SSETUBA C MISAIRI v THE REGISTRAR OF TITLES MISCELLANEOUS CAUSE NO.

55 OF 2011

This was an application by notice of motion brought under sections 177 & 178 of the Registration
of Titles Act and Order 48 rules 1 & 2 of the Civil Procedure Rules (CPR) for orders

i) The Chief Magistrate’s court of Luwero vide criminal case no. 378 of 2009 held the
two respondents and two others guilty of having forged a judicial document c/s 349 of
the Penal Code Act (PCA) and obtaining registration by false pretences c/s 312 of the
PCA.
ii) That the Applicant now applies to this court for consequential orders that the said
forged titles be cancelled and the Land registry as provided under section 177 of the
RTA have the Applicant registered as the proprietor.

Held; In Re Ivan Mutaka [1981] HCB 28 it was held that in order in order to rely on the
provisions of section 185 (now section 177) of the RTA and have the register book rectified by
cancellation, the Applicant who invokes it has to satisfy court that he/she has recovered the land,
estate or any interest in question by any proceedings from any person registered as proprietor of
the land. In Re Habib Lubwama [1991] HCB 74 it was held that an order stemming from a
criminal case can form a basis for a consequential order.

The Applicant is the administrator of the late Eryeza Kyakwambala who was the registered
proprietor of the land in question. He also has powers of attorney granted to him by the
Administrator General in respect of the estate of the late Eryeza Kyakwambala under which the
land in question falls. The Chief Magistrate of Luwero in his judgment annexed to the Applicant’s
affidavit as Annexture C convicted the people who had registered themselves on the land through
forgery. He noted that the offence is rampant in this region of Buganda where people are being
deprived of their land with impunity.

In the premises and on the foregoing authorities, I am satisfied that has proved the grounds of his
application against the Respondent

In Andrea Lwanga V Registrar of Titles [1980] HCB 24 it was held that before a person has
obtained judgement for the recovery of land against a registered proprietor could be registered as
proprietor, he first had to apply to the court to make a consequential order, which is made
consequent upon recovery of land; and that this was the only method prescribed by the RTA. In
Uganda Blanket Manufacturers Ltd V Chief Registrar of Titles Miscellaneous Application
No. 55/1993, Ongom J, it was held that in applications under section 185 (now 177) of the RTA,

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the Chief Registrar should be made respondent, and that it was pointless to make a person from
whom land had been recovered the respondent.

In DARLINGTON KAMPAMA V THE REGISTRAR OF TITLES MISCELLANEOUS

CAUSE NO. 12 OF 2013

. The applicant filed civil case number 009/2012 in Mpigi Chief Magistrate’s court against
Ibulaimu and the respondent, which was determined in the applicant’s favour. This is evidenced
by the certified copies of the proceedings, judgement and decree attached to his supporting
affidavit as annextures A, B and C respectively. The annextures show that trial court ordered that
the name of Ibulaimu Kabanda Kironde be cancelled from the certificate of title to the said suit
land and that the said order be forwarded to this court for implementation.

After citing the above authorities; In the premises, and on the foregoing authorities, I am satisfied
that the applicant has proved the grounds of his application against the respondent. I allow the
application.

David Sekajja Nalima v Rebecca Musoke - Civil Appeal No.12 ot 1985

The respondent is the widow of the laterofatimer1-1usoke who, prior to hi death, was the registered
owner of the property. The respondent brought an action in the High Court against the appellant
for a declaration’ that the registration of the appellant was null and void on account of having been
obtained from persons who did not have lawful authority to effect the transfer, or through fraud.

The deceased left a will in which the respondent and Mr. John Kazoora Advocate
were named executrix and executor, respectively. The deceased’s children were named in the will.
The respondent and Mr. Kazoora applied to the High Court for the grant of probate of the will.
Notice of the application was duly advertised in the Uganda Times newspaper of 3rd October, 1980.
The High Court (Oder J.) granted the application on 29th April 1981. The respondent found it
prudent not to administer
the estate because Mr. Kazoora and the elder children were out of Uganda.

