Kalimbi v Registrar of Tittles and Another (HCT-01-CV-LD-CA 20 of 2014) [2023] UGHCLD 168 (31 January 2023)

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

### **IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

### **HCT-01-CV-LD-020 OF 2014**

**KENNETH KALIMBI :::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

## **1. THE REGISTRAR OF TITLES**

### **2. YAHAYA FRIDAY ::::::::::::::::::::::::::::::::::::::::::::::::DEFENDANTS**

#### **BEFORE: HON. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

The Plaintiff brought this suit against the defendants jointly and severally for declaration that the plaintiff is the rightful owner of land comprised in Bunyangabu Block 26 Plot 4 at Burongo in present day Rubona Town Council in Bunyangabu district (suit land), an order that the caveat loged by the 2nd defendant on the said land be vacated and an order directing the 1st defendant to register the plaintiff on the suit land as proprietor, a permanent injunction and costs of the suit.

### **Background**

The suit land is now registered in the names of Lydia Turigye, as the administrator of the estate of the late Mauda Tumwesigye. Lydia Turigye is the plaintiff's mother and an aunt to the 2nd Defendant. The late Mauda Tumwesigye was the plaintiff's stepmother and aunt. She also the 2nd defendant's aunt. The case for the plaintiff is that he acquired the suit land as a gift inter vivos from the late Mauda Tumwesigye and the same was confirmed by Lydia Turigye who signed transfer forms in the plaintiff's favour after the former obtaining letters of administration to the estate of the late Mauda Tumwesigye. The plaintiff could not register himself as

proprietor of the land because the 2nd defendant had lodged a caveat on the same.

The 1st defendant filed a written statement of defence denying all the allegations in the plaint.

The case for the 2nd defendant is that when the late Mauda Tumwesigye died intestate on 27th July 2004, she was survived by neither a widower nor a child. He claims that the family of the deceased sat in a meeting on 1st August 2004 and distributed the deceased's properties including cows, a shop, and the suit land among others. He states that the suit land was allocated to him in the said meeting and that his grandfather (father to the deceased) introduced him to the local authorities as the owner of the suit land although he did not receive the certificate of title to the same.

The 2nd Defendant further claims that he later discovered that Lydia Turigye had secretly obtained letters of administration to the estate of the late Mauda Tumwesigye and registered herself as proprietor on the suit land and signed transfer forms in favour of the plaintiff. The 2nd defendant lodged a caveat in August 2008 to protect his interest having demanded for the certificate of title in vain.

### **Representation and hearing**

The plaintiff was initially represented by Mr. Nyamutale Peter (RIP) and later by Mr. Mugisa Rwakatooke of M/S Ngamije Law Consultants & Advocates. Counsel Robert Luleti represented that 2nd defendant. The Department of Land Registration filed a defence for the 1st defendant but took no further part in the proceedings.

The plaintiff led evidence of three witnesses. Himself as PW1, Lydia Turigye as PW2 and Gertrude Kairumba as PW3. PW1 & PW2 offered oral testimony while PW3 was cross examined on her witness statement. The 2nd defendant led evidence of only himself as DW1. Both parties agreed that there was no need to visit the locus in quo and the same direction was adopted by court.

At scheduling, the following issues were raised for determination by court:-

# *1. Whether the caveat lodged by the 2nd defendant on the suit land should be vacated*

# *2. Whether the plaintiff should be registered as proprietor of the suit land.*

In his submissions, counsel for the 2nd defendant proposed an amendment to the issues to include whether the plaintiff has a cause of action against the defendants. After careful perusal of the pleadings, the evidence and submissions, I find that the controversy between the parties can be sufficiently settled on the first two issues framed above and therefore no need to add issues. I also choose to resolve them together.

# **Burden and Standard of proof**

The burden of proof is upon the Plaintiff to prove his case on a balance of probabilities. **Section 101, 102 and 103 of the Evidence Act** provide that he who asserts a fact must prove it. Whoever desires any court to give the judgment as to any legal rights or liability dependent on the existence of the fact which he or she asserts must prove that fact exists.

The court has to be satisfied that the Plaintiff has furnished evidence whose level of probity is such that a reasonable man might hold that, the more probable conclusion is that for which the Plaintiff contends, since the standards of proof is on the balance of probabilities /preponderance

# of evidence (see *Lancaster Vs Blackwell Colliery Co. Ltd 1982 WC Rep 345* and *Sebuliba Vs Cooperative Bank Ltd (1982) HCB130*)

## **Court's determination**

The suit now seeks to determine whether the caveat lodged by the 2nd defendant on the suit land should be vacated and whether the plaintiff should be registered on the suit land as proprietor.

