Kiggundu v Commissioner Land Registration (Miscellaneous Application 63 of 2022) [2024] UGHC 791 (28 August 2024)

# **THE REPUBLIC OF UGANDA** IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO **MISCELLANEOUS CAUSE NO. 63 OF 2022**

**.....................................** KIGGUNDU HERMAN ::::::::::::::::

## **VERSUS**

# COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

#### BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

$1.$ This application was for vacating a caveat brought by Notice of Motion under the provision of section 140 $(1)$ & $(2)$ of the Registration of Titles Act, Cap 230, section 33 of the Judicature Act, Cap. 13, section 98 of the Civil Procedure Act, Cap. 71, and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules, S. I. 71-1. The Applicant is seeking for orders that:

- (a) an order doth issue against the Respondent, its agents, representative to show cause why the caveat it lodged on land at Mpoma Kyaggwe Block 97, Plot 3895 should not lapse; - (b) the Respondent's caveat be vacated from the Applicant's land: - (c) the Respondent pay compensation/damages to the Applicant for lodging the aforesaid caveat without lawful or reasonable cause; and

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(d) costs of the application be provided for.

$\mathcal{L}$ The application is supported by the Applicant's affidavit and the grounds are that:

- (a) the Applicant is the registered proprietor of the land at Mpoma Kyaggwe Block 97, Plot 3895 on which he got registered on the certificate of title on the $4<sup>th</sup>$ September. 2022 at 10:55 under Instrument No. MKO-00093145: - (b) the Applicant has since developed the above-mentioned land with a residential house in which he is residing with his family: - (c) the Applicant applied and processed a loan with Centenary Bank, pledged the certificate of title to the land as a security and a mortgage was registered thereon under Instrument No. MKO-00095377: - (d) the Applicant came to know about the caveat when he wanted to process and acquire another loan in order to facilitate his business when the bank informed him that it was impossible to get the loan as the certificate of title he pledged as security had a caveat lodged thereon; - (e) the Applicant decided to make a formal search to ascertain the bank's statement and found out that the Respondent had lodged caveat on the 20<sup>th</sup> day of May, 2022, under Instrument No. MKO-00125020;

- (f) a caveat is a temporary measure and only lasts for 60 days in which the caveator has to take further step, however since the Respondent lodged the caveat on the 24<sup>th</sup> May, 2022, he has never taken any further step to prove its interest in the suit land: - (g) the Respondent does not have or claim any equitable or legal interest on the suit land and his action of lodging the caveat on the land is illegal and unlawful; - (h) the Respondent's action of lodging a caveat on the Applicant's land has caused him financial and psychological loss; and - (i) in the interest of justice, equity and fairness, court should issue order against the Respondent to vacate the caveat.

The Respondent opposed the application through an affidavit in $3.$ reply sworn by Mr. Ssekabira Moses, the Acting Commissioner Land Registration dated 26<sup>th</sup> September, 2023. The grounds of the contention are as follows that:

(a) the Office of the Commissioner Land Registration received a letter captioned DSD/PO/028/05/2022 on the 10<sup>th</sup> day of May, 2022 from the Office of the President wherein they were investigating land comprised in Block 97, Plot 3895 land at Mpoma:

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- (b) the Office of the Commissioner Land Registration in exercise of the powers granted by the law lodged a caveat pending the investigations by the Office of the President in regard to the suit land: - (c) unlike other caveats, the caveat of the Respondent does not lapse after 60 days as stated in the supporting affidavit; - (d) the Respondent was empowered to lodge a caveat under the law at that time to protect interests of other interested parties; and - (e) this application is misconceived and ought to be dismissed with costs to the Respondent.

$4.$ During the hearing of the application, Counsel Onyango Joseph from M/s Higenyi, Ngugo and Wadamba Advocates appeared for the Applicant. Counsel Twagiramungu Joshua from the Office of Commissioner Land Registration represented the Respondent. Only the Applicant's counsel filed written submissions which are considered herein below.

