Supreme Court clarifies on the powers of the Commissioner of Land Registration

"Land Law"

In a judgment delivered on the 25^th 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. 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.

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; C.R Patel v The Commissioner Land Registration & ors, among others 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 caused confusion and debate until the Supreme Court’s decision in Hilda Wilson Namusoke & 3 Ors v Owalla’s Home Investment Trust (E.A) Limited,

The Supreme Court in an appeal arising from Hilda Wilson Namusoke & 3 Ors v Owalla’s Home Investment Trust (E.A) Limited, 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;

1.     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.

2.   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.

3.   That whereas fraud is not authorised by the law and is therefore an illegality, fraud is a very special type of illegality.

4.   Finally the Supreme Court decided that the Court of Appeal erred in relying on its decision in the case of Edward Rurangaranga which was an authority that expounded a statutory provision that was no longer law at the material time.

Conclusion

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 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 position brings an end to uncertainty, instability and unpredictability that has surrounded the area of cancellation of certificates of title.