09th UJOA-JTI DIALOGUE SERRIES

17th May 2023.

Topic: Recent Developments at the Land Registry

Presentation by Ssekitto Moses1

My Lords, Your Worships, I am humbled by the opportunity to make a presentation before

the members of the bench. I want to thank the organisers for having given me this
opportunity to interact with this audience. I must admit the topic is a bit wide and in light
of the time, I may not exhaustively touch every matter but will try to consider a number of
issues as touching the office of the Commissioner Land.
1.0 . Commissioner Land Registration.

1.1 Section 3 of the Registration of Titles Act Cap 230: - creates the Office of the
Commissioner Land Registration and mandates it to have charge and control of the
Office of Titles and to exercise the powers and perform the duties conferred or
imposed upon the Commissioner for Land Registration by this or any other Act.
1.2 The cardinal role of the Commissioner Land Registration is to maintain the Sanctity
of the Register. Thus, whatever he or she does is intended to ensure that the
Register is clear of any defects for example the Register should reflect the true
owners without elements of double titling, double Ownership, No titling in forest
reserves and other protected areas like wetlands.
1.3 The Commissioner Land Registration is the Custodian of the Land Register. See
Commissioner Land Registration & Anor v Lukwajju (Civil Application No. 12
of 2016) [2017] UGSC 5 (14 February 2017), Stanbic Bank Limited Versus
Sunbelt Holdings Limited Misc Appn. No. 1731 of 2022 (Arising from EMA 403
of 2021) (Arising from Civil Suit No. 202 of 2021).
2.0 LAND INFORMATION SYSTEM (LIS): -
2.1 The Ministry of Lands, Housing and Urban Development is operating the Land
Information System (LIS) (Digital Register) as one of the land tool in Management
and Administration of land in the country.
2.2 Under the LIS, all the Land Departments operate under a chain link. That is the
Survey and Mapping, Land Administration, Valuation, Physical Planning and Land

1
Advocate and Ag. Principal Registrar of Titles, Head Litigation working with the Ministry of Lands, Housing and
Urban Development
Registration are operating under the system as opposed to before where all the
departments were doing things separately.
2.3 Under the Land Information System (LIS), for transactions to be completed, they go
through all the processes for checks and balances. It’s more or so a Conveyer belt.
For example, a transaction of a sub division will be commenced under the Surveys
and Mapping department and forwarded to the Physical Planning, then to the
Valuation (where necessary) and then forwarded to Land administration and finally
to Land Registration for the final product output being a title. This is intended to
reduce on the rather rampant forgeries and issues of double titling, titling in forest
reserves and protected areas among others. Land transactions have been
decentralized to the 22 Zonal Offices across the country.
3.0 Transfer of Title.
3.1 On top of the usual requirements for transfer of title to wit; - Transfer forms, Consent
forms, Passport Photos, National Identity Cards, Practicing Certificate for Witnessing
Advocate,
3.2 Tax Identification Number(TIN): It is now MANDATORY for a Vendor and purchaser
to attach a valid TIN for ALL transactions above 10M, as stipulated early in their URA
guidelines.
3.3 A sales agreement, is now MANDATORY for all transactions related to land transfer.
One is required to attach a sales agreement.
3.4 Sales agreement has to be registered at URSB and a FEE paid. At the stage of URA
assessment, payment of stamp duty and registration a URA officer has to look at the
agreement. An agreement of sale of registered land attracts stamp duty under the
Stamps Act. See Rosemary Nalubega versus Jackson Kikayira Court of Appeal,
vide; Civil Appeal No. 40 of 2004.
4.0 Transfer of Title by Joint administrators

4.1 The powers of Joint administrators were discussed in Byaruhanga v Ruvugwaho &
Anor (Civil Appeal No. 9 of 2014) [2020] UGCA 2088 (10 September 2020). The
court emphasized that the administrators being trustees should carry out their
mandate jointly. Section 272 of the Succession Act should be read together with
Section 134 of the Registration of Titles Act. Section doesn’t confer powers on a
single executor or administrator to singularly exercise powers vested in the joint
executors or administrators with respect to conveyancing of land belonging to the
estate of a deceased without express consent or authority of the co-executors or co-
administrators.