#### Issue

Whether the Respondent has shown cause why the caveat lodged by it should not be vacated.

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It was submitted for the Applicant that the lodgment of a caveat $5.$ is a statutory right granted under the Registration of Titles Act, Cap. 230, which enables any person with an interest in registered land to lodge a caveat to protect their interest. Counsel argued that however. the right to lodge a caveat is not absolute and must be exercised reasonably and in good faith. That for a caveat to be valid, the caveator must have a protectable interest legal or equitable to be protected by the caveat otherwise the caveat would be invalid. That where a caveat is lodged without justifiable cause, the court has the power to order its removal. That the principle of justifiable cause for lodging a caveat implies that a person who lodges a caveat must have a legitimate interest or concern in the property that the caveat is being lodged against. That this ensures that a person cannot simply lodge a caveat frivolously or maliciously, thereby causing unwarranted inconvenience to the proprietor or delaying their dealings with the property.

6. The Applicant's counsel further argued that another key principle in the lodging of a caveat is the requirement to notify the proprietor against whom the caveat is lodged. That this notification serves to inform the proprietor of the caveat and enables him or her to take necessary action, such as summoning the caveator to show cause why the caveat should not be removed. In addition, that there is a time frame within which the caveator must show cause why the caveat was lodged, failure of which the caveat lapses.

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The Applicant's counsel added that a caveat can only be $7.$ lodged if there is a justifiable cause or interest in the property, and that the caveator must be notified and given the opportunity to show cause why the caveat should not be removed. If the proprietor applies for the removal of the caveat, it will lapse after sixty days unless the caveator has a justifiable cause or interest.

8. That in the present case, it is important to establish whether the Respondent had a justifiable cause or interest in lodging the caveat, and whether the Respondent was notified of this application for the removal of the caveat and given an opportunity to show cause why the caveat should not be removed. That the evidence presented in this case shows that the caveator, the Commissioner Land Registration, had no justifiable cause or interest to lodge the caveat against the Applicant. That the Commissioner did not provide any evidence or affidavit to support their claim for lodging the caveat and failed to respond to the letter requesting them to do so.

$\overline{9}$ That there is no justifiable reason for the Commissioner to have lodged the caveat against the Applicant. Furthermore, there was no evidence to suggest that the proprietor was notified of the caveat as required by law. That this lack of notification is a clear violation of the Registration of Titles Act and calls into question the validity of the caveat

$10.$ Besides, the Applicant's counsel contended that it is clear that the time limit for the caveator to show cause has already lapsed, as

$6$ the Commissioner has not responded to any of the correspondence or attempted to show cause within the required timeframe. That this failure to act on his part further supports the lack of justifiable cause for the lodging of the caveat.

$11.$ It was further asserted for the Applicant that when a party suffers damage or loss as a result of the wrongful act of another party, he or she may be entitled to receive compensation for the harm caused. That the purpose of damages is to put the affected party back in the position they would have been in had the wrongful act not occurred.

In addition, the Applicant's counsel argued that a caveat can be $12$ removed in a number of circumstances, including if it was lodged without justifiable cause or if it has lapsed. That the order to vacate the caveat is important as it enables the property owner to deal with the property without any restrictions or encumbrances. The Applicant's counsel prayed that this court considers the Applicant's submissions and grants the reliefs sought.

## Court's consideration.

It is trite law that for a caveat to be valid, the cavetor must have 13. an interest legal or equitable to be protected and this was held in the case of Sentongo Produce & Coffee Farmers Ltd v. Rose **Nakafuma HCMC 690/99.** The primary objective of lodging caveats is well articulated in the case of Boynes v. Gathure (1969) EA 385, where it was held that:

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"that the primary objectives of a caveat is to give the caveator" temporary protection. It is not the intention of the law that the 'caveator should relax and sit back for eternity without taking positive steps to handle the controversy, so as to determine the rights of the parties affected by its existence".

