Kiggundu v Kamoga and Another (MISC. CAUSE NO. 0118 OF 2024) [2025] UGHC 168 (22 January 2025)

Full Case Text

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

#### MISC. CAUSE NO. 0118 OF 2024

## DR. EDWARD WILLIAM KIGGUNDU ::::::::::::::::::::::::::::::::::: VERSES

## 1. KAMOGA MUHAMADI (Holder of powers of Attorney from Kawuki Lawrence Mukisa Ssebutinde)

2. COMMISIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

## BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K **RULING**

The Applicant moved court by way of notice of motion under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Sections 140, 142, 144 & 188 of the RTA, Order 52 rule 1, 2, & 3 of the Civil Procedure Rules SI -71-1 for orders that:

- a. The caveat lodged on land comprised in Busiro Block 436 Plot 36 at Bakaya measuring approximately 13.248 Hectares be vacated/ removed, *(herein after* referred to as, 'the Suit land'). - b. The 1st Respondent pays compensation for illegally lodging a caveat on the Applicant's land. - c. The $1^{st}$ Respondent pays the costs of the Application.

The grounds of the application are contained in the notice of motion and supported by the affidavit in support deposed to by Lydia Nakamalira Tamale (holder of Powers 15 of Attorney from the Applicant). She deposes that the Applicant is the registered proprietor of the suit land having acquired it from the then owner, M/s Bukaya Holdings Ltd in 2011 after conducting proper due diligence. That the Applicant took immediate possession and fenced off the entire parcel without interference from any would be claimants. That on $16/04/2024$ , the 1st Respondent lodged a caveat as a 20 holder of powers of attorney from a one Kawuki Lawrence Mukisa Ssebutinde a beneficiary of the estate of the late Ssebutinde Emmanuel and a tenant by occupancy, which claims are not supported by any evidence nor brought to the

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attention of the Applicant at the time of purchasc in 2011. That even if the 1" Respondent and those from whom he claims had any right, his claim is barred by Iimitation since the cause of action arose in 2002 about a decade before thc purchase by the r\pplicant over two decades by the timc o[ lodgment of the caveat. 'Ihat thc 1" Respondent is not a bcneficiary in the estate of the latc Sscbutinde Emmanucl to claim under a W l as envisagcd under thc larv and that hc has no locus standi to lodge any cayeat on the Apphcant's land. 'fhat it is iust ancl fair to grant the appl.ication.

Both Itcspondents Frled their affidavits in reply, rvhose contents are on tecotd.

I(amoga Muhamad averred that I(arvuki is onc of thc children of thc late Ssebuunde Ijmmanucl .,vho orvncd a Kibanja mcasuring approximately 6 acrcs; and that during his lifc time, he had authoriscd l(av'uki to plant seasonal crops thereon. -l'hat in 2002, a or,e N{ark Graves claimed to be the lawful orvner and destroyed l(awulo's crops and undertook to compensate him in monetary valuc. 'fhat I(arvuki continued utilizing thc land with his fathet until they werc chascd from the same in 2009 by Mark (]tavcs, .,vho later le ft thc country beforc compensating I(awuki. Howcvcr, that unkno',vn army pcrsonnel rvere brought to thc land guarding the same to datc. 'l'hat later, I(arvuki's fathcr fcll sick and died before insututing a case against Nlark Graves or his company in respect of the land. That I{arvuki and his other siblings havc been issued rvitl.r a ccrtificate ofno objcction and arc in thc proccss ofacquiring Lettcrs of r\dminisuauon for thcir fathcr's estate. -Ihat l(awuki has also instrtutcd CS No. 812 of 2024 in rcspcct of the same, hence makrng it just to maintain the cavcat until the hearing and determination of the said suit. 10 15 20

I(arvuki corroborated the er.idcnce of I(amoga N{uhamad and addcd that his fathcr fell sick in 2010 and Iater dicd in 201l . 'l'hat duc to hrs ill hcalth, I're failed to institutc a case against Mark Gtaves ot his company in respect of the said land. 25

Mr. Ssckabira Moses, a Registrat of Tides with the 2"d Respondent in his affidavit in tcply deponed that the 1'' l{cspondent made an applicat-ron tc lodgc a cavcat on thc suit land and rvas accomixnicd bv an afFtdavit clcarli' statrng a cavcatablc intercst. f'hat thc 2"r ltespondcnt performed its mandatc on the legaliry o[ documcnts presented by the complainant subject to Section 88 of the l,and Act believing the same to be true without any sinistet motive to defraud. 30

'Ihc Applicant flled a rcjoinder rvhctcin he dcposed that the 1'' llcspondent has failed to prove any tenancy by occupancy tr; jusufy thc cavcat lodged and that since [.ris car.catablc intercst arosc in 2002 and 2009, his claims are timc barred.'I'hat thc suit frled, ifat all it exists, is an abuse ofcourt proccss having been filed to frusffatc 35

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the instant application. That the 1st Respondent has no caveatable interest in the suit land and that he unlawfully and unfairly lodged the same, which should be removed.

