Katahore and Another v Walugembe and Another (Mrsc. cAUsE No. 0022 0F 2024) [2024] UGHC 1223 (4 July 2024)

Full Case Text

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

# MISC. CAUSE NO. 0022 OF 2024

## 1. ABEL KATAHORE

2. BAGANCWERE NATHAN BARUNGI ::::::::::::::::::: APPLICANTS

3. KIHIKA JOYCE SHARON (ADMINITRATRIX OF THE ESTATE OF THE LATE JOHN KAMURARI)

#### **VERSUS**

1. WALUGEMBE SARAH ZALWANGO

2. FRED KAYONDO DANIEL::::::::::::::::::::::::::::::::::::

# BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K

## **RULING**

# 1. The Applicants moved court by way of a notice of motion under **Section** 140, 142 & 188 of the Registration of Titles Act Cap.230 (RTA), Section 98 Civil Procedure Act Cap. 71, Order 52 rule 1, 2, & 3 of **the Civil Procedure Rules SI -71-1** for orders that;

- a. The caveat lodged by the Respondents against land comprised in Kyadondo Block 255 Plot 327, 326, 328, 329, 331, 332, 333, 1000, 1001 land at Munyonyo *(herein after referred to as, 'the Suit land')* be vacated/removed. - b. The costs be provided for. - 2. The grounds of the application are contained in the notice of motion and are supported by the affidavits deposed to by Bagancwera Nathan Barungi, Abel Katahoire and Kihika Joyce Sharon. - 3. The record shows that the $3rd$ Applicant is an Administratrix of the estate of the late John Kamurari who was the registered as a proprietor of the land comprised in Block 255 Plot 114 at Munyonyo in 1979. The suit land

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emanates from afore described land. It also shows that the 1st and znd Applicants purchased land from the late John Kamurali and became registered as proprietors of land in Block 255 Plots 328 and Plot 331 respectively.

4. The Applicants averred that they purchased land from the late John Kamurari and have been in occupation and utilization of it without any inteference or challenge for more than 20 years. That in September 2023, they conducted a search and established that the suit land had been caveated by the Respondents since 2015. That there was no justification for lodging or maintaining the said caveat on the register. That the Respondents are unknown to them and have never had any dealings with them. That the caveats have caused them great Inconveniences and economic loss for which they hold the Respondents liable.

- 5. The Applicants further supported the application with copies of certificates of title for land comprised in Kyadondo Block 255 Plot 328, Block 255 Plot 114, an application for issuance of a caveat lapse dated 2010912023, a copy of an affidavit in support of a caveat dated 2510612015, and a copy of letters of administration vide AC 94t12014(Estate of the late John Kamura/i). - 6. The application was opposed by the 1't Respondent with written authority from the 2nd Respondent. It is the Respondents'evidence that suit land belonged to the late Walugembe Francis Mary Joseph who died on 2310911972. That after obtaining a grant of letters of administration in 2015, they realized that thelr father's land comprised in Block 255 Plot 114 had been fraudulently subdivided into plots constituting the suit land and registered in the names of John Kamulari and others, without their knowledge. That by the time the suit land was transferred into the names of The City Pharmacy Dispensing Chemists Ltd, their father had already passed on. That the late Walugembe Francis never transferred the suit land during his life time and neither did they, as beneficiaries and administrators thereof. That they maintained an interest in the suit land

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which they protected by lodging the caveat. The Applicants are unknown to them, and that they have never received any notice to lapse the caveat.

7. In rejoinder, the $1^{st}$ and $2^{nd}$ Applicants deposed that they purchased Block 255 Plot 331 and 328 from John Kamurali which they occupy to-date, and have never been challenged by the administrators of the estate. That the Respondents since 2015, have not taken steps to institute a civil suit for trespass or recovery of land; and that maintaining their caveat amounts to abuse of court process.