4.2 Important to note is the new legal regime under the amendment of succession act.
Section 58 of the Succession (Amendment) Act which substituted Section 270, it
requires among others that before a sale is made, the surviving spouse and all the
lineal descendants (beneficiaries) are expected to consent to the transfer. The need
to protect the interests of the beneficiaries was emphasized in Byaruhanga v
Ruvugwaho & Anor (Civil Appeal No. 9 of 2014) [2020] UGCA 2088 (10
September 2020). See Israel Lwanga versus Lenard Mubiru & Others CACA
No.78/2016

4.3 The Land Registry is requiring for among others the written consent of beneficiaries,
inventories filled in court and verification of the grant before a transfer is registered
from the names of the administrators. This is intended for us to ensure that we can at
least discern that the beneficiaries consented to the transfer of the title. The section
makes any transfer void if it’s not been consented to by the required beneficiaries.

4.4 Another issue worthy looking into is the issuance of powers of attorney by the
administrators and or executors? Can they issue powers of attorney in the course of
their mandate issued to them by court? If so to whom can they issue these powers of
attorney and for what acts? In Civil Suit No. 097/2011, Faridah Nantale Versus AG
& Others, Hon. Justice Keitirima held that powers granted by court to any person
cannot be delegated by that person, without the sanction of the Court

5.0 Powers of the Commissioner Land Registration

5.1 It is quite apparent that a lot of litigation has been generated from the exercise of
powers of the Commissioner Land Registration under Section 91 of the Land Act, as
amended by the Land Amendment Act, 2004. The section provides as follows:

(1) Subject to the Registration of Titles Act, the Commissioner shall, without
referring a matter to a Court or a district land tribunal, have power to take such
steps as are necessary to give effect to this Act, whether by endorsement or
alteration or cancellation of certificates of title, the issue of fresh certificates of
title or otherwise. (Underlining is mine for emphasis)

(2) The Registrar shall, where a certificate of title or Instrument –

a. is issued in error;
b. contains a mis- description of land or boundaries;
c. contains an entry or endorsement made in error;
d. contains an illegal endorsement;
e. is illegally or wrongfully obtained; or
f. is illegally or wrongfully retained,

call for the duplicate certificate of title or instrument for cancellation, or correction
or delivery to proper party.

(2a) The Commissioner Land Registration shall conduct a hearing, giving the
interested party under subsection (2) an opportunity to be heard in accordance
with the rules of natural justice, but subject to that duty shall not be bound to
comply with the rules of evidence applicable in a Court of law.
(2b) Upon making a finding on the matter, the Commissioner shall communicate
his or her decision in writing to the parties, giving the reasons for the decision
made, and may call for the duplicate certificate of title or instrument for
cancellation, or correction or delivery to the proper party”.

(3) if a person holding a certificate of title or instrument referred to a subsection

(2) fails or refuses to produce it to the registrar within a reasonable time, the
registrar shall dispense with the production of it and amend the registry copy and
where necessary issue a certificate of title to the lawful owner.
(4) The registrar may:
(a) correct errors in the register Book or in entries made in it.
(b) correct errors in duplicate certificate or instruments; and
(c) Supply entries omitted under this Act.

(5) The registrar may make amendments consequent upon alterations in names
or boundaries but in the correction of any such error or making of any such
amendment shall not erase or render illegible the original words.

(6) Upon the exercise of the powers conferred on the registrar under subsection
(5), the registrar shall affix the date on which the correction or amendment was
made or entry supplied and shall initial it;

(7) Any error or an entry corrected or supplied under this Section shall have the
same validity and effect as if the error had not been made or entry not omitted.

