Buteera and Others v Sendikaddiwa (HCT-17-LD-MC-0008-2024) [2024] UGHC 1248 (28 August 2024)

## **THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT LUWERO**

**HCT-17-LD-MC-0008-2024**

## **1. HON. JUSTICE RICHARD BUTEERA**

- **2. MURORENKWERE VIOLET KATIMBO** - **3. KAMALI PASCAL** - **4. KALIHANYA KALOUDIAN** - **5. RUZINDAZI FIDEL (Administrators of the estate of the Late Claudian Katimbo) ………….………………APPLICANTS**

## **VERSUS**

**STEVEN SENDIKADDIWA………….………….………RESPONDENT**

# **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

### **RULING**

- 1. On 22.2.2024, the five applicants Hon. Justice Richard Buteera; Murorenkwere Violet Katimbo; Kamali Pascal; Kalihanya Kaloudian; Ruzindazi Fidel (Admnistartors of the estate of late Claudian Katimbo) moved the court under Section 140 of the Registration of Titles Act Cap 240, Section 33 of the Judicature Act Cap 16, Section 98 of the Civil Procedure Act Cap 282 and O.52 rr.1, 2 &3 of the Civil Procedure Rules S. I 71-1 for the following orders: - a) The caveat lodged by the Respondent on land comprised in **BULEMEZI BLOCK 876 PLOT 2 LAND AT GAYAZA** be vacated by the Court.

- b) An order be made by the Court directing the Commissioner Land Registration to vacate the caveat lodged by the Respondent on the land comprised in **BULEMEZI BLOCK 876 PLOT 2 LAND AT GAYAZA.** - c) Costs be provided for. - 2. The application is supported by the affidavit in support of Kamali Pascal and affidavit in rejoinder. The respondent Sendikaddiwa filed an affidavit in reply on 19.3.2024. - 3. On 28.3.2024, Obbo Francis Henry and David Oriokot, counsel for the applicants appeared before the Deputy Registrar, Her Worship Mugala Jane. Counsel for the respondent and both the parties were absent. Upon application by counsel for the plaintiffs, the Deputy Registrar gave a schedule to file written submissions. The applicants were directed to file by 30.4.2024, the respondents to file theirs by 31.5.2024 and in case of any rejoinder, the applicants were to file by 7.6.2024. The matter was then adjourned for Ruling before me. Both parties complied with the schedule and I have carefully considered all submissions on record.

### Background facts

4. It is not disputed that on 29.7.2019, the applicants were registered as administrators of the estate of the late Claudian Katimbo whose land is comprised in Bulemezi Block 876 Plot 2 at Gayaza measuring 28.7 hectares. The said applicants were registered under instrument No. LUW-00000435. Prior to registration, they obtained letters of administration from the High Court under HCT-00-FD-AC-370 -2015 on 1.7.2015. Annexture A to the affidavit in support of Kamali Pascal refers.

- 5. It is also a fact that Sendikaddiwa lodged a caveat on Bulemezi Block 876 Plot 2 land at Gayaza on 28.7.2021. Annexture D to the affidavit in support of Kamali Pascal refers. - 6. The certificate of title for Bulemezi Block 876 Plot 2 land at Gayaza shows that Latimer M Mpagi was registered on 31.10.1925 by instrument 1888 as the first proprietor followed by a one Sebwato Erieza on 11.1.1996 under instrument BUK 58541, followed by a one Jonathan Kakooza on 2.2.2005 under instrument BUK 59380, followed by Claudia Katimbo on 24.5.2005 under instrument BUK 59551 and lastly the applicants as administrators of the estate of the late Claudia Katimbo on 29.7.2019.

### Preliminary issues

7. Counsel for the respondent raised two preliminary objections to the application.

## *a) The application is an abuse of the court process*

8. Counsel for the respondent submitted that the application is improperly before this court since the matter involves fraud which can only be determined by an ordinary suit. He further argued that the applicants seek to vacate a beneficiary's caveat under the provisions of Section 140 of the Registration of Titles Act without specifying the specific subsection thereby making the application vague.