## Representation.

- 8. The Applicants were represented by Counsel Michael Akampurira from M/s Akampurira & Partners Advocates while the Respondents were represented by Ssebuta Hamza and Nakabugo from M/s Nsibambi & Nsibambi Advocates. Counsel for the parties filed written submissions which have been relied on in this ruling. - 9. Issues for determination. - i. Whether the Respondents' Caveat on Land comprised in Kyadondo Block 255 Plots 327, 326, 328, 329, 331, 332, 333, 1000, 1001 land at Munyonyo should be removed? - ii. What remedies are available? - Counsel for the Applicant raised a preliminary objection which I shall $10.$ resolve before delving into the issues. The preliminary objection regards the Respondents' affidavit in support of the caveat. Counsel submitted that the said affidavit was incurably defective as it was deposed to and signed by both caveators as opposed to the procedure of each deposing a separate affidavit; or one caveator giving the other authorization to swear the affidavit on his or her behalf. That the affidavit offends Order 19 rule 3(1) of the Civil Procedure Act hence rendering the caveat application unsupported. - In reply, it was submitted for the Respondents that the preliminary $11.$ objection is barred in law. That once a caveat is registered by the Commissioner Land Registration, it is legally on title and can only be

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vacated in ways envisaged under Section 140 (1) and (2) of the Registratlon of Titles Act which provides that:

(1) Upon receipt ofsuch caveat, the registrar shall notifu the receipt to the person agalnst whose application to be registered as proprietor or, as the case may be, to the proprietor against whose title to deal with the estate or interest the caveat has been lodged; and that applicant or proprietor or any person claiming under any transfer or other instrument signed by the proprietor may, if he or she thinks fit, 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 either ex pafte or otherwise, and as to costs as it seems fit.

- (2) Except in case of a caveat lodged by or on behalf of a beneficiary clalming under any will or settlement or by the registrar, every caveat /odged against a proprietor shall be deemed to have lapsed upon expiry of 60 days after notice given to the caveator that the proprietor has applied for the removal of the caveat - tZ. Further, that the preliminary objection is untenable as the caveat was already lodged on the certificate of title. That a decision was already taken by registering the caveat hence implying that the Applicants need to invoke one of the three ways as provided under the above provisions of the law. That the Applicants elected to bring the application and they cannot raise the objection since the decision to entertain and register the caveat was already taken by the Registrar. - 13. In Mukisa Biscuits Manufacturing Co. Ltd Vs East End Distributors Ltd (1969) EA 696, it was held that, "A-Pre!!m!0dry obiection consists of an error on the face of the oleadinss whlch rise by clear implication out of the pleadings and which, if argued as a preliminary objection may dispose of the suit'l

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Therefore, for a preliminary objection to stand, it must relate to the $14.$ pleadings at hand before court. In this case, the Applicants' preliminary objection relates to an affidavit in support of a caveat which was acted upon in 2015 by the Commissioner Land registration. This preliminary objection ought to have been raised before the Registrar of Titles who entered the said caveat on the disputed lands and not before this court. Thus, since the caveat was registered, I agree with the Respondents' Counsel that the Applicants have to deploy remedies offered under the above provisions of the law. Consequently, the preliminary objection is overruled. I shall now resolve the issues at hand.

#### Issue No.1: Whether the Respondents' caveat on Land 15. comprised in Kyadondo Block 255 Plots 327, 326, 328, 329, 331, 332, 333, 1000, 1001 land at Munyonyo should be removed?

- Counsel for the Applicants' submitted that for one to lodge a caveat, 16. he or she must have a legal or equitable interest in the land he or she seeks to protect. That the Respondents lodged a beneficiary caveat under Section 139 of the RTA to protect their interest in the estate of the late Francis Walugembe. However, that the question of whether a caveat ought to remain involves an exercise of discretion by the court. - Counsel relied on the case of Rutungo Properties Ltd Vs Linda 17. Harriet CACA No. 61 of 2010 and submitted that the court must balance the competing consideration and evaluate the evidence and facts of each case until the balance conclusively shifts in one direction. He further relied on the case of Eng. Mee Young & Ors Vs Letchumanan S/o Velayutham [1980] AC 331, (quoted with approval in Rutungo Properties Ltd Vs Linda Harriet, supra), where the Privy Council held that where the Applicant is the registered proprietor, he can rely upon his registered title as prima-facie evidence of his unfettered right to deal with the land as he pleases; and that it is for the caveator to satisfy court that there are sufficient grounds in fact and law for continuing to force a caveat which prevents the registered owner from dealing with the land as he pleases.

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Counsel added that the conditions to be proved by caveators were 18. listed in Rutungo Properties Ltd Vs Linda Harriet (supra) to include;

(1) That there are sufficient grounds to maintain the caveat,

(2) that the caveator has brought an ordinary action timeously against the caveatee; and

(3) that the balance of convenience lies in maintaining the caveat rather than its removal.