The plaintiff **(PW1**) testified that he grew up when the late Mauda was telling him that the suit land belongs to him. The late Mauda died before giving him the land. His mother obtained letters of administration and then signed transfer forms for the suit land in the plaintiff's favour, (Exh.**PE1**). When he went to the lands office to register his name as the proprietor, he found that the 2nd defendant had lodged a caveat and the registration was not therefore effected. During cross examination, he stated that he had lived on the suit land from the time he was 3 years old.

**PW2** is the plaintiff's mother and the administrator of the estate of the late Mauda Tumwesigye. She stated that the late Mauda gave her the certificate of title to the suit land (Exh.**PE2**) because the plaintiff was very young. She then obtained letters of administration to the late Mauda's estate and executed transfer forms in favour of the plaintiff. She notes that she did not attend the family meeting that purportedly allocated the suit land to the 2nd defendant. She also notes that the late Mauda had looked after the plaintiff from the time he was 3 years old as his stepmother. The late Mauda did not have biological children.

During cross examination, **PW2** stated that while she applied for the letters of administration to the estate of the late Mauda, the signature appearing on the petition produced by the 2nd defendant was not hers. She also confirms that she did not include the plaintiff among the beneficiaries of the late Mauda's estate because he was still young. She also did not include the suit land in the petition. Also that other items like the cows were not included but had been distributed prior to her obtaining of the letters.

**PW3** stated that the suit land had always been for the benefit of the plaintiff and that the sole purpose of appointing Lydia Turigye as the administrator of the estate of the late Mauda was to care take the suit land for the benefit of the plaintiff.

The 2nd defendant, **DW1** stated in his witness statement that when the late Mauda Tumwesigye died intestate on 27th July 2004, her family sat in a meeting on 1st August 2004 and distributed the deceased's properties including cows, a shop, and the suit land among others. He states that the suit land was allocated to him in the said meeting. He referred to a copy of the minutes of the said meeting **Dexh1.** He also noted that his grandfather (father to the deceased) introduced him to the local authorities as the owner of the suit land (**Dexh2)** although he did not receive the certificate of title to the same. He further claims that he later discovered that Lydia Turigye had secretly obtained letters of administration to the estate of the late Mauda Tumwesigye and registered herself as proprietor on the suit land and signed transfer forms in favour of the plaintiff. In the meantime, he had lodged a caveat in August 2008 (**Dexh3)** to protect his interest having demanded for the certificate of title in vain. He notes that the suit land belongs to him and not the plaintiff.

In his submissions, counsel for the plaintiff argues that a person that lodges a caveat should not be allowed to sit for unreasonably long without showing cause why his caveat should not be removed. He referred to the

case of *Ssegirinya Gerald Vs Mutebi Innocent HCMA No. 081 of 2016* where it was stated that a caveat gives the caveator only temporary relief and it is not intended that the caveator should sit down for eternity without taking positive steps to determine his rights and the rights of those affected by the caveat.

Counsel for the plaintiff further argued that the unchallenged evidence of the plaintiff points to the fact that the suit land was given to the plaintiff by the late Mauda during her lifetime and that the purported distribution of the estate of the late Mauda that took place before the grant of letters of Administration can only be dubbed as illegal. He referred to the Court of Appeal case of *John Kihika & Kaidoli William Vs Absolom Tinkamanyire CACA No. 086 of 2014* to argue that the property of a deceased person cannot be dealt with or otherwise transferred without a grant of letters of administration.

It is also the plaintiff's argument that the letters of administration granted to Lydia Turigye have never been challenged and it was proper for her to transfer the suit land to the plaintiff.

The submissions of the 2nd defendant are on majorly two fronts. First, he argues that the plaintiff's suit does not disclose a cause of action against the defendants. Mr. Luleti argues that the plaintiff was not a beneficiary to the estate of the late Mauda. Had he been a beneficiary, he would have been included in the petition for letters of administration as such. He also argues that the plaintiff cannot rely on only transfer forms to claim an interest in the suit land, that is to say, the property is first acquired before the transfer form is filled and signed. He notes that the plaintiff has not shown the beneficial interest in the suit property.

