Mugume and Another v Abubakari (MISC. CAUSE NO. OO23 OF 2024) [2024] UGHC 1224 (20 January 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### **LAND DIVISION**

#### MISC. CAUSE NO. 0023 OF 2024

# 1. MUGUME JAZILLAH

# 2. NAMONO RITAH ::::::::::::::::::::::::::::::::::::

#### **VERSES**

# ABUBAKARI HADIJAH ::::::::::::::::::::::::::::::::::::

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

# **RULING**

- 1. The Applicants moved court by way of Notice of motion brought under Section 14 (1) of the RTA Cap 230, Section 98 Civil Procedure Act, Order 52 rule 2 1 and Order 32 Rule 1 and 2 SI -71-1 for; - a. An order that the Respondent's caveat vide Instrument No. KCCA- 00113808 December, 2023, lodged on the Applicants' land comprised in Kibuga Block 9 Plot 301 and 318 at Kagugube Kampala be vacated and /or struck out. - b. Costs of the Application be provided for. - 2. The grounds of the application are contained in the notice of motion and are supported by the affidavit deposed to by the $2^{nd}$ Applicant (Ms. Namono Ritah). That the Applicants averred that they are Administrators of the estate of the late Mugoya Kennedy vide Admin Cause No. 973/2020. That they are the registered proprietors of land comprised in Kibuga Block 9 Plots 301 and 318 at Kagugube as Administrators to the estate *(herein after called the suit property)*. That the Respondent with intention to purchase the suit land, entered into a deed of commitment with the 2nd Applicant wherein she agreed to deposit 10,000,000/- for the suit property in order for it to be put off the market and enable her carry out proper due diligence. That it was also agreed that she would make a full payment within 14 days from the date of execution of the deed or that the agreement would terminate in favour of the Applicants who would then refund the commitment fee. - 3. That Applicants also averred that the Respondent lodged a caveat on the suit property and has since failed to pay for the suit land. That when the 14 days lapsed, they refunded the commitment fee, but the Respondent's caveat is still subsisting. They desire that the same is removed and the Respondent condemned to costs.

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- 4. The Application is further supported by a copy ofletters of administration in relation to the above estate; a copy of a certificate of title registered in the names of Robert Mugoya; a copy of a commitment deed dated 1,3 /1,1,12023, a copy of funds transfer request form dated 19 /01,/2024, and a search statement showing a caveat lodged on land comprised in Kibuga Block 9 Plot 301. - 5. The 2,d Applicant filed a supplementary affidavit wherein she reiterated her earlier averments as contained in the affidavit in support. - 6. The Respondent did not File an affidavit in reply opposing the application. - 7. It is trite law that where certain facts are sworn to in an affidavit, the burden to deny them is on the other party, and if he does not they are presumed to have been accepted (Samwiri Massa versus Rose Achen [19781 HCB 297: and also in Makerere University Vs St. Mark Education Institute Ltd & Ors (7994) KALR 26). - B. In the case of Tororo District Administration vs Andalalapo Ltd (:rgg7) IV KALR 126,KaniaJ., held that where no affidavit in reply is filed, the contents in the affidavit in support are taken to be unchallenged and truthful, subject to whether they pass the test of evidence, cogency and probative value. Further reference is made to the decision in Ronald Kanshabe Vs Nyiro Joseph T/a Task Associate & Ors Misc. Application No. 170 /2022 cited by the Applicants' Counsel. - 9, Therefore, I find that the present application is uncontested. However, this does not relieve the Applicants of the burden of proving their case on the balance of probabilities. - L0. Representation; The Applicants were represented by Counsel Kakande Kenneth Paul and Counsel Muwonge Hakim from M/s Alaka & Co. Advocates. Counsel filed written submissions where they raised and argued the following issues: - i. Whether the Respondents have any sufficient grounds to maintain the caveot on the suit land? - ii. Whether there any remedies available?

- 11. Resolution; Issue l-: Whether the Respondents have any sufficient grounds to maintoin the caveat on the suit land? - 12. The Applicants' Counsel relied on Section l-80 ofthe Succession Act cap 162 and the case of Khalid Walusimbi Vs famil Kaaya [1993] 1 KALR 20 to submit that letters of administration vest in the administrators all rights and interest belonging to the intestate; and that the Applicants have a right to sue the Respondent to have her caveat removed. That Section 139 of the RTA(supra) provides for who may lodge a

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caveat and that the respondent is not a beneficiary but.just a prospective buyer with no reasonable cause for having lodged a caveat.