- It was Counsel for the Applicants' submission that the Applicants derive 19. interest from the Late Kamulari who was the registered proprietor in 1979. That the late Kamulari derived his interest in the disputed land from the late Mayanja Nkangi, the registered proprietor in 1977, who acquired his rights from the City Pharmacy Dispensing Chemists Ltd, the registered proprietor in 1972. That the Applicants as well as John Kamurari are bonafide purchasers for value without notice of fraud against whom no claim of fraud can be maintained. That the subdivision of land was within the rights of the late Kamurali John as the registered proprietor which led to the subsequent transfers and registration of the Applicants. - Further, that the Respondents lodged their caveat in 2015 and took no 20. further action until the Applicants filed the instant Application in January 2024. That the primary objective of a caveat is to give a caveator temporary protection and that it is not the intention of the law that the caveator should relax and sit back for eternity without taking any action. That even if an action was brought against the caveatees, it would not be sustainable since actions for recovery of land after 12 years are barred by Section 5 of the Limitations Act. - On the condition of balance of convenience, the Applicants' Counsel 21. submitted that the Respondents are beneficiaries of the estate of their father who died 50 years ago and only acquired letters of administration to his estate in 2015, 40 years after his passing. That the respondents

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- $22.$ In reply, the Respondents' Counsel relied on Section 139 of the RTA; the case of Ssentongo Produce Vs Coffee Farmers Ltd & Rose Nakafuma Muyiisa HCMC No. 690/99 as cited in Hunter Investments Ltd Vs Simon Lwanyaga & Anor HCMC No. 034/2012; and the case of Simon Kataabu Vs Richard Ssimbwa MIsc. Cause No. 121 of 2020. Premised on those authorities, he submitted that for a caveat to be valid, the caveator must have protectable interest legal or equitable, otherwise the caveat would be invalid. That the $1st$ Respondent relied on the death certificate of the Late Francis Walugembe which showed that he passed on 23/09/1972 yet the transfer registering The City Pharmacy under Instrument No. KLA 67097 on the $16/10/1972$ was after the former registered proprietor had passed on. That the RTA does not give a time limit to a beneficiary caveat and that the Respondents having taken up the administration of the estate in 2015, they were still investigating all the transactions and would not bring an action in a rush. That removing the caveat would lead to transfer of the land into 3rd parties and render the same irrecoverable. - $23.$ In rejoinder, Counsel submitted that the Respondents have not presented any evidence to show that the land was not transferred by their late father prior to his death. That even if the Respondents had a claim, which is not the case, they would have brought the same against The City Pharmacy Dispensing and not the Applicants. Further, that the information in the death certificate was fabricated to mislead court to believe that the suit land was sold after the death of the Respondents' father, especially since the affidavit in support of the caveat makes no mention of the date of their father's death except a claim that the fraud was carried out by means of a special certificate of title issued in 1986. That this evidence is contradictory, false, inconsistent and prayed that court should not rely on it.

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- 24. According to the record, the Respondents' claim is that the suit property belonged to their late father who could not have legally transferred it in October l9T2having died on 23d September, t972.fhat record also reveals that the Respondents hold letters of administration of their father's estate granted by the High Court on 7th April, 2015 by the High Court hence their claim that the suit land is estate property. - 25. Under Section 139 (1) of the Registration of Titles Act Cap 230, for a caveat to be valid and sustainable, the caveator must have a caveatable interest, legal or equitable in the land. This was properly reiterated by Counsel for the parties. However, Section 140 (1) of the RTA enjoins this court with powers to remove or lapse caveats lodged on Registered Land (See. Ali Sidi Ngarukiye Vs Muyonga Andrew Mubiru HCMisc. Cause No. 3U2008).