Secondly, counsel for the 2nd defendant argues that had the late Mauda intended to give the suit land to the plaintiff, she would have executed a document in his favour to that effect, otherwise, the absence of the same can only point to the fact that the plaintiff is no more than a land grabber. Counsel relied on the case of *Sir John Bagire Vs Matovu Ausi CACA No. 07 of 1996* to state that land is not like vegetables that are bought from unknown sellers. Mr. Luleti noted that it defeats the essence of justice for Lydia Turigye to wield authority selectively and selfishly in favour of her biological son, the plaintiff.

I have carefully studied the parties' pleadings, evidence as well as the submissions of their respective counsel. While I am inclined to agree with the submission of counsel for the 2nd defendant that our jurisprudence has not yet provided for verbal gifts *inter vivos* for land, I don't agree with the assertion that the plaintiff does not have a cause of action. **Section 204 of the Succession Act** points to the direction that people who are in the same class of beneficiaries are equally entitled to administer the estate as well as an equal benefit to the same. It has earlier been noted that both the plaintiff and the 2nd defendant were nephews to the late Mauda. Why then would the 2nd defendant be entitled and the plaintiff not? It has also been stated that the plaintiff was not only a nephew to the late Mauda but also a stepson. It is already settled law that a beneficiary to an estate of a deceased does not necessarily need letters of administration in order to commence a suit to protect his or her interest. See *Isreal Kabwa Vs Martin Banoba SCCA. No. 52 of 1995.*

PW2, the administrator of the estate of the late Mauda testified that the suit land was given to the Plaintiff during the life time of the late Mauda and that the plaintiff grew up on the suit land with the said Mauda as her stepson and nephew. The 2nd defendant disputes the Plaintiff's ownership of the property by claiming that the same was allocated to him (the 2nd defendant) by the family meeting after the passing of the late Mauda. I need to note by the time of the purported meeting that allocated the suit land to the 2nd defendant, there was no person with letters of administration to the said estate. In fact, the said meeting was held on 1st August, four days after the passing of the late Mauda.

If the plaintiff's averments are something to go by, it would appear that the late Mauda passed on before her alleged wish to transfer the suit land to the plaintiff could be executed since there was no document by way of gift of land *inter vivos* exhibited in favour of the plaintiff. And since the late Mauda died intestate, there was no valid testamentary disposition of her property in favour of the plaintiff nor the 2nd defendant. It is not in dispute that the suit land formerly belonged to the late Mauda Tumwesigye who was the plaintiff's stepmother and aunt but also aunt to the 2nd defendant.

I will rely on the case of *Joy Mukobe Vs Wambuwu HCCA No. 055 of 2005* where court laid down the salient features of a gift *inter vivos*.

- a. A donor must intend to give a gift; - b. the donor must deliver the property; and - c. The donee must accept the gift.

A gift made between living persons (*inter vivos*) is a transfer of property from one person to another gratuitously while the donor is alive and not in the expectation of death. In this, property is voluntarily transferred from the true owner in possession to another person with the full intention that the property shall not return to the donor. It has been said that there must be an intention on the part of the recipient to retain the property entirely as his own without restoring it to the giver. But it is sufficient for the donee to take the property, keeps it and knowing he has done so. (See **Halsbury's Laws of England, Vol. 52, 5th Edition at Page 1**.)

Making a gift *inter vivos* may take three basic forms;

- a. By executing a deed or other instrument in writing - b. By deliver of the subject to the gift (more applicable to moveable property) - c. By declaration of a trust, which in essence is the equitable equivalent of a gift.

It appears to me that it is generally understood that an estate in land must be granted by deed or other written instrument which makes the parties' intentions clear. If the gift of land relates to registered land, the gift must be followed by a registered transfer. If the transfer does not take place after reasonable time, the gift is not effectual, it reverts to the donor who would then hold it on trust for the donee. (See **Halsbury's Laws of England, Vol. 52, 5th Edition at Page 24).** Equitable interests in land, whether registered or unregistered may be dealt with by way of gift. But such a disposition must be in writing signed by the donor or by his lawfully appointed agent.

In determining whether the deceased created a gift *inter vivos* in respect of the disputed land, court has to ascertain the intention of the donor, and then examine whether the formal requirements of the method of disposition which he attempted to make have been satisfied. Mellows in *The Law of Succession 5th Edition, Butterworth 1977* pages 9 to 10 stated as follows regarding gifts *inter vivos:-*

*"Various formalities are necessary for gifts inter vivos. Thus a gift of land must be by deed; a gift of land where the title is registered at the* *Land Registry must be effected by an instrument of transfer which is registered;"*

In my opinion, the law does not recognize a verbal gift of land. Regarding registered land, a gift *inter vivos* of the same is completed when the donor signs the transfer forms in favour of the donee. As such, it is not proper to say that the plaintiff acquired the suit land from the late Mauda by way of gift. In addition, I note that the meeting of 1st August 2004 that also purported to allocate the suit land to the 2nd defendant also acted in vain in the absence of anyone with letters of administration to the estate of the owner of the suit land.