Representation; the Applicant was represented by Counsel Blasto Byabakama from M/S Tamale & Co. Advocates, the 1st Respondent was represented by Counsel Bbaale Sadat from M/s Bbaale & Partners Advocates while the 2nd Respondent was represented by Counsel Nakato Janat. Counsel filed written submissions which have been relied on in this ruling.

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- Before going into the merits of this application, I shall address a preliminary $10$ objection raised by Counsel for the 1st Respondent's Counsel in his submissions. This is to the effect that the instant application is not supported by any evidence. He argued that the deponent claims to be a holder of powers of attorney from the Applicant but no such evidence is attached to the affidavit. He relied on the cases of MHK Engineering Services U Ltd Vs Macdowell Ltd HCMA No. 825/2018 15 and Black Market Records Vs Malinga Sulaiman & Ors MA No. 2788 of 2023 where it was observed that, 'indeed, there was no proof attached to the affidavit to - and an affidavit sworn by a person without requisite capacity is incompetent and fatally defective and cannot be cured by any stretch of the application of the principles of $20$ substantive justice'. He added that the deponent did not attach a copy of the power of attorney to confirm that indeed she had locus to testify on behalf of the Applicant and that with no such evidence, it renders the application defective. He prayed that the application should be dismissed. $25$

show that the deponent had capacity to depone an affidavit on behalf of the company

The Applicant filed his submissions in rejoinder on $7/11/2024$ wherein he relied on the case of Mayanja Joshua Kajubi Vs Wasswa Amon Bwogi & Anor HCMA No. 44 of 2016 and argued that the 1st Respondent's Counsel is giving evidence from the bar. That the above allegation was not raised in the affidavits in reply and that the same cannot be raised in submissions. That the Applicant made it clear that 30 the application was supported by the affidavit of Lydia Nakamalira, a holder of a power of attorney from the Applicant. That the power of attorney was not attached because they contained personal information which might be used to the Applicant's detriment. Counsel further submitted that should this court be inclined to receive the 1st Respondent's evidence from the bar, it should also receive the Applicant's 35 copy of the power of attorney attached and marked as **annexure B**.

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It is trite law that, any act in any action required or authoflsed by law to bc made by a pafty, except where otherwise expressly ptovided by any la',v, may be made by thc party rn pcrson or I'ris or hcr rccogniscd agcnt, or by an acl'r.ocatc duly appointcd t<r act on his or hcr bchalf (Order 3 rule 1, 2(a) of the Civil Procedure Rules). In this case, the applicatron was Frled in thc namc of I)r. Iidrvard \)frlliam Idggundu, berng the Applicant, and its afFrdavit in support dcposcd to by Lydia Nakamalira 'famale, claiming as a holdet of a power of attorncy from thc Applicant.

'l'hc Apphcant's (-r:unscl cited nvo High Court dccisions to thc cffcct drat tl.rc tailure to attach a documcnt showing to swear an affidavrt renders it incurablv dcfccuvc. 'I'hat said, I am mindful that thcsc atc High Court dccisions, and there forc they arc persuasive. I am also alivc to thc fact that thcre is no exprcss provision of the larv to the effect that failure to attach a power of att()rncy or any wtitten authoritv to an afFrdar,'rt renders it rncurablv dcfcctivc. Corollary to that, I am mindful that thc larv on affidavits is rnainly conccrncd rvith the deponent's knorvledge or belicf of facts rclcr.ant to thc matter at hand, rather than writtcn autl.rorization by a party to a n'rattcr (Order 19 R.3 of the Civil Procedure Rules). 'l'o that cxtent, thcrcforc, in acasc rvith similar facts as thc instaflt onc, my lcarncd brothcr Nlubiru J., r>bscn'ed that: 10 15 20

From the aboae discourse it then becomes clear tlnt throughout the ueb of legnl proaisions relating to affidauits, one golden thread is nllonys to be seen; that whnt is required in ffidnaits is the lenotoledge or belief of the deponent, ratler tlun authorizntion bt1 apar\ to the litigntiorl...l lfit)e considered tlv auailable decisions posititlg the principle thnt a person is not to srl)ear an Affdaoit in a representatiae cnpacity unless he or she is an adaoalte or holder of poTl)er of attorney or duly authorized... Those decisions posit the uieTu tl'tnt uthere there is no ruritten authority to slt)ear on behfilf of the others, the ffidnoit is defectiae. I luue not found nny basis for that principle in tlrc rules of eoidence nor those of procedure. Tfu principle appears to haae detteloped from tlrc analory of representatioe suits, tohiclt analogy I find to be nrisplaced (l.,lamutebi Matilda vs Ssemanda Simon and 2 Others, MA No. 430 of 2021).