After the grant of probate, one Dick Sengomwami Semanda, who was neither named in the will
nor known to the respondent, applied, as a son of late Prof. Musoke, to the Chief Magistrates Court
of Mengo for letters of administration of the estate of the late Prof. Musoke. The Court granted the
letters of administration to him on 7th August 1981. On 5th January, 1982, he was registered as the

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proprietor of the suit property.
On 30th March, 1982, he transferred the property to one Lameck Nteyafa Sendaula in consideration
of Shs. 555,500/= and he was registered as the proprietor of the property on 29th April, 1982.
Lameck Nteyafa Sendaula in turn transferred the property to the appellant in consideration of Shs.
1,500,000/=, and he was registered as proprietor of the property on 29th December, 1982.

Whether the letters of administration intended to one Dick Sengowami Semanda on 7th
August 1981 were capable in law to confer title to land in issue or question.

(b) whether third parties could derive title at law from a transaction arising out of such
letters of administration.

(c) Whether the defendant was a bonafide purchaser for value of the land in question.

The first two issues agreed upon by the parties at the trial required the trial judge to decide whether
the letters of administration granted to Semanda were capable in law of conferring title to the suit
property, and secondly whether third parties could derive good title at law from a transaction
arising out of such letters of administration. . With respect I think the first to issues could have
been combined into one namely whether the title of Prof. Musoke to the suit property was
transferred to third parties through fraud.

“The effect of this section is that once a registered proprietor has purchased the property in
good faith his title cannot be impeached on account of
the fraud of the previous registered proprietor. A bona fide purchaser therefore obtains a
good title even if he purchases from a proprietor who previously obtained by fraud.

However, before a purchaser can claim the protection of S. 189 of the Registration of Titles
Act, he, must act in good faith. If he is guilty of fraud or sharp practice he will cease to be
innocent and therefore lose the protection. An action against him under Section 184 (c) of
the Act which provides in relevant parts as follows:

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 “184. No action of ejectment or other action for recovery of any land shall lie or be
sustained against the person registered as proprietor under the provisions of this Act except
in any of the following cases –

(a)
(b)
(c) the case of a person deprived of any land by fraud as against a person deriving
otherwise than as a transferee bona fide for value from or through a person
registered through fraud;

It I think well settled that fraud means actual fraud or some act of dishonesty. In Wainiha Saw
milling co. Ltd V. Wainone Timber Co. Ltd. (1926) A.C 101, Lord Buckmaster defined fraud, at
page 106, as follows:

“Now, fraud clearly implies some act of dishonesty. Lord Lindley in Assets Co. V. Mere
Roihi (1905) A.C.176., states, “Fraud in these actions i.e. actions seeking to affect a
registered title means actual fraud, dishonesty of some sort not what is called constructive
fraud – an unfortunate expression and one very apt to mislead, but often used for want of
a better term to denote transactions having consequences in equity similar those which flow
from fraud.”

Where there are a series of subsequent transfers, for the title of the incumbent registered
proprietor to be impeachable, the fraud of the previous proprietors must be brought home
to him. A fraud by persons from whom he claims does not affect him unless knowledge of
it is brought home to him or his agents. The mere fact that he might have found out the
fraud had he been more vigilant and had made further inquiries which he omitted to make
does not itself prove fraud on his part. But if it be shown that his suspicions were aroused
and that he abstained from making inquiries for fear of learning the truth, the case is very
different and fraud maybe properly ascribed to him.”

In John Katarikawe V. William Katwiremu & Another, Civil Suit No 2 of 1973 (unreported) the
High Court, while dealing with S.145 of the Act, said,

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 “Although mere knowledge of unregistered interest cannot be imputed as fraud under the
Act it is my view that where such knowledge is accompanied by a wrongful intention to
defeat such existing interest that would amount to fraud. In the absence of a statutory
definition of fraud I would adopt the definition in a similar Kenyan Statute which defines
fraud as “fraud shall on the part of a person obtaining registration include a proved
knowledge of the existence of an unregistered interest on the part of some other person,
whose interest he knowingly and wrongfully defeats by such registration.” I take this view
because I doubt whether the framers of the Act ever intended to encourage dishonest
dealings in land such as manifest in this case.”

