Mbaguta v Nkugwa and Others (Miscellaneous Cause 167 of 2021) [2023] UGHCLD 462 (13 August 2023)

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

**(LAND DIVISION)**

#### **MISCELLANEOUS CAUSE NO. 167 OF 2021**

# **MBAGUTA INNOCENT TWEBAZE--------------------------------------------------- APPLICANT (Suing through his lawful Attorney Kyeyune Ronald)**

**V**

- **1. NKUGWA ROSE** - 10 **2. LUYIMA SAMUEL SEITH** - **3. BAZZE FRED** - **4. REGISTRAR OF TITLES---------------------------------------------------------RESPONDENTS**

# **Before: Hon. Lady Justice Olive Kazaarwe Mukwaya**

## 15 **RULING**

The Applicant, Mbaguta Innocent Twebaze brought this motion through his Lawful Attorney Kyeyune Ronald under section 145 of the Registration of Titles Act Cap 230, sections 26 and 270 of the Succession Act Cap 162, section 33 of the Judicature Act Cap 13, section 98 of the Civil Procedure Act Cap 71 and Order 52 rule 1 and 3 of the Civil 20 Procedure Rules and seeking orders that;

- 1. The caveat lodged by Nkugwa Rose of P. O Box 16535, Kampala, Luyima Samuel Seith of P. O Box 16535, Kampala and Bazze Fred of P. O Box 16535 on the Applicant's certificate of title for the land comprised in Busiro Block 382 Plot 405 at Nalubudde, Wakiso District on 22nd March 2019 under instrument No. WAK-00212834 be removed with immediate effect by the 4th 25 Respondent. - 2. Costs of this application be provided for.

#### **Grounds for the Application**

and marked E.

Mr. Mbaguta Innocent Twebaze, the Applicant averred that he is the registered proprietor of the land comprised in Busiro Block 382 Plot 405 at Nalubudde, Wakiso District measuring approximately 0.4050 Hectares. A copy of the land title was attached and marked B. Through his lawyers then of M/s United Advocates, on 22nd 5 August 2019 he conducted a search on the land which revealed that a caveat was lodged thereon by the 1 st to 3rd Respondents on 22nd March 2019 as per a copy of the search statement which was attached and marked C. Subsequently, his lawyers wrote to the caveators to remove their caveat through their lawyers of M/s Nshimye & Co. Advocates however the letter 10 was declined and no action was taken. A copy of the letter was attached and marked D.

On various dates of 16th August 2019 and 22nd February 2021, through his then lawyers and his current lawyers, the Applicant applied to the office of the Registrar of Titles Wakiso to issue notices to the 1 st to 3rd Respondents to show cause why their caveat should not be removed. However, the 4th Respondent's office did not take any action. The Applicant was then advised to apply to the High Court for an order directing the 4th 15 Respondent to remove the impugned caveat from his land. Copies of the application letter was attached

Mr. Mbaguta averred that none of the caveators have ever approached him to prove their alleged claim on the land yet he has been and continues to be in physical possession with a garden, house and buildings on the land since 1st 20 July 2015 as per the copies of photographs attached and jointly marked F. He further asserted that the caveat of the 1st to 3rd Respondents has been registered on the subject land for more than 3 years but the caveators have never formally challenged his land title, nor sued him in any Court of law to challenge his ownership. He added that he is a bonafide purchaser for value without 25 notice whose interest is protected by law and that he had no notice of the land dispute between the caveators, Buwembo Fred and Bernand Tungwako. He went on to explain that their dispute which also involves other beneficiaries of the estate of the late Seezi Balimunsi Mubiru arose 3 years after he had already bought and settled on the subject land in July 2015. He thus prayed that the caveat should be vacated.

The Respondents did not file a response nor appear despite being effectively served therefore this matter proceeded ex parte.

### **Issue**

# 5 **Whether the Applicant has established sufficient grounds for the vacation the caveat?**

#### **Section 139 (1) of the Registration of Titles Act Cap 230** provides;

*139. Caveat may be lodged and withdrawn.*

*Any beneficiary or other person claiming any estate or interest in land under the operation of this Act or in any lease or mortgage under any unregistered instrument or by devolution in law or otherwise may lodge a caveat with the registrar in the form in the Fifteenth Schedule to this Act or as near to that as circumstances permit, forbidding the registration* 15 *of any person as transferee or proprietor of and of any instrument affecting that estate or interest until after notice of the intended registration or dealing is given to the caveator, or unless the instrument is expressed to be subject to the claim of the caveator as is required in the caveat, or unless the caveator consents in writing to the registration.*

20 Finding the documentation before me relating to the caveat insufficient, I directed the Office of the Commissioner Land Registration to avail this court, certified copies of all documents related to the caveat complained of; to wit pertaining to land comprised in Busiro Block 382 Plot 405. What was availed were documents related to Plot 968, Busiro Block 274 and a letter complaining about the illegal removal of caveats brought by the advocates of the 2nd and 3rd 25 Respondents which listed numerous Plots including the suit land. Part of the complaint was information that the 1st Respondent, Ms. Nkugwa Rose had died on the 5th December 2021. A copy of her death certificate was attached.

The Applicant did not attach proof of purchase of the suit land, although he claimed he 30 was a bona fide purchaser for value without notice of fraud. This matter proceeded ex parte against the Respondents. And now it is apparent that the 1st Respondent is deceased and there is evidence that there has been an earlier attempt to illegally vacate the caveats on the suit land among numerous other Plots which the Respondents claim an interest, as beneficiaries of the estate of the late Balimunsi Ssezi Mubiru.

- 5 In light of these facts, I find this application untenable. Let the Applicant file an ordinary suit to establish his claim against the Respondents and have the caveat vacated. There are several facts that require interrogation regarding the Applicant's acquisition of the suit land and the Respondents' parallel claim therein. - 10 **In conclusion, for reasons foregoing, this application is dismissed with no order as to costs.**

……………………………….. **Olive Kazaarwe Mukwaya**

**JUDGE**

**13 th August 2023**

20 **Delivered by email to Counsel for the Applicant.**