Consequent to the above, upon the death of the late Mauda, the suit land automatically passed on to her estate and was available for management and distribution by PW2 in accordance with the laws governing intestate estates. I now consider whether the purported transfer by PW2 to the plaintiff was effectual.

**Section 25 of the Succession Act** is instrumental in helping the court reach a conclusion. It provides that: "All property in an intestate estate devolves upon the personal representative of the deceased upon trust for those persons entitled to the property under this Act." (Underlining for emphasis). The final decision regarding devolution of an intestate's property like the suit land would be determined by the personal representative, who in this case is Lydia Turigye, PW2 who is also currently the registered proprietor thereof. In addition **Section 92 of the Registration of Titles Act** provides that the proprietor of land or of a lease or mortgage or of any estate, right or interest therein respectively may transfer the same by a transfer in one of the forms in the Seventh Schedule to this Act.

I find that the execution of transfer forms for the suit land by Lydia Turigye, the administrator of the estate of the late Mauda and registered proprietor of the suit land indicated an intention to transfer the same into the plaintiff's name. If the 2nd defendant was aggrieved by this action, he could have cured it by filing a suit against Lydia Turigye to establish his right in the land. The assertions that Lydia Turigye was selfish in allocating the suit land to the plaintiff who is her biological son could also have been cured by challenging her authority to do so. Her letters of administration have never been challenged and her actions of executing transfer forms in favour of the plaintiff would stand.

The second limb of these issues is whether the caveat lodged by the 2nd defendant should be removed. **Section 139 of the RTA** provides for who may lodge caveats as; '*any beneficiary or other person claiming any interest in land under the Act…'* The plaintiff contends that the suit land belongs to him and that there is no reason why the 2nd defendant lodged the said caveat. The 2nd defendant insists that the suit land was allocated to him and he therefore lodged the caveat to protect his interest after demanding for the certificate of title in vain. I have already found that the 2nd defendant did not acquire interest in the suit land.

**Section 140(1) of the RTA** deals with the removal of caveats lodged under **Section 139 of the RTA**. The proprietor against whose title to deal with the estate or interest the caveat has been lodged or any other person claiming under the proprietor may summon the caveator to attend before the court to show cause why the caveat should not be removed; and the court may, upon proof that the caveator has been summoned, make such order in the premises as it seems fit.

The law requires that once a caveator files a caveat, the caveator has to show cause why the caveat should not be removed after the statutory period lapses. In the present case, the caveat (**Dexh3**) was lodged in on 18th August 2008. On 19th November 2010, Lydia Turigye was registered as proprietor as administrator of the estate of the late Mauda Tumwesigye. The 2nd defendant has never taken any step to establish his rights protected by the caveat with finality.

It has been stated by Spry. J. A. at page 388 in the case of *Bayes Vs Gathure [1966] EA 385* that a caveat is intended to give the caveator temporary relief and time to establish his right and interest in the land caveated with finality. The 2nd defendant has never taken steps to establish the caveated interest with finality. It is now more than fourteen years since the caveat was lodged on the suit land and the caveator has not shown cause why it should not be removed. The 2nd defendant lodged his caveat and sat back for an unreasonably long. This caveat ought to be removed.

Pursuant my the resolution of the issues raised in this suit, this suit succeeds and I give the following orders;

- a. The 1st defendant is directed to remove the caveat lodged by the 2nd defendant on the land comprised in Bunyangabu Block 26 Plot 4 at Burongo in present day Rubona Town Council in Bunyangabu district - b. The 1st defendant is directed to register the plaintiff as the proprietor of the suit land in a. above upon payment of the statutory fees - c. A permanent injunction is issued to restrain the 2nd defendant from dealing with the suit land whatsoever

Regarding the issue of costs, I am alive to **section 27(2) of the Civil Procedure Act** which is to the effect that costs follow the event, unless for

some reasons court directs otherwise. Considering the circumstances of this particular case, I would order that each party bears its own costs.

It is so ordered

Dated at Fort Portal this 31st day of January 2023. .

**Vincent Emmy Mugabo Judge**

The Assistant Registrar will deliver the judgment to the parties

## **Vincent Emmy Mugabo**

**Judge**

31st January 2023.