- 26. It is evident that the late Francis Walugembe owned the suit land, at one time. This fact was admitted to by the l't Applicant under paragraph 4 and 5 of his affidavit in rejoinder where he stated that'l..the suit land was transferred from the names of Francis Mary Joseph Walugembe Salongo in 1972 to the names of City Pharmacy Dispensing Chemists Ltd... "He further added that, "subsequently, the suit land was transferred into the names of Mayanja Nkangi in 19ZZ and lohn Kamurari in 1929." - 27. Acopy of the certificate of title attached to the affidavlt also shows that until now, the suit land has been transferred more than twice since it was transferred from the late Francis Walugembe's name. - 28. The caveat in issue was lodged on the 25106/2015 on land comprised in Block 255 Plots 324,325,326,327, 328,329,33I,332,333, 1000, 1001 land at Munyonyo. The said land has its roots from Kyadondo Block 255 Plot 114 comprising of 10 acres which was registered in the names of Francis Mary Joseph Walugembe from L3ll0lL964 to l6llolt97L. According paragraph 4 of the affidavit in support of the said caveat, it is stated that a special certificate was unlawfully issued in 1986. However

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from the ceftificates of title on record, it is deduced that the suit land by 1986, when the alleged special certificate of title was issued, had been transferred from the Respondents'late father, as follows.

t ,

- 1. Transferred to The City Pharmacy Dispensing Chemists Ltd on t6lLll1972 from Francis Mary Joseph Walugembe Salongo, who was registered thereon on 1311011964. - 2. Transferred to Mayanja Nkangi in 1977 and later to Kamulari John on U031L979. - 3. Further, a special certificate of title was thereafter issued to the late John Kamulari on 18/11/1986 in respect of land in Block 255 Plot 331, which was later transferred to the 1st Applicant on r8l07lL99r. - 29. The above revelations show that the alleged special certiflcate of tittle was acquired long after the transfer of the orlginal plot of the suit land, from the Respondents' late father's name in 1972 and after a subdivision of the said plot. Its therefore difficult for me to believe the contention by the Respondents that the suit land has at all times belonged to their late father. - 30. In the circumstances, I agree with the Applicants that the Respondents' interest in the suit land was extinguished in 1972 when the original plot of the said land was transferred to The City Pharmacy Dispensing Chemists Ltd. - 31. The Respondents asserted that the failure to follow up their fathers' estate was because of their minority age. However, this defence has a limit, in view of the fact that minority age ends upon attainment of 18 years, according to Article 257(c) of the Constitution of the Republic of Uganda of 1995, as amended. Thus, if the Respondents'father died in t972, by 1990, 18 years had passed-implying that the Respondents had become adults by that time. I find lodging a caveat in 2015, 43 years after the death of their father, and 25 years after becoming adults, with the fact that the suit land had been exchanged through several hands.

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- Furthermore, in Eng Mee Young Vs V. Letchumanana S/o 32. Velayutham [1980] AC 331, Lord Diplock rightly observed that "the effect of entry of a caveat is a grave curtailment on the rights of the proprietor, yet it can be imposed at the instance of any one who makes a claim, however baseless that claim may turn out to be. Caveats are available in appropriate case, for interim protection of rights to title to land or to registrable interest in land that are alleged by the caveator but not yet proved". In addition to that, the court in Baynes vs Gather (1968) EA 385 rightly held that the primary objective of a caveat is to give a caveator temporary protection. - In this case, after lodging their caveat in 2015, the Respondents sat 33. back and relaxed. The submission of their Counsel that they were still investigating the fraudulent entries and could not bring an action in a rush cannot be believed since about 9 years had passed since lodgment of the caveat. Counsel did not state what time was enough for the Respondents to conclude their investigations and act. For that cause, I am infatuated by the observations of the Court of Appeal to the effect that "..a caveat acts as a statutory injunction....it is vital that claims made by a caveator are enforced by an action without undue delay" (Rutunyo Properties Ltd vs. Lind Harriet Carrington Civil Appeal No.61 of 2010). In this case, it is evident that the Respondents are guilty of undue delay in enforcing their alleged rights in the suit land. - In the circumstances, I find no reasonable cause as to why the 34. Respondents' caveat should not be vacated. Consequently, the first issue is found in the affirmative.

## Issue No.2: What remedies are available? 35.

- In view of the finding on the above issue, this court hereby grants the 36. orders as sought in the application in the following terms. - 1. An order directing the Commissioner for Land Registration to remove or vacate the Respondents' caveat lodged on 11/08/2015 under instrument No. KCCA -00020002 on Land Comprised in Kyadondo Block

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255 Plot 327,326,328,329,33L,332,333, 1000, 1001 land a1 Munyonyo- Kampala District.

2. Am alive to 5.27 Civil Procedure Act but let each party bear its owr costs for this application.

4tl1 July Signed, dated and delivered at Kampala this day of 2024.

Nabakooza Flavia. K Judge