If the advocates were acting for the appellants as well, could notice of the respondents’
unregistered interest and of the fraud of Sendaula be imputed on the appellant? It seems to me that
where a purchaser employs an agent, - such as advocate to act on his behalf the notice he receives,
actual or constructive, is imputed on the purchaser. And similarly where the advocate acts for both
parties any notice he acquires is ordinarily imputed on both parties. There is an exception to the
principle where the agent deliberately defrauds the purchaser.

In their book, The Law of Real Property 3rd Edn. at p.129, Megarry and Wade write as follows:

“If a purchaser employs an agent such as a solicitor any actual or constructive notice which
the agent receives is disputed to the purchaser. The basis of this doctrine is that a man who
empowers an agent to act for him is not allowed to plead ignorance of his agent’s dealing.
Thus where a solicitor discovered an equitable mortgage on the title was deceived by a
forged receipt into believing that the mortgage had been discharged, the purchaser had
imputed notice of mortgage and was bound by it:

It should also be noted that the appellant did not go further to ask Ochiti who was his landlord.
Instead he went to investigate the title at the Land Office. It is reasonable to infer from the
appellant’s conduct that his suspicions were aroused but that he feared to learn the truth from the
tenant, by inquiring from him who was his landlord. Had he done so he would have definitely

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found out that Ochiti’s landlord had been Prof. Latimer Musoke. As Lord Lindley said in Assets
Co. Ltd. V. Mere Roihi (supra) where the purchaser’s suspicions are aroused but he abstains from
making inquiries for fear of learning
the truth, fraud may be properly ascribed to him.

While the burden of proving the case lies on the plaintiff, it is well settled that the onus of
establishing the plea of a bona fide purchaser lies on the person who sets it up. It is a simple plea
and is not sufficiently made out by proving purchase for value and leaving it to the plaintiff to
prove notice if he can.

In view of the evidence I have considered regarding the conduct of the appellant, I am unable to
find that he succeeded in establishing that he was a bona fide purchaser for value without notice
of the fraud of the previous registered proprietors through whom he derived title. On the contrary
there was, in my view, sufficient circumstantial evidence to saddle him with fraud. That being so,
the appellant cannot claim the protection of S. 189 of the Registration of Titles Act.

KONDE MATHIAS ZIMULA V BYARUGABA MOSES and GRACE NAMPIJJA

H.C.C.S. NO. 66 OF 2007

In my view the moment a Special Certificate of Title was issued, the duplicate Certificate which
was by a Statutory Declaration proved lost ceased to be evidence of proprietorship. Section 70 of
the Registration of Titles states that the Special Certificate of Title shall be available for all
purposes and uses.

“... and the Special Certificate shall be available for all purposes and uses for which the
duplicate Certificate of Title so lost or destroyed or obliterated would have been available,
and shall be equally valid with the duplicate Certificate of Title to all intents...”

In view of the above provisions once a Special Certificate is issued on application by the registered
proprietor it shall become a replacement for the lost or destroyed Certificate of Title for ever. Even

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if the original duplicate Certificate of Title was to be found, it would be the registered proprietor
and not anybody else to seek its reinstatement and more importantly, the Registrar of Titles would
call for surrender of the Special Certificate of Title for purposes of cancellation. This was not
done, and therefore the registered proprietor, holder of the Special Certificate of Title was denied
opportunity to be heard in reversing the status of the Register. This was irregular and illegal and
Courts of Law can perpetuate illegality once brought to its attention.