- 9. In response, counsel for the applicants submitted that Section 140 is the enabling law for removal of a caveat and therefore the preliminary objection is misconceived. - 10.**Section 140 now Section 124(1) of Cap. 240** in the Revised Red volumes empowers the Registrar of Titles to remove a caveat after notifying the caveator. The same section enables any proprietor or anyone claiming under him or her to summon the caveator to show cause why the caveat should not be removed. This application is therefore properly before me. - *b) The application is intended to circumvent the fraudulent dealings in the suit land.* - 11. Counsel for the respondent submitted that he intended to institute a civil suit challenging the numerous fraudulent dealings in the land since peaceful negotiations had failed. Furthermore, that he had indeed filed HCT-17-LD-CS-0071-2024 which plaint he did not attach but which I accessed on ECCMIS as having been filed on 29.5.2024 after this application had been filed on 22.2.2024. - 12. Counsel for the applicant submitted that the respondent lodged his caveat in 2021, three years ago and that a caveat is not meant to subsist in perpetuity.

- 13. Having considered submissions of both counsel, I find that it was up to the respondent who alleges fraud to file an action and not the applicants and for this reason, this preliminary objection is overruled. - 14. The respondent attempted to persuade the court that he took steps to resolve the dispute amicably before the Land Unit of State House and that negotiations were still in progress. Contrary to the respondent's claim, the State House Land Protection Unit made its findings in a report dated 22.2.2024 and marked annexture A to the affidavit in rejoinder filed by Kamali on 28.3.2024. It therefore follows that efforts at negotiations failed albeit the applicants deny being party to the said negotiations.

#### Resolution of the case.

- 15.**Section 123(1) of the Registration of Titles Act Cap. 240** permits any beneficiary or other person claiming an estate or interest in land to lodge a caveat with the Registrar of Titles forbidding the registration of any person as transferee or proprietor of and of any instrument affecting that estate or interest without notice to the caveator. It therefore follows that the respondent, as a beneficiary, must have an estate in the land for him to lodge a caveat. - 16. It was the respondent's case that his late father Latima Mulindwa Mpagi was the first registered proprietor on the suit land having been registered in 1925 and upon his demise in 1975, the respondent and his sister Babra Kyewalabye were registered as proprietors in their capacity as administrators of the estate of late Latima Mulindwa Mpagi.

The respondent is silent in his affidavit on when he got registered but he deposed in para. 7 that after they were registered, together with his sister, they travelled abroad and on their return, he discovered that on the 11.1.1996, a one Sebwato Eriaza had fraudulently transferred the suit land, Bulemezi Block 897 Plot 2 land at Gayaza, into his names using the same instrument the respondent and his sister used to be entered as proprietors.

- 17. An examination of the certificate of title shows that the respondent and his sister were registered on 11.1.1996, the same day the land was transferred to Sebwato under the same instrument BUK. 5251. - 18. Worthy of note is that although the respondent had obtained letters of administration in 1976 under administration Cause No. 26 of 1976, he got registered as proprietor on 11.1.1996, nearly twenty years later, moreover the same day that the land was transferred to Sebwato. - 19. Furthermore, the respondent does not disclose when he returned to Uganda. This omission to disclose when he returned to Uganda is to his own detriment because he had a duty to demonstrate that he acted timeously to protect the land. Moreover, the respondent in paragraph 6, deposed that he got registered on the title after he obtained letters of administration in Administration Cause No. 026 of 1976. This grant was not attached to the affidavit in reply so I have no way of knowing when it was issued. What is certain is that the respondent and his sister were registered on 11.1.1996, going by the entry on the title, possibly twenty years after the grant was issued. 20. Having been registered in 1996 and then somehow the title was transferred the same day, the respondent did nothing to protect the land from subsequent dealings after he was deprived of it. It was only on 28.7.2021 that he lodged a caveat under instrument No. LUW. 0001376. This is sixteen (16) years after the transfer to the fourth transferee Kakooza and fifth transferee Claudio Katimbo who was also registered on 24.5.2005. In total, the respondent took twenty five years (25) to take legal steps to protect the land which had been transferred from his own name and that of his sister in 1996.

#### The applicants' case

- 21. Kamali Pascal, the third applicant, who obtained the necessary authority from the other administrators to swear the affidavit on their behalf, deposed that he is one of the administrators of the estate of the late Claudian Katimbo who was the registered proprietor, in full occupation and utilization of land comprised in Bulemezi Block 876 Plot 2 at Gayaza since 2005 when he purchased the said land and got registered on the title by an instrument of transfer. - 22. He further deposed that the applicants are currently the registered proprietors by virtue of their position as administrators of the estate of the late Claudian Katimbo and in total possession of the said land having been registered on 29.7.2019 vide instrument number LUW-00000435. In other words, the applicants and their predecessor were

in quiet physical and legal possession since 2005 until 2021 when the respondent encumbered the land with a caveat.