(8) In exercise of any powers under this Section, the Registrar shall: -
a. give not less than twenty-one days’ notice, of the intention to take
the appropriate action, in the prescribed form to any party likely to
be affected by any decision made under this section;
b. provide an opportunity to be heard to any such party to whom a
notice under paragraph (a) has been given;
c. conduct any such hearing in accordance with the rules of natural
justice but subject to that duty, shall not be bound to comply with
the rules of evidence applicable in a Court of law;
d. give reasons for any decision that he or she may make.

9) The Registrar shall communicate his or her decision in writing to the parties
and the committee.

10) Any party aggrieved by a decision or action of the registrar under this Section
may appeal to the district land tribunal within sixty days after the decision was
communicated to that party.

(11) Where the registrar has cancelled a certificate of title or an entry in the
Register Book, a party in whose favour the cancellation is made shall not transfer
the title until the expiry of the time within which an appeal may be lodged; and
where an appeal is lodged against the cancellation, he or she shall not transfer
the title until the determination of the appeal.

12) The party who lodges an appeal under this Section shall take steps to
ensure that the registrar and other parties are served with the notice of
appeal.

13) Where the person who appealed under the section fails to prosecute the
appeal, the tribunal shall, on application by other party to the appeal, strike
out the appeal

5.2 The law is now settled on whether the Commissioner Land Registration has powers
to cancel a title or not and under what grounds does he do so?

5.3 In the judgment delivered on the 25th day of April 2019 in the case of Hilda Wilson
Namusoke & 3 Ors v Owalla’s Home Investment Trust (E.A) Limited Supreme
Court Civil Appeal No. 15 of 2017, the Supreme Court held that the Commissioner
of Land Registration does not have powers to cancel a certificate of title on the ground
of fraud. It cleared the contention as to under what grounds he can cancel a title.

5.4 The Courts have now applied this case and the most recent is one by Justice
Kazaarwe Olive in Dr. Kiwanuka Kimbugwe & Ors Versus Gyaviira Wani Taban
and others Civil Suit no. 535 of 2018 which also discussed the powers of the
Commissioner Land Registration.

5.4 Whereas the grounds have been settled by the supreme Court, there are a number
of aspects under this section (Section 91 Land act) which are still a subject of
contention and are yet to litigated upon and considered by the Courts.

5.6 Issues like to whom should the grounds be attributed to? The CLR or the complainant.
What happens if the Commissioner Land Registration cites something as an error,
illegality or otherwise and the other party cites it as fraud? The courts haven’t yet
settled such positions.

6.0 Injunctions against the CLR.

6.1 Arising from the powers of the CLR, Some Judicial officers have issued interim orders
and temporary injunctions against the process of rectifying the register. Section 91 of
the Land Act accords the CLR the mandate to go through the process before a
decision is reached. However even before the decision is made the process is halted.
This in our view operates to suspend an act of parliament.

3.2 In Alcohol Industry Association of Uganda Limited Versus A.G and URA Misc
Appn. No. 744 of 2019(Arising from Misc Appn No. 398 of 2019) Justice Sekana
dismissed an application for temporary injunction where the applicants sought to halt
the implementation of the digital tracking system which was in accordance with
stamps Act Regulations 2018. The application was dismissed on grounds that it had
the effect of suspending the powers provided for under the statute.

3.3 Reading in line with this decision, the powers under Section 91(Cited above) are
created by statute (Land Act Cap 227) and injuncting the CLR would mean
suspending the operation of the Land Act which is clearly unlawful.

3.4 The above case was cited with approval in DFCU Bank Limited Versus
Commissioner Land Registration Misc. Application No. 1163 of 2022 arising from
Civil Suit No. 705 of 2022 and Ntumwa Dennis Versus Liao Qingling and
Commissioner Land Registration Misc Appn. No. 1556 of 2022 Arising from Misc
Appn. No. 1492 of 2022 also arising from Civil Suit No. 735 of 2022.