It is ncedful to add that thc abovc position rvas follrxvcd by my learned brothcr I(arvesa J., in Ikonero Mubatak & Anor vs Wagagai Mining Ltd & Others HCMC No.03 of 2023. Having apprcciated thc rcasoning in thc ptcceding nvo decisions and the one in those cited by thc 1'' I{cspondent's Counscl, I am persuaded to adopt thc onc in thc formcr dccisions.

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In this case, the deponent to the affidavit in support demonstrated knowledge of facts deposed to. This being so, I find that sufficient, notwithstanding her failure to attach a power of attorney. In conclusion, the preliminary objection is overruled. Counsel for the Applicant raised the following issues for determination by court;

- i. Whether the 1st Respondent's claim is barred by limitation? And if so, whether the same can be a basis for lodging a caveat? - ii. Whether the $1st$ Respondent has a caveatable interest on the suit land? - iii. Whether the Applicant is entitled to compensation from the $1st$ Respondent for lodging the caveat without reasonable cause? - iv. Remedies available?

#### Resolution of the issues

Issue No.1: Whether the 1st Respondent's claim is barred by limitation? And if so, whether the same can be a basis for lodging a caveat?

The Applicant's counsel relied on Section 5 and 6 of the Limitation's Act and the 15 case of FX Miramago Vs Attorney General [1979] HCB 24 and submitted that the time limitation for recovery of land is 12 years. That in this case, that the 1st Respondent claim is that his property was destroyed in 2002 by a one Mark Graves but lodged a caveat on the Applicant's land on $16/04/2024$ thus rendering his claim statute barred, especially since the Applicant has been in possession of the suit land 20 since 2011.

In reply, the 1st Respondent's Counsel cited the Supreme Court Case of Attorney General Vs Major General David Tinyefuza Cont. Appeal No. 1 of 1997 and 25 the case of Tororo Cement Co. Ltd Vs Frokina International SCCA No. 2 of **2001** for the definition of cause of action. He further relied on **Section 21 (1) of the** Limitation Act, Order 7 Rule 6 of the Civil Procedure Rules and the case of Amin Aroga Vs Hajji Muhammad Anule (2018) and argued that a person who suffered from a disability can institute a suit within 6 years after a disability has 30 ceased. That the Applicant's father suffered from a mental incapacitation until 2017 when he passed on without instituting a suit against Mark Graves. That the 1st Respondent, at the time, had no capacity to sue on behalf of his father; and that his father too was not in condition to institute the said suit. That it was only after the Respondent had returned to Uganda from South Sudan in 2023 that he lodged the 35 caveat. That the court should focus on whether the caveat lodged by the Applicant should be vacated, and not to go into the merits of the tenability of any suit.

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#### **Determination of the Issue**

Having appreciated the facts of the case and the law, I am in agreement with Counsel for the 1st Respondent's argument that the issue of time limitation cannot be determined in this application. This is simply because **Section 5 of the Limitation Act** and the decisions, as cited by the Applicant's Counsel, envisage such an issue to suffice in suits of recovery of land only, which is not the case in this application. For that reason, the first issue, and its extension, are hereby struck out under Order 15

#### R.5(2) of the Civil Procedure Rules.

## Issue 2: Whether the 1st Respondent has caveatable interest in land comprised in Block 435 Plot 36?

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Counsel for the Applicant relied on Section 140 (1) of the Registration of Titles Act Cap 24 and the case of Ssentogo Produce & Coffee Farmers Ltd Vs Rose Nakafuma HCMA No. 690 of 1990 and argued that for a caveat to be valid, the caveator must have caveatable interest, legal or equitable. That in this case, the 1st Respondent claims to hold a power of attorney from Kawuki Lawrence Mukisa Ssebutinde, a beneficiary in the estate of the late Ssebutinde Emmanuel. That however, the 1st Respondent is not a beneficiary to that estate and cannot lodge a caveat in his own right. Further, that the 1st Respondent has not attached any proof to support any allegation of existence of adverse interest yet the Applicant acquired the land in 2011, completed purchase and transfer in 2013 and fenced it off without any interference.