Fraud has been adequately defined by superior of Courts in Uganda. In Fredrick J. K. Zaabwe Vs
Orient Bank Ltd. Civil Appeal No. 4 of 2006 (Supreme Court) which has been widely followed
stated that fraud is “intentional perversion of the truth for purposes of inducing another in reliance
upon to part with some valuable thing belonging to him or to surrender a legal right. A false
representation of a matter of fact whether by word or by conduct, by false or misleading
allegations, or by concealments of that which deceives and is intended to deceive another so that
he shall act upon it to his legal injury.” “... Anything calculated to deceive, whether by a single
act or culmination, or by suppression of truth, or suggestion of what is false, whether it is by direct
falsehood or the innuendo by speech or silence, word of mouth, or look or gesture ... a generic
term, embracing all multifarious means which human ingenuity can devise and which are resorted
to by one individual to get advantage over another by false suggestions or by suppression of truth,
and includes all surprise, trick, cunning, dissembling, and any unfair way by which another is
cheated...”

Any person who puts up a defence of being a bona fide purchaser has the burden of proof to adduce
evidence that establishes that he or she is actually a bona fide purchaser for value without Notice
of any fraud. He must prove the following elements of this defence:-

(a) That he has a valid Title from a person registered as a proprietor.

(b) Must have paid valuable consideration.

(c) Must have acted in good faith without Notice of fraud whether actual or implied.

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 See DAVID SEJJAKA Vs REBECCA MUSOKE. Supreme Court, Civil Appeal No. 12 of
1985.

... a purchaser who knows that the property purchased is in occupation of some person other
than the Vendor is affected with constructive notice of the right of the occupier but if he
registers a conveyance without making further inquiries he will lose the benefit of
registration only if in the circumstances of the case abstention from inquiry evidences a want
of good faith.”

in ORINDA DE SOUZA Vs KASAMALI MANJI (1962) EA at page 758. That:-

“The cardinal principle of the Statute is that the Register is everything, and that except in
cases of actual fraud on the part of the person dealing with the registered proprietor has an
indefeasible Title against all the world.”

My view is that this principle has been further qualified by the detailed position stated by L.
VOUMARD Q.C. (Supra).

In my view, the law has not been static and the duty to do due diligence in the designs of fraud
requires the intending purchaser to do more than merely looking at the Certificate of Title but to
investigate the validity of the Title. The mischief of fraud and elements of fraud have overtime
mutated to involve the Registrars of Titles. For instance, there are cases where Instrument numbers
that are used to register proprietorship have been found to be none existent or Instruments that
rightly belong to other properties e.g. for caveats. This necessitates departure from what the
position of the Courts in 1962, 52 years ago when the case of De SOUZA (Supra) was decided. I
have found more instructive authority in a more recent decision by the Uganda superior Court, in
the case of:- SIR JOHN BAGEIRE Vs AUSI MATOVU C.A. NO. 7 OF 1996 (C.A.U.)

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The Court of Appeal considered what was expected, in that case, to discharge the burden of proving
the plea of being a bona fide purchaser for value without Notice and His Lordship G. M. OKELLO,
J. A, (as he then was) stated:-

“It must be noted that Lands are not vegetables which are bought from unknown sellers.
Lands are very valuable properties and buyers are expected to make thorough investigations
not only of the land but also of the owner before purchase.”

Even if the search had been done, the purchaser had the duty to satisfy himself that the registered
person was the owner of the property being searched. (Underlined for emphasis).

The purchaser had a duty to make inquiries about the occupants of the property; if he had he should
have found that this property was built by the Plaintiff who was in occupation at the material time.
A purchaser who knows or who ought to have found out that the property purchased is in the hands
or occupation of some person other than the Vendor is affected with constructive notice of the
right of the occupier and if he registers a conveyance without making further inquiries he will lose
the benefit of registration. The abstention from inquiry evidences a want of good faith or
fraudulent conveyance.