$14$ Section 140 (1) of the Registration of Titles Act, Cap. 230, vests this court with full power to order for removal of a caveat in the event that the caveator does not show sufficient cause why the same should not be vacated. It provides thus:

"Upon the receipt of such caveat the Registrar shall notify the receipt to the person against 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 parte or otherwise, and as to costs as to it seems fit."

15. In the case of Nakabuye Agnes v. Martin Strokes & Anor, **HCMC No. 38 of 2021**, Justice Henry I. Kawesa held at page 4 of his ruling that:

"Under Section 140(1) of the Registration of Titles Act, this Court is empowered, in applications of this nature, to make such orders as it deems fit. This includes the power to order the removal of a caveat where the caveator fails to show cause show why it ought not to be removed."

16. Since a caveat provides for temporary protection of interest, the caveator is therefore required to bring an ordinary action without undue delay for court to determine his or her rights as against other rights or competing interests and to obtain permanent remedy in appropriate cases. While relying on the Court of Appeal of Malaysia's decision in the case of Lim Ah Moi v. Ams Periasamy Suppiah Pillay, Civil Appeal No. A-2-641-1995, the Court of Appeal of Uganda in the case of **Rutungu Properties Limited v. Lind Harriet Carrington, Court of Appeal Civil Appeal No. 61/2010**, held that:

> "It is well settled that a caveat acts as a statutory injunction which fetters a registered proprietor from dealing with the property and exercising all the rights conferred upon him by the code. Because of its far reaching effect, it is vital that claims made by the caveator are enforced by action without undue delay."

17. It is important to note that in Uganda, caveats are confined to particular circumstances specified under Section 140 (2) of the Registration of Titles Act, Cap. 230 (now Cap 24) which provides that: "Except in the case of a caveat lodged by or on behalf of a beneficiary claiming under any will or settlement or by the

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registrar, every caveat lodged against a proprietor shall be deemed to have lapsed upon the expiration of sixty days after notice given to the caveator that the proprietor has applied for the removal of the caveat "

- 18. The gist of the above cited authorities is that the purpose of a caveat is only to allow time for the caveator to apply to the court to enforce or determine his or her interest in the land in issue. The evidence on court record clearly shows that the caveat which is the subject matter of this application was lodged by the Respondent on 24<sup>th</sup> May, 2022. Legally, a caveat lodged by Respondent does not lapse upon expiry of sixty days. However, the Respondent or any other interested party who could have initiated the lodging of the caveat was therefore obliged to show reasonable cause why the said caveat was lodged lest it be removed. - $19$ The Respondent in the instant case did not attach the purported letter from the President's Office which it claimed necessitated it to lodge the caveat. Moreover, there is also no evidence shown by the Respondent to prove that the Applicant, being the registered proprietor of the suit land was notified about the intended lodging of the caveat before it was actually lodged as required by law. No third party with equitable or legal interest in the suit land was mentioned by the caveator nor did the Respondent show to this court that they have interest in the suit land

- 20. Therefore, I find that the Respondent did not show sufficient cause why the caveat was lodged and why it should be further maintained. The continuance of the said caveat will, in my judgment, be prejudicial and detrimental to the Applicant, who is the registered proprietor of the suit land and who, since the lodging of the said caveat over two years ago, has been inconvenienced and prevented from dealing with his land as he deems necessary. - $21.$ Based on the foregoing analysis, I find merit in this application and hereby allow it with the following orders: - (a) the Respondent is hereby ordered to vacate the caveat lodged by it on 14<sup>th</sup> May, 2022, under Instrument No. MKO-00125020, within 14 days from the date of this ruling; - (b) each party shall bear their own costs of this application; and - (c) no damages are awarded since no loss was proved by the Applicant. I so rule and order accordingly.

This ruling is delivered this ....................................

**FLORENCE NAKACHWA JUDGE.**

In the presence of:

(1) Counsel Ibrahim Abdul Majid from M/s Semengo and Co. Advocates, for the Applicant;

(2) *Mr. Kiggundu Herman, the Applicant;* (3) Ms. Pauline Nakavuma, the Court Clerk.