In reply, Counsel for the $1^{st}$ Respondent relied on Section 123 (1) of the Registration of Titles Act; and the case of Edward Fredrick Ssempebwa & Anor Vs Ndyagumanawe Richard Douglaus & Anor MA No. 149 of 2023 where Naluzze Batala noted that caveatable interest is a claim of proprietary or quasi proprietary nature in a particular piece of land. He argued that the 1st Respondent's father owned a kibanja measuring 6 acres and hence lodging the caveat in his capacity as a beneficiary. He also relied on the case of Sir John Bagere Vs Ausi Matovu CA No. 7 of 1996 where it was held that, lands are not vegetable to be bought from unknown sellers. That the Applicant bought the suit land in 2011 without inquiring if there were any bibanja owners.

In reply still, the 2nd Respondent also relied on Section 123 of the RTA Cap 240 and the case of Isreal Kabwa Vs Martin Banoba Musiga CA No. 52 of 1995 to contend that Kamoga Muhammad, being a holder of a power of attorney of Kawuki Lawrence, presented documents claiming to have protectable interests in land

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compriscd in lllock 436 Plot 36 Lar'd at Ilukaya rvhich rvas rcgistercd by the 2"r Rcspondcnt undcr Instrumcnt No. WBU 00391190 on 16/04/2024.

- -fl-re 2"d Respondent further relied on Boynes Vs Gathure (1969) EA 385 and the Registered Trusteed of the Daughters of St. Theresa of the Child of Jesus (Banyatereza sisters) Vs Kabeizi Patricia MA No. 43 of 2020 and argucd tl.rat, a caYcat imposcs a mandatory obligation upon thc ca|cator to takc actir.c stcps to putsuc his or hcr rights ovcr the registered land. That thc cavcator (l" re lpondent), in this case, instituted CS No. 812 of 2024 pending determination in a bid to attain a pcrmancnt rcmcdy. - 10

## Determination of the issue.

I do agtce rvith thc authorities cited by Counsel that a caveator must har.c an intcrcst, legal or equitable, at the time of lodging the ca\.eat.

- ',[hc evidcnce shows that while lodgng the caveat, thc 1'' Respondent claimcd as a tenant by occupancy without further infotmation to substanuate the claim. What he only prcsentcd was a deed ofdonauon ofland datcd 28/11/1983 for land in Bukaya llusiro given to Ka\*uki I-orence Mukrsa by Iimmanucl Scbutinde. The registered ptoprictot of thc suit land bcnvccn 1983 to 2002, as pcr the rccord, rvere Nlaliya Nakarvang; thcn, Peter lL. B. Babigamba; and latcr, llukava Floldings, from rvhom thc 1'' l{cspondent claims compcnsation. Without sufficicnt informauon, it is difficult to infer that the 1'r Respondent qualifred as a tcnant by occupancy under any of the said proprietors. In the same vein, thc 1'' Rcspondent has neither prescnted any evidence of the alleged destruction of crops, eithcr in 2002 and 2009, 15 20 - nor any decd of compensation to which N{atk (lravcs or I}ukaya Holdings arc pri.'y. In vicrv of thc above, I am unablc to concludc that thc 1'' I{cspondent had a caveatablc interest in the suit land at the trme of lodging the caveat at hand. ,\ccordingly, the issue is found in the negative. 25

Issue No.3: Whethet the Applicant is entitled to compensation ftom the 1"' Respondent for lodging the caveat without reasonable cause?

Whcther or not thc cavcat was lodged without reasonablc causc is a question of fact, but dcpendcnt on cr.idence.

In this case, I only found that the 1'' Respondcnt did not Icad cvidcncc of a car.catablc intcrcst in the suit land at the trme of lodging thc car.cat, rvhich would have aided in ansrvering the said question in his [avour. Ncvertheless, I am alive to thc fact that he F ed Civil Suit No. 812 of 2024 and that he would havc the opportuniw to lead evidence to support his clarm of intcrest in thc suit land. 'l'hat

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being thc casc, I am unable to dctctmine the issuc at hand, in order to avoid prejudging thc merits of Civil Suit No. 8'12 of 2024 and the likeLihood of giving conflicting conclusions. r\ccordingly, this issue is struck out as rvell.

5 In conclusion, thc sccond issuc having succccdcd, I hcrcbv grant the applicauon in the following tcrms;

> a. 'I'hat the cavcat lodged by the 1" Respondent on land comprised in llusiro Block 435 Plot 36 at Bakaya measuring apptoximately 13.248 Hectares be vacatedf removed.

b. 'l'hc 1'' ltcspondcnt shall pav thc costs of thrs applicatron.

2025. o 15 Signcd, datcd and delivered at l(an-rpala this. .2?.[d. . da1, of .. JANUARY

Nabakooza Flavia. I( Judge

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