Bank of Africa Uganda Limited v Sitakange Herbert and 2 Others (HC Miscellaneous Application No. 119 of 2020) [2021] UGHCLD 56 (8 February 2021)

#### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT KAMPALA LAND DIVISION**

### **M. A No. 119 OF 2020**

# **BANK OF AFRICA UGANDA** 10 **LIMITED------------------------------------------------------------------------- APPLICANT**

**VS**

**1. SITAKANGE HERBERT 2. GRACE NAKAKEMBO** 15 **3. EDITH NAKANDI-----------------------------------------------------RESPONDENTS Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

#### **RULING**

20 The Applicant bank, Bank of Africa Uganda Limited seeks an order that the caveats lodged on land comprised in Kibuga Block 3 Plot 183 land at Makerere, be vacated.

Neither the 2nd or 3rd Respondents opposed the Application.

The 1st Respondent however, opposed it vehemently on grounds that Ms. Irene Nassanga who is registered as proprietor in the suit property had no authority to mortgage it to the bank. Mr. Sitakange Herbert, the 1st Respondent relied on the last will of the late Beatrice Nakijjoba to make his assertion. He explained

30 that he lodged the caveat on the suit property as a beneficiary of the Late Beatrice Nakijjoba's estate to protect his interests.

The Applicant bank insisted that their dealings on the mortgage were with Ms. Irene Nassanga in her individual capacity and not as an administratrix to the Estate of the late Beatrice Nakijjoba. Adding that the mortgage preceded the creation of the estate.

Section 139 of the Registration of Titles Act was specifically formulated to protect the interests of beneficiaries of estates if they could prove that such interests were valid and worthy of protection under the law. The lodging of a caveat was always supposed to be a temporary measure to allow for these 10 interests to be identified and verified by a competent tribunal.

Mr. Sitakange, the 1st Respondent has demonstrated that by the will of the late Beatrice Nakijjoba he has an interest in the suit land. As to whether the interest is superior or more legitimate to that of Ms. Irene Nassanga's, is a question that

15 must be answered by a competent Court. However, the correct procedure to be adopted is a timely suit, instituted by plaint, preferably by the 1st respondent against the Applicant bank and Ms. Irene Nassanga. In my view, the procedure of filing a motion with supporting affidavits is insufficient to establish the respective rights of the parties.

As far as the 2nd and 3rd Respondents are concerned, there is no affidavit in reply to justify why if at all the caveats they lodged on the land should not be vacated. I therefore grant the application to have the caveats of the 2nd and 3rd Respondents vacated.

**In conclusion, I this application is allowed in part and I order as follows;**

- **1. The caveat lodged by the 1st Respondent, Sitakange Herbert shall remain in place.** - **2. The 1st Respondent is given 60 days to institute a suit to protect his** 30 **interests in the property.**

- **3. Failure to institute the said suit in (2) above shall entitle the Applicant bank to file a fresh application to vacate the 1st Respondent's caveat.** - **4. Caveats lodged by the 2nd & 3rd Respondents on the suit land are** 5 **hereby vacated with immediate effect.**

……………………………

**Olive Kazaarwe Mukwaya**

10 **JUDGE**

**8 th February 2021**

**Delivered by email to Counsel for the parties.**