Supreme Court of Uganda clarifies on the powers of the Commissioner of Land Registration
This blog was written by Deus Mugabe, Shonubi, Musoke & Co. Advocates (Uganda), alliance firm of Norton Rose Fulbright.
In a judgment delivered on 25 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 of Uganda held that the commissioner of land registration does not have powers to cancel a certificate of title on the ground of fraud. Prior to this judgement, the powers of the Commissioner of Land Registration with specific regard to cancelling certificates of title due to fraud were unclear. The decision of the Supreme Court is very welcome as it safeguards a purchaser of land who has not engaged in fraudulent conduct from cancellation of his or her Certificate of Title without the benefit of a Court hearing.
Under the Registration of Titles Act Cap 205 (1964 edition) the Registrar of Titles (now Commissioner of Land Registration) had powers to cancel a certificate of title on the ground that it was acquired through fraud. This position was confirmed in the case of Edward Rurangaranga v Mbarara Municipal Council Supreme Court Civil Appeal No. 10 of 1996.
However, under the 1998 Land Act as amended by the 2004 Land (Amendment) Act, these powers to cancel a certificate of title acquired through fraud were removed from the Registrar. Courts did not uniformly apply the new position of law. While in some cases such as Sulait Ssemakula v Commisioner Land Registration & Ors and C.R Patel v The Commissioner Land Registration & ors, the courts held that the Registrar of Titles did not have such powers, others insisted on interpreting the provision of the law broadly to include fraud. This application of the law has caused some confusion and debate until the recent Supreme Court’s decision in Hilda Wilson Namusoke & 3 Ors v Owalla’s Home Investment Trust (E.A) Limited.
The Supreme Court unanimously held that the Commissioner of Land Registration does not have powers to cancel a certificate of title on the ground of fraud. The court reasoned:
- That upon amendment of the Land Act, all the other grounds which empowered the Registrar of Titles to cancel a certificate of title were imported into the land Act save for fraud. The Supreme Court held that the absence of fraud in the new provision was deliberate.
- That an allegation of fraud is so serious in nature and is required to be specifically pleaded and strictly proved before a court of law.
- That whereas fraud is not authorised by the law and is therefore an illegality, fraud is a very special type of illegality.
- Finally, the Supreme Court decided that the Court of Appeal erred in relying on its decision in the case of Edward Rurangaranga, as this authority was based on statutory provision that was no longer current.
The Supreme Court decision in Hilda Wilson Namusoke & 3 Ors v Owalla’s Home Investment trust (E.A) Limited is a welcome judgment. The position is now clear that a Registrar of Titles cannot, of their own volition, cancel a certificate of title acquired through fraud. For the certificate of title to be cancelled on the ground of fraud, one must follow due court process.
This development brings an end to the uncertainty, instability and unpredictability that have surrounded the area of cancellation of certificates of title. This is good news for any one purchasing land. If there is an allegation of fraud, or fraud is perpetuated by the Lands registry, a remedy should be sought in court and not the same office where the fraud took place. This allows all affected persons an opportunity to be heard before a competent court and therefore provides more security for persons thinking of purchasing land.