- 13. Counsel cited the case of Sentogo Produce Vs Coffee Farmers Ltd & Anor HCMC No. 690/99, which was cited in Hunter Investiments Ltd Vs Simon Lwanyaga & Anor HCMC No.34 /2Ol2,where it was held "thatfor a caveat to be valid, the caveotor must have protectable interests legal or equitable to be protected by the caveat otherwise the caveatwould be invalid. The Caveator should show cause why the caveat should not be removed, failure of which would result into an order for vacation of the caveots by this court". Counsel argued that the Respondent has no interest to protect in the suit property, and has not showed any legal cause why her caveat should not be removed. - 14. Counsel further cited the case of Rutungo Properties Ltd Vs Linda Harriet CACA No.61 of 2010 where Justice Hellen Obura held that in an application of this nature, the Respondent must prove that (1) he or she has sufficient grounds to maintain the caveaq [2J that he or she has brought an action timeously against the Applicant; and (3) that the balance of convenience lies in maintaining the caveat rather than its removal. On that basis, Counsel argued that the Respondent has not taken any steps against the Applicants to determine her rights on the suit land; and that she also chose to stay away when the Applicants sought the court's intervention of court, an indication that she has no interest and the caveat is notjustified.

- l5. According to 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. The Applicants' Counsel rightly submitted on this. Under Section 140 (1) of the RTA(supra), this court is vested with power in applications of this nature to make orders as it deems fit. The power includes making an order for the removal of a caveat where the caveator fails to show any cause why it should not be removed. - 1.6. Under the commitment deed Our"613rh /ll12 0 2 3, the Respondent had 14 days within which to make full payment of the purchase price of the suit property with the Applicants or else any agreement between the parties would terminate. This was not done, implying that the parties' agreement terminated. The Respondent lodged a caveat on land comprised in Kibuga Block 9 Plot 301 on the 20/12/2023 notwithstanding the termination of her agreement with the Applicants-according to a search statement attached as annexure A to the supplementary affidavit on record. - 17. Nevertheless, on the L9/01,/2024, the Applicants refunded the Respondent's commitment fee of 10,000,000/- on her Account No. 1012202506862 in the names of Cisse Abubakari Hadi.iah see annexure 'D' attached to the affidavit in support by Namono Ritah hence discharging themselves from any liability to her. However, the

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Respondent's caveat is still subsisting on the suit property despite the non-existence of any action by her against the Applicants.

- 18.1n the circumstances, I find no sufficient grounds to maintain the caveat in question; and the balance of convenience lies in favour of ordering its removal. - 19. It suffices to note that the Applicants did not lead any evidence in relation to land comprised in Kibuga Block 9 plot 3 18 land at Kagugube.

ln conclusion, therefore, the first issue is answered in the affirmative but only in respect ofland comprised in Kibuga Block 9 plot 301 land at Kagugube.

# Remedies

- 20. Counsel relied on Section 142 of the Registration of Titles Act which provides that any person lodging a caveat without reasonable cause shall be liable to any person who may have sustained damage in form of compensation. - 2L. Counsel argued that the suit property was on market for the benefit of the beneficiaries who have since got stuck on account ofthe caveat. He therefore prayed for 70,000,000/- (seventy Millions) as compensation, and costs under Section 27 of the Civil Procedure Act. - 22.1n Ali Sidi Ngarukiye Vs Muyonga Andrew Mubiru M. A Cause no.0031/2018, in which Nakachwa i, observed that any person who lodges a caveat unreasonably or maintains itwhen it is no longer necessary to do so is liable to pay damages sustained by any oth er person. - 23.1n this case, the Court found no reasonable cause as to why the Respondent maintained a caveat on the suit land under Plot 301 Block 9. [n Namono's supplementary affidavit averred that the caveat has prevented the Administrators form distributing the estate property and the applicants had to lodge this application in court I find this litigation would have been avoided. Therefore, the Respondent is Iiable to pay damages for the inconveniences caused to the applicants, as well as costs of the suit as stated hereunder. - 24. The application succeeds with the following orders; - 1. That the Commissioner Land Registration is hereby directed to vacate the Respondent's caveat on lodged 2Oth /72/2023 on land comprised in Kibuga Block 9 Plot 301" Kagugube - Kampala District. - 2. That the Respondent shall pay damages in a sum of 3,000,000/- for maintaining a caveat on the above land without reasonable cause.

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3. The Respondent shall pay the costs of the Application.

$\pm 2024$ Signed, dated and delivered at Kampala this... $\frac{1}{\cdots}$ day of ........

Nabakooza Flavia/K Judge