Courts of justice will not allow a person to keep an advantage which he obtained in bad faith.
Fraud once pleaded and proved it vitiates judgments, contracts and all transactions whatsoever

GRACE MANJERI NAFULA V BRIG. GEN.ELLY KAYANJA and THE

COMMISSIONER LAND REGISTRATION CIVIL SUIT NO. 136 OF 2011

Further in Kampala Bottlers Ltd vs. Damanico (U) Ltd, SCCA No.22 of 1992, it was also held

that fraud must be strictly proved, the burden being heavier than one on balance of probabilities

generally applied in civil matters. It was held further held that;

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“The party must prove that the fraud was attributed to the transferee. It must be attributable
either directly or by necessary implication, that is; the transferee must be guilty of some
fraudulent act or must have known of such act by somebody else and taken advantage of such
act.”

From the above cited provisions of the law, it is quite clear that the Commissioner for Land
Registration, the 2nd defendant, was also under duty not to effect any registration owing to the
subsistence of the plaintiff’s caveat on the title at the time

Apparently the 2nd defendant instead went ahead to register the 1st defendant on the suit land. Court

thus finds that the plaintiff has duly attributed fraud on the 1st defendant by showing that the 1st

defendant had actual knowledge of the existence of the caveat but went ahead to have his name

registered on the title.

The 1st defendant did not claim having owned the house or the crops. This means he has never

taken possession of the suit land. He was thus required to inquire from the occupants of the

premises on the suit as to what their interest was in the suit land. He did not; either for fear of

knowing the truth or in order to intentionally defeat the plaintiff’s interest in the land. In either

case, it would amount to actual fraud.

In the case of Nabanoba Desiranta & Another vs. Kayiwa Joseph & Another, HCCS No. 496 of

2005 quoting the case of UP&TC vs. Abraham Katumba [1997] IV KALR 103, it was held that

as the law now stands, a person who purchases an estate which he knows to be in occupation and

use of another other than the vendor without carrying out the due inquiries from the persons in

occupation and use commits fraud. Further citing Taylor vs. Stibbert [1803 – 13] ALL ER 432,

the court held that the failure to make reasonable inquiries of the persons in possession and use of

land or the purchaser’s ignorance or negligence to do so formed particulars of fraud. Similarly, in

the case of Hajji Nasser Katende vs. Vithalidas Halidas & Co. Ltd., CACA No.84 of 2003 citing

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the case of Sir John Bageire vs. Ausi Matovu, CACA No.07 of 1996, at page 26, Kikonyogo,

DCJ, quoting Okello JA. (as he then was) emphasized the value of land property and the need for

thorough investigations before purchase, and held inter alia that;

“Lands are not vegetables that are bought from unknown sellers. Lands are valuable

properties and buyers are expected to make thorough investigations; not only of the land

but of the sellers before purchase.”

C.R. PATEL V THE COMMISSIONER LAND REGISTRATION and Ors HCCS NO. 87
O 2009

Under the repealed Section 69 of the RTA (1964 Ed), the Registrar of Titles (now
Commissioner Land Registration) was empowered to cancel certificates of title and
entries therein on grounds of:

(a) Errors;
(b) Mis-description of land or boundaries
(c) Illegal endorsements or illegality obtained or retained instruments
(d) Wrongfully obtained instrument or endorsements.

The legislature deliberately removed reference to “fraudulently” obtained or retained

certificates, instruments or endorsements. When, as in this case, an allegation of fraud is
made the proper avenue for adjudication over the matter is S.176 ( c ) of the Registration
of Titles Act, where the person alleging fraud files a suit to cancel the fraudulent entry.
Fraud is such a serious allegation that it must be specifically pleaded and proved beyond
a mere balance of probabilities. It cannot be raised and casually proved before the
Commissioner Land Registration.

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A special certificate of title once issued under Section 70 of the Registration of titles Acts
simply replaces the Duplicate Certificate of title which is lost or presumed lost. It is the
same case with a substitute certificate of title which replaces a lost original certificate of
title under Section 71 of the Registration of Titles Act. The replacement is not a new or
separate certificate of title and the lost or destroyed certificate of title is not “ a prior”
certificate of title in terms of Section 64 of the Registration of Titles Act since it is not a
separate part of the Register (folio). The Special and Duplicate Certificates of title are all
based on one folio of the register (white page).

