Mbabazi Akiiki v Rubanga and Another (Misc Cause 8 of 2023) [2025] UGHC 88 (10 February 2025)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA MISC. CAUSE NO. 08 OF 2023

MBABAZI AKIIKI AINEA:::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 1. RUBANGA JAMES

# 2. THE COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

- In this Application brought under Ss.140 &142 RTA, CAP 230, S.98 CPA, $[1]$ and 0.52 rr.1, 2 & 3 CPR, the Applicant is seeking orders that: - 1. The caveats lodged on $3^{rd}$ December 2020 by the $1^{st}$ Respondent against the land formerly registered to the Applicant comprised in LRV 2119, Folio 17, land at Nyakaihura, Kyabigambire-Bugahya, Block 16, Plot 435 and against the land curved out of it be immediately withdrawn. - 2. A permanent injunction be issued against the Respondents and any of their agents or persons drawing authority from or in relation to them, restraining them from lodging any further caveats on the suit land. - 3. Costs of the application be provided. - The grounds of the Application are outlined in the affidavit in support of $[2]$ the Application deposed by the Applicant, Mbabazi Akiiki Ainea which briefly are as follows: - a) The Applicant was the registered proprietor of the land comprised in LRV 2119, Folio 17 land at Nyakaihura, Kyabigambire-Bugahya Block 16, plot 435 of which he subdivided and sold a portion of the said land measuring 41.168 hectares to a one Nyamutale William.

- b) That after the subdivision, the above said land is now comprised in Plot 435, Block 16, Estate at Nyakaihura, Kyabagambire, Bugahya County, Hoima District measuring 34.632 hectares registered to the Applicant and Leasehold Register Volume Mass Folio 22, Bugahya 16 Plot 434 land at Nyakaihura, Kyabigambire, Bugahya County, Hoima Distrist measuring 41.168 hectares registered to Nyamutale William. - c) That the $1st$ Respondent irregularly and deceitfully without any valid claim of right lodged caveats on the said properties. - d) That it is in the interest of justice that the Application is granted. - [3] In his affidavit in reply, Rubanga James, the 1st Respondent deposed briefly as follows: - a) That the Applicant's affidavit in support of the Application is full of falsehoods and the same ought to be expunged off the court record. - b) That the 1st Respondent is a holder of powers of Attorney and a beneficiary of the estate of his elderly mother a one Mary Kalekwa who is a bonafide tenant on the Applicant's land. - c) That on $30^{th}/03/1993$ , the Applicant the Applicant was granted title to the said land after being fraudulently registered thereon as proprietor without knowledge of the lawful bonafide occupants who included the 1st Respondent's mother, Mary Kalekwa. - d) That on $9^{th}/07/2013$ , the Applicant fraudulently sold the said land to William Nyamutale without knowledge, consent and compensation of the lawful customary owners thereon. - e) That the Applicant and his colleagues held a meeting to oust the $1^{st}$ Respondent from the village in order to force him to vacate the land but he reported the matter to police and the RDC and also lodged a caveat on the said land.

### **Counsel legal representation**

The Applicant was represented by the firm of M/s Mutungi & Co. $[4]$ Advocates, Kampala while the $1^{st}$ Respondent was self-represented.

# Issue: Whether the $1st$ Respondent has shown cause why the caveats should not be removed.

#### Section 140(1) of the RTA, Cap 230 provides thus; $[5]$

"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 as it seems fit."

From the above provision of the law, this court is empowered to entertain Applications such as the instant one and make orders as it deems fit.

As per Section 139(1) RTA, for a caveat to be valid, the caveator must have $[6]$ a caveatable interest, legal or equitable in the land. In Boyes Vs Gathure [1969] EA 385, it was held that;

"....a caveat is intended to serve a two-fold purpose: on the one hand, it is intended to give the caveator temporary protection, and on the other, it is intended to give notice of the nature of the claim to the person whose estate in the land is affected and to the world at large."