#### Dilatory conduct and doctrine of laches

- 23. For Sendikaddiwa to lodge a caveat in 2021, nearly 25 years after land comprised in Bulemezi Block 876 Plot 2 at Gayaza was allegedly fraudulently transferred by a one Sebwato Elieza on 11.1.1996, coupled with his failure to bring an action timeously since 1996 and since 2021, when lodged the caveat, amounts to dilatory conduct. - 24. The respondent's conduct falls under the equitable doctrine of laches which **Osborn's Law dictionary ninth edition** defines as negligence or unreasonable delay in asserting a right or enforcing a right. The maxim '*delay defeats equities or equity aids the vigilant not the indolent'* aptly describes the respondent's conduct. - 25. The respondent's delay in bringing an action timeously to protect his alleged interest means he lost that interest when the applicants' predecessor acquired legal title in 2005, twenty five years after he was allegedly deprived of it unlawfully. The predecessor was not party to the dealings in the land prior to the acquisition having acquired the land from the fourth transferee Kakooza and therefore his title to the land is clean. As found earlier, equity aids the vigilant and not the indolent. The respondent's claims of living abroad are not legitimate reasons for his dilatory conduct given the ease of travel and communication in this modern digital era. In any case, the respondent did not adduce credible

evidence that he was abroad nor did he disclose when he left for abroad and when he returned.

Stay of suit under Section 6 of the CPA

26. As for his defense that he has filed LD-CS-0071 -2021 against the applicants and the Commissioner Land Registration which was filed on 29.5.2024 after the current application had been filed on 22.2.2024, the said suit against the applicants is caught by section 6 of the Civil Procedure Act Cap. 282 which bars the court from entertaining a dispute where the same parties and facts are in issue in a previously instituted suit. I reproduce Section 6 below:

> *'No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly or substantially in a previously instituted suit or proceeding between the same parties…where the suit is pending in the same or any other court having jurisdiction in Uganda to grant the relief claimed.'*

27. Evidently, Civil Suit No. 0071 of 2024 is a latter suit . Furthermore, I have examined the plaint and it pleads the same facts as are pleaded in the affidavit in reply while the four respondents are cited as defendants 1,2,3,4. In effect, the later suit is caught by Section 6 of the CPA which means the instant application No. 008 of 2024 will dispose of the dispute between the respondent and the four applicants.

28. Counsel cited **Rutungu Properties Limited v Carrington & Another (Civil Appeal No. 61 of 2010) [2019] UGCA 2026 (21 November 2019)** in support of his submission that the respondent is guilty of dilatory conduct. In that case, the Court of Appeal held that:

> *"…a caveat is similar to an interlocutory injunction as it only gives temporary protection of interest… a caveatee must prove that he holds an interest and an unfettered right to deal with the suit land as he may please.*

29. Having found that the respondent's interest if any was defeated by his indolence, the fact that he was cagy on when he left for abroad and when he returned; the fact that there is a mismatch between the names of his late father on the title and how the respondent refers to him; and having failed to prove his interest with certainty, I find that the respondent has failed to demonstrate that the caveat he lodged on 28.7.2021 on the certificate of title of Bulemezi Block 876 Plot 2 at Gayaza should remain. In the premises, the application to remove the caveat is allowed.

### Remedies

30. The caveat lodged by Sendikaddiwa on 28.7.2021 on land comprised in Bulemezi Block 876 Plot 2 at Gayaza shall be removed as soon as the Registrar of Titles is served with this order.

### **Orders**

- a) The Commissioner for Land Registration shall remove the caveat lodged by Sendikaddiwa on 28.7.2021 on land comprised in Bulemezi Block 876 Plot 2 at Gayaza on receipt of this order. - b) The Commissioner Land Registration shall not register any other caveat by the respondent or his agents or anyone claiming under him henceforth. - c) Each party shall bear their own costs.

# **DATED AT LUWERO THIS 18TH DAY OF SEPTEMBER 2024**

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# **LADY JUSTICE HENRIETTA WOLAYO**

### **Legal representation**

R. Nsubuga and Co. Advocates for the applicants.

M/s Semengo & Co. Advocates for the first respondent.