In Hajji Nasser Kitende vs Vithalidas Haridas & Co. Ltd Civil Appeal No. 84 of 2003,
Mukasa Kikonyogo DCJ citing Hannington Njuki vs Nyanzi held that for a purchaser to rely
on the bonafide doctrine he must prove that:

(a) He holds a certificate of title.

(b) He purchased the property in good faith.
(c) He had no knowledge of the fraud.
(d) He purchased for valuable consideration.
(e) He vendors had apparent valid title.
(f) He purchased without notice of any fraud.
(g) He was not party to the fraud

HON. JUSTICE PROF. DR. GEORGE W. KANYEIHAMBA V THE COMMISSIONER

LAND REGISTRATION And RICHARDSON MUSINGUZI MISCELLANEOUS CAUSE
NO. 79 OF 2011

Applications under section 182 of the RTA usually arise where the Registrar has, or has not,
exercised statutory powers conferred on him/her under the law on request by a land owner or
proprietor. The Registration of Titles Act (RTA) and the Land Act notably spell out special powers
accorded to the Registrar. Sections 73 of the RTA and 90 of the Land Act for instance empower
the Registrar of Titles to call in duplicate certificates of title for the purposes of, among other
things, rectifying or cancellation as the case requires. Section 91(8) & (9) of the Land Act requires
the Registrar, while exercising the said functions, to give 21 days’ notice to the party likely to be
affected by the decision, to provide such party with an opportunity to be heard, to conduct the
hearing within the rules of natural justice, to give reasons for any decision, and to communicate
the decision in writing to the parties and the Committee. It would appear that the Registrar acts as

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a quasi judicial body when exercising the said functions. Section 91(10) & (11) of the Land Act
provides for a right of appeal by the party aggrieved by the Registrar’s decision. The appeal is to
the District Land Tribunal, and a transfer is not to be effected until the determination of the appeal.

District Land Tribunals that were set up by the Land Act, as amended, have since ceased to operate
after expiry of their contracts. However, the Chief Justice issued Practice Directive No. 1 of 2006
which enables magistrates of the rank of grade 1 and above to exercise jurisdiction over land
matters until new chairpersons and members of District Land Tribunals are appointed or otherwise.
The High Court has also been handling matters where the Registrar’s decisions are challenged by
land owners or proprietors under section 182 of the RTA.

The question at this point is whether the letter in question was an application to the registrar
to rectify the title. Forms of applications to amend the certificate and rectify the register
are contained in the nineteenth schedule of the RTA. Section 200 of the RTA is permissive
of the form an application may take. Under the said section the forms may be modified or
altered in expression to suit the circumstances of every case, and any variation of the said
forms in any respect not being a matter of substance shall not affect their validity or
regularity

The kind of information required to be given in the forms set out by the RTA includes details like
nature of proposed amendment or rectification, declarations about how and by whom the land has
been occupied and used, names and addresses of persons occupying the land, supposed cause of
discrepancy, or a statement that the applicant is not able to assign any specific cause for the
discrepancy, among other particulars.

In the instant case, in view of section 200 of the RTA which is permissive about form, I
would not fault the applicant for writing an ordinary letter in applying for cancellation of a
title. However, I do not find the substance of the letter to be an application in the context
envisaged on rectification of titles and certificates under the RTA. The substance of the
letter hardly sets out the information required in such applications as highlighted in the
forms in the nineteenth schedule to the RTA

Order 6 rule 3 of the CPR provides that in all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all cases in
which particulars may be necessary, the particulars with dates shall be stated in the pleadings. In
Fredrick Zaabwe V Orient Bank & Others Civil Appeal No. 04/2006 Katureebe J, at page 6,
stated, “In my view, allegations of fraud need to be fully and carefully inquired into. Fraud is a

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serious matter, particularly where it is alleged that a person lost his property as a result of fraud
committed upon him by others.”
In J. W. Kazoora V Rukuba, Civil Appeal No. 13/1992, Oder JSC held that allegations of fraud
must be specifically pleaded and proved. The degree of proof required is one of strict proof, but
not amounting to one beyond reasonable doubt. It must however be more than a mere balance of
probabilities. Also see Hannington Wasswa V Maria Onyango Ochola & Others SCCA No.
22/1993.