3.5 In furtherance to the above, Section 91(10) & (11) provides for appeal procedure for
someone who is dissatisfied with the decision of the Commissioner Land Registration.
Any one dissatisfied with the decision can appeal to the land tribunal within 60 days
and that no transfer should be effected not until 60 days have lapsed and or the
appeal has been handled. This was stated in Steven Pepe Versus Commissioner
Land Registration and 2 others Misc Appn. No. 393 of 2011 by Lady Justice
Percy Tuhaise.

3.6 As the office of the Commissioner Land Registration, we beseech the Judicial officers
to use the judicial lenses when handling these matters. We have received injunctions
where clearly the matters in contention are titles in Forest reserves, Wetlands, Double
Titling, foreigners are registered on Freehold and Mailo titles among others. All these
are clearly illegalities.

4.0 Appeals against the CLR Decision.

4.1 Section 91(10) of the Land Act gives an aggrieved person the right to appeal against
the decision of the CLR to the Land Tribunal. However, we are all aware that these
tribunals were abolished and powers vested in the Magistrate Courts. This matter
was discussed in Sarah Nakku and others Versus Commissioner Land
Registration and another Civil Appeal No. 64 of 2010 (Appeal against decision
of Commissioner Land Registration) by Justice Percy Tuhaise. Wherein she
stated: -
“……Before delving into the merits of the appeal, it may be stated that this appeal
should have been brought before the District Land Tribunal since the appellant
filed it under section 91(10) of the Land Act. This section provides that any party
aggrieved by the decision or action of the registrar under this section may appeal
to the District Land Tribunal within 60 (sixty) days after the decision was
communicated to the party. The challenge rightly pointed out by the appellants’
Counsel however is that the Land Tribunals are no longer in existence. He cited
the case of Sebirumbi Kisizingo V The Commissioner Land Registration &
Another, Civil Appeal No. 16 of 2010 where Justice Aweri Opio faced the same
situation and held that Practice Direction No. 1 of 2006 gave court’s jurisdiction in
all matters which were being handled by the Land Tribunals. Counsel for the
appellant also submitted that this court has jurisdiction to handle the case under
Article 139 of the Constitution and section 33 of the Judicature Act.

4.2 Article 139 of the Constitution gives the High Court unlimited original jurisdiction in all
matters and such appellate and other jurisdiction as may be conferred on it by the
Constitution or other law. Section 33 of the Judicature Act also grants powers to the
High Court to grant absolutely or on such terms and conditions as it thinks fit, all such
remedies as any of the parties to a cause or matter is entitled to in respect of any
legal or equitable claim properly brought before it, so that as far as possible all matters
in controversy between the parties may be completely and finally determined and all
multiplicities of legal proceedings concerning any of those matters avoided. Practice
Direction No.1 of 2006 provides that following the expiry of contracts of chairpersons
and members of the District Land Tribunals, magistrates’ courts presided over by a
Magistrate Grade 1 and above shall continue to have jurisdiction in land matters in
accordance with section 95(7) of the Land Act. This Practice Direction was made to
enable magistrates’ courts to exercise jurisdiction in land matters until new
chairpersons and members of District Land Tribunals are appointed or otherwise.

4.3 This implies that a magistrate’s court presided over by a Magistrate Grade 1 and
above could have entertained this matter. However, since the High Court has
unlimited original jurisdiction under the Constitution and the Judicature Act, it can also
entertain the same matter.

4.4 I would, in view of the foregoing provisions, agree that this court has the jurisdiction
to handle this matter. In any case the same matter could also have been handled by
this court under section 182 of the Registration of Titles Act. It is on that basis that I
will proceed to entertain this matter.”