- This essentially means that caveats are not meant to subsist in perpetuity as they are intended to offer temporary protection to a claimant pending proving his/her claims and or disposal of their suits, if any. Therefore, it will be an injustice to just allow the Respondent to sit back and relax to the detriment of the Applicant who would want to transact in his land or has indicated a need to put the land to good use. - The Applicant in his affidavit stated that on the 3rd day of December 2020, $[7]$ caveats were lodged by the 1st Respondent under Instruments No. MAS -0004233 and No. MAS - 00004244 over both titles of the suit land

(annexture 'E'). That if the $1^{st}$ Respondent's claims were genuine, he would have filed a suit and/or claim in court and obtain an order forbidding the Applicant to deal in the suit land until court pronounces its decision over the same but there is no such claim or application before any competent court. The 1st Respondent in paragraph 18 of his affidavit in reply, states thus:

"In the year 2018, the $1st$ respondent filed Miscellaneous Application No57 Arising from Civil Suit No.07 of 2014, CS No.92 of 2012, CS No.038 of 2011 and CS No.052 of 2018 and the Application was dismissed without costs which led the Applicant to make an appeal for costs before the high court for determination either to pay or not."

Further in **paragraphs 19** he continues to state that;

"The 1st Respondent filed Civil suit against the Applicant of Which the Applicant failed to file his defence because of his frauds as mentioned above which led him to file a civil appeal No.041 of 2019 before High court."

From the above averments of both parties, it is apparent that it is now over $[8]$ 4 years since $3^{rd}$ December 2020 when the 1st Respondent lodged the caveats on the Applicant's land without following up the same by way of filing a claim in court for an order against the Applicant. The $1^{st}$ Respondent, in his affidavit in reply, talks about "a civil suit" that he filed where the Applicant failed to file a defence. However, there is no proof of such a civil suit on record as claimed by the $1^{\ensuremath{\text{st}}}$ Respondent. There is no evidence of the Civil Suits referred to above allegedly filed by the 1st Respondent. It is not enough to merely state that there are civil suits that were filed without attaching evidence of the same to the affidavit in reply. The available evidence on record is of the complaints lodged by the $1^{\mbox{\tiny st}}$ Respondent with various offices before lodging the caveats. It is my view, there is no claim whatsoever presented in court by the $1^{\rm st}$ Respondent from the time he lodged the caveats to date. As already discussed above, a caveat is a temporary protection pending proving of the caveator's claims. It therefore follows that the 1st Respondent, from the time he lodged the caveats ie. $3^{rd}$ December 2020, he has never filed any claim and or suit in court to prove his rights and/or claim in the suit land against the Applicant.

- From the foregoing, in the circumstances of this case, I find that the $1^{\mbox{\tiny st}}$ $[9]$ Respondent has not shown cause why he filed caveats on LRV 2119, Bugahya Block 16, Plot 435 and the land curved out of it. In the premises, I find that the caveats lapse and in the interests of justice, the same are vacated and/or removed to enable the Applicant who is registered proprietor of the suit land to deal with it as he pleases. - [10] In a nutshell, this Application is allowed with the following orders; - a) The Commissioner Land Registration directed to remove or vacate the caveats lodged by the $1^{\mbox{\tiny st}}$ Respondent on $3^{\mbox{\tiny rd}}$ day of December 2020 on land comprised in LRV 2119, Folio 17 land at Nyakaihura Kyabigambire Bugahya Block 16, Plot 435 and LRV MAS 3, Folio 22, Bugahya Block 16, Plot 434 land at Nyakaihura, Kyabigambire, Bugahya County, Hoima District that was curved out plot 435. - b) A permanent injunction is doth issue restraining the Respondents and any of their agents or persons drawing authority from or in relation to them from lodging any further caveats on the suit land. - c) No order as to costs.

Dated at Hoima this 10th day of February, 2025.

Byaruhanga Jesse Rugyema **IUDGE**