In the circumstances, and on basis of the authorities cited, it is my opinion that the allegations of
fraud raised by the applicant against the respondents in the instant case require a full and careful
inquiry where witnesses can be cross examined. This would, in my opinion, appropriately be
through an ordinary suit rather than by notice of motion where the evidence adduced is mainly
through affidavit evidence. It would be impracticable for this court to address the allegations in
this application without having to inquire into the allegations of fraud. I find this application by
notice of motion incompetent to address the allegations of fraud raised against the respondents

MARIA CHRISTINA VALVO V THE COMMISSIONER LAND REGISTRATION

MISCELLANEOUS CAUSE NO. 93 OF 2010

In effect the respondent has neither shown any reasonable cause why she in the first instance made
the entry “surrendered” on the original certificate of title for the land comprised in Kibuga Block
28 Plot 760 land at Makerere or failed to correct it once it was drawn to her attention by the
applicant. Application allowed.

NANTONGO HARRIET and ors v NAMUYIGA ROSE MISC APPLICATION NO.0064

OF 2016

The brief facts are that the Applicant was a successful party in Civil Suit No. 032 of 2014 where
the Magistrates Court advised for cancellation of the title in favour of the Applicant under Section
177 of the RTA; Court refused to grant the order under S. 177 since the respondent was in
advanced stages of appealing the decision of the Magistrate’s Court.

I agree with the arguments by Counsel for the Applicants that Section 177 of the Registration of
Title Act does not envisage any proof of anything else save the two ingredients stated above. There
was recovery of land, estate or interest from the registered proprietor.

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The proceedings leading to such recovery of land is not barred There is no indication that the fact
of an appeal can be a bar to any proceedings under the said section. However, the wording of the
section uses the word ‘the High Court may direct the Commissioner to cancel the Certificate of
Title…..’

It is trite law that the use of the word ‘may’ always imputes a grant of discretion as opposed to the
use of ‘shall’ which imputes a mandatory requirement. This means that Court has to carefully
consider the matter and draw from the common law usage of discretion so that it aids the parties
to ensure that the ends of justice are met by the decision it finally takes.
I will hold that since the Respondent has exercised the right of appeal and has shown evidence of
the Memorandum of Appeal, the technicalities involved as to the time frames will be left to the
attention of the appellate Court, but this Court will take Judicial notice of the intended appeal and
hence find it a good reason to withhold from exercising the provisions of Section 177 of the
Registration of Title Act, thereby refusing to grant the consequential order of cancellation of title.I
am not persuaded by the arguments calling for the strict application of Section 177 of the
Registration of Title Act (inspite of the appeal) as argued by the Applicants.I agree with the
Respondents that the Respondent should be allowed to pursue the appeal and then depending on
the findings on appeal, the parties rights will be sorted out.

In Re Habib Lubwama [1991] HCB 74 it was held that an order stemming from a criminal case
can form a basis for a consequential order. However, whereas a Magistrate is entitle
to declare a transaction or transfer null and void, and whereas he can
order restoration of the land to the rightful owner, the effect of
the consequential order under section 177,of the R,T.A is within
the exclusive jurisdiction of the High Court. It is only the High Court
which has the exclusive jurisdiction to make. an order directing
the Chief Registrar of Titles (now Commissioner for Land
Registration) to cancel the name of the guilty-party from the
register of titles and substitute it with the name of the rightful
owner.

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