4.5 However, in Margaret Nansubuga and Anor Versus Kayondo James Sendi
Revision Cause no. 15 of 2020 Arising from Misc Cause No. 68 of 2020 also arising
from Misc Cause no 53 of 2019 from Chief Magistrate Court of Kasangati at
Kasangati) where the Magistrate Grade One had handled an appeal against the
decision of the Commissioner Land Registration, the court set aside his decision for
being a nullity as the court (Magistrate Grade 1) acted without jurisdiction.
5.0 Generational Claims.
5.1 The Commissioner Land Registration has registered a number of cases arising out of
Closed Registers. i.e., Provisional Certificates PCs and Final Certificates FCs, Mailo
Register Volumes MRVs. Section 32 of the RTA Cap 230 provides for the closing of
the 1908 Register. This was the Register for FCs, PCs. They can no longer be used
for as evidence of ownership. They are purely for historical purposes. However,
several people are claiming under Microfilm reports and bogging courts with such
claims.
5.2 In Evalison Zalwango and others Versus National Forestry Authority and
Another Civil Suit No. 138 of 2016 (17th October 2022) By Justice Odoki Philip,
where the plaintiffs had attempted to claim ownership of Mabira Forest reserve under
the allegations that the same belonged to their great father Basima and Waluka on
the basis of a fraudulently obtained Mailo title, the court clearly appreciated the history
of the titling process under the Mailo tenure. See also Henry W. West: The Mailo
System in Buganda A Preliminary Case study in African Land Tenure
5.3 The history of Mailo Land stems from 1900 agreement where land given out in Miles
to notable chiefs, among others. These were issued with Provisional Certificates PCs,
which after actualization were issued with Final Certificates FCs. Upon closure of the
1908 register they created Mailo Register Volumes MRVs which were also closed to
create the Block and Plot system to create [(White Page, Blue pages (PUPs Parcel
of Unascertained Portions) and Pink pages (official estates)]. See also Henry W.
West: The Mailo System in Buganda A Preliminary Case study in African Land
Tenure
5.4 Currently we are moving towards closing all the PUPs Blue Pages to create White
pages (Ascertained Parcels) to curb the rampant forgeries and stall claims by
claimants.
5.5 These generational claims are largely affected by limitation and locus to bring these
actions. As stated above they always rely on Microfilm reports which make references
to Final Certificates FCs and Provisional Certificates PCs which can’t be used as
evidence of ownership. See Prince Kalemera & Anor (Administrator of the estate
of the Late HRH Sir Daudi Chwa II) v The Kabaka of Buganda & 3 Ors (Civil Suit
No. 535 of 2017) [2020] UGHCLD 16 (28 September 2020)

6.0 Conversion of Mailo title to Freehold title.

6.1 Today a Mailo title can’t be converted into a freehold title. However, in the 1920s, it
could happen. Currently there is also a surge in the number of claims by persons who
challenging how land issued under Mailo tenure could transform into a freehold title.
6.2 In Lukwajju v Kyaggwe Coffee Curing Estates Limited and Another (Civil
Appeal No. 2 of 2016) [2021] UGSC 53 (4 October 2021) Her Lordship
Tibatemwa-Ekirikubinza, JSC explained how a Mailo title could become a
freehold title where among others she stated
“…The Colonial Policy and Practice was to allow negotiation of sale and purchase
between natives (Mailo owners) and non – Africans purchasers, particular in
Buganda, Tooro and Ankole where commercial agriculture was being practiced for
growing rubber, tea and coffee. Upon purchase, the natives would transfer the
Mailo interest to the Governor which transfers were registered as Mailo
documents. The registration of the said document would cause the closure of the
Mailo register for that particular land. Thereafter the Governor would grant the land
in Freehold to the Commercial European or Asian Farmer who purchased that
particular land from the native owner.”
6.3 It need be understood that most of these conversions were in places where there was
commercial agriculture and estates had been created. See also Henry W. West: The
Mailo System in Buganda A preliminary Case study in African Land Tenure.
These actually to say the least stale claims which shouldn’t be entertained to avoid
bogging the court system with

Lastly allow me again thank the organizers for organizing such interactions intended
to enhance both of our knowledge and capacities in the course of execution of duties
and I hope it was fruitful.
I thank you.