Land Registration way back on the 13th of October, 2015 through a letter from their Counsel. However, there is nothing on record to show whettrer they ever made any follow up of the said letter. There is equally no decision that was taken by the Registrar in relation to this letter. I am therefore not convinced that any decision was taken by the Registrar on this matter.

The case cited by counsel (Ddungu Charles - supra) guides that the Registrar must have rejected the applicants'application for a vesting order for some reason before the applicant come to court for redress.

In the instant case since no decision by the ofhce of the Commissioner Land Registration or the Registrar has been attached to show that the applicants'application was rejected,

I find that this Application is not proper before this honourable court as it does not comply with the legal procedural requirements in section 167 ofthe RTA in regard to the grant of a vesting order.

The application is accordingly hereby dismissed and the applicants shall meet their costs for the sarne.

Dated at Kampala this day of 2023. .'-J.---^rc'(

FLAVIA NASSUNA MATOVU Judge.