Musoke v Kasozi & Another (Miscellaneous Cause 23 of 2023) [2024] UGHC 462 (5 June 2024)

## **THE REPUBLIC OF UGANDA**

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

#### **MA NO. HCT-17-LD-MC-0023- 2023**

# **MUSOKE JONATHAN (Executor of the Estate of the Late Edith Namubiru) …………………………. APPLICANT VERSUS**

- **1. KASOZI FRANK** - **2. THE REGISTRAR OF TITLES (BUKALASA ZONAL OFFICES)** - **3. COMMISSIONER LAND REGISTRATION…………….. RESPONDENTS**

# **BEFORE LADY JUSTICE HENRIETTA WOLAYO**

# **RULING ON A MOTION TO REMOVE OF A CAVEAT**

#### Introduction

- 1. By a notice of motion dated 16.07.2023, the applicant moved court under Sections 140, 145 and 188 of the Registration of Titles Act Cap.230 , Section 98 of the Civil Procedure Act, Order 52 rule 1 of the Civil Procedure Rules for orders that: - a) The respondents show cause why caveat lodged on land comprised in Bulemezi Block 161 Plot 48 land situate at Bukolwa should not be vacated and removed. - b) An order directing the second and third respondents to remove and or vacate a caveat lodged on land comprised in Bulemezi Block 161 Plot 48 land at Bukolwa. - c) Costs of this application be provided for.

- 2. The grounds in support of this application are contained in the affidavit of Musoke Jonathan, the applicant. None of the respondents filed affidavits in reply. - 3. When the matter came up for hearing on 4.12.2023, the first respondent Kasozi Frank was absent but Ms Nakasagga Bernadine for the second respondent (Registrar of Titles Bukalasa) and third respondent (Commissioner Land Registration) was in attendance. Counsel Mubadde Derrick for the applicant was in attendance and so was the applicant. - 4. Counsel Nakasadda undertook to file her affidavit in reply within one week. In the meantime, the case was adjourned to enable fresh service on the first respondent Kasozi. - 5. On 12.3.24, Counsel Kibirango Erasto appeared for the first Respondent Kasozi while counsel for the second and third respondents was absent. Counsel Mubadde Derrick for the applicant was in attendance. - 6. Counsel Kibirango informed court that he had filed a suit against the applicant Jonathan Musoke and prayed for time to file an affidavit in reply. Consequently, I gave the respondents until 9.4.2024 to file their affidavits in reply. I also directed counsel for the applicant to file written submissions by 23.4.2024 and the respondents by 7.5.2024. The applicant was to file a rejoinder if any by 14.5.2024. As I write this

Ruling, only the applicant has complied with directions to file submissions. None of the respondents have filed affidavits in reply.

7. Regarding proof of service on the first respondent Kasozi, the fact that his lawyer counsel Kibirango appeared for him on 12.3.2024 is proof that he was served with both the motion itself and with a hearing notice for this date. Furthermore, the affidavit of service of Onen Robert of the Chief Magistrate's Court Luwero shows that he effected service on Frank Kasozi on 6.3.2024 and took a picture of the service on Kasozi which he attached to the return of service.

#### Background facts

- 8. The applicant Musoke Jonathan is the executor of the estate of the late Edith Namubiru Musoke having been granted probate on 5.07.2022 by Hon. Justice Matovu in **HCT-00-FD-AC-661-2022**. The late Namubiru was registered on the certificate of title for **Bulemezi Block 161 Plot 48 land at Bukolwa** on 6.4.2004 as administrator of the estate of late Naome Nalwoga under instrument No. BUK58343. The land measures approximately 4.0500 hectares. - 9. In other words, the applicant is holds probate only for the estate of late Edith Namubiru but does not have authority over the rest of the estate of late Nalwoga Naome. - 10. On 7.4.2021, the first respondent Kasozi Frank lodged a caveat under Instrument No. **LUW-00011888** on the said certificate of title, whereupon, the applicant applied to the Registrar of Titles at Bukalasa

Land Zonal offices to have the caveat removed. On issuance of a notice by the Registrar of Titles to Kasozi to remove his caveat, the latter moved court at the Magistrate Court at Wobulenzi wherein he obtained an order staying the lapsing of the said caveat.

11. The applicant successfully moved the Family Division and the said order was reviewed and set aside for lack of jurisdiction and an error apparent on record hence this application to remove the caveat.

#### 12. Resolution of the case

13. **Section 139(1) of the Registration of Titles Act Cap. 230** permits any beneficiary or other person claiming an estate or interest in land to lodge a caveat with the registrar of titles forbidding the registration of any person as transferee or proprietor of and of any instrument affecting that estate or interest without notice to the caveator.

#### Applicant's case

- 14. Counsel for the applicant submitted that the first respondent is not a beneficiary since nothing was bequeathed to him by the late Naome Nalwoga and as such he has no legal or equitable protectable interest that can be protected by the said caveat. - 15. Counsel further submitted that allowing the caveat to remain on the suit land is detrimental to the applicant and hinders him from exercising his duties as an executor of the said estate including distribution of the estate to the beneficiaries. Furthermore, that the failure by the

respondents to file a reply to this application shows that they have not shown cause as to why the caveat lodged on 7.4.2021, should not lapse.

- 16. The applicant deposed in his affidavit that the late Naome Nalwoga being the registered proprietor of the suit land measuring 10 acres had bequeathed four acres forming part of the suit to the late Edith Namubiru whom she had appointed the heir and was eventually appointed administrator of the estate of the late Naome Nalwoga. And that the late Edith Namubiru together with the applicant developed the four acres thereby setting up their residential home, commercial houses and carried out farming. Evidently, the applicant administers only these four acres that were bequeathed to late Edith Namubiru by Naome Nalwoga. - 17. It was brought to my attention that there is a pending suit filed by the first respondent and a one Namutebi Sarah against the applicant vide **HCT-17-LD-CS-0247-2023** wherein they claim to be beneficiaries of the estate of the late Naome Nalwoga. They further complain that the applicant Musoke got probate and is threatening to administer the entire 10 acre estate of late Nalwoga. Worthy of note is that the plaintiffs including Kasozi Frank the instant respondent acknowledges that the late Nalwoga bequeathed four acres to late Namubiru Edith for whom Musoke got letters of probate for her *will* dated 18.4.1993 . The plaintiffs want the court to appoint an administrator for the residue of the estate of which four acres was bequeathed to Kasokabogera's family and two acres to burial grounds.

Stay of suit under Section 6 of the CPA

18. Section 6 of the Civil Procedure Act Cap. 71 bars the court from entertaining a dispute where the same parties and facts are in issue in a previously instituted suit. I reproduce Section 6 below:

> *'No court shall proceed with the trial of any suit or proceeding in which the matter in issue is also directly or substantially in a previously instituted suit or proceeding between the same parties…where the suit is pending in the same or any other court having jurisdiction in Uganda to grant the relief claimed.'*

- 19. The instant application was filed on 4.7.2023 while the Plaint in Civil Suit 247 of 2023 was filed on 24.7.2023. Evidently, the latter suit is caught by Section 6 of the CPA which means I shall determine the dispute based on the earlier suit which is this application. - 20. In **Rutungu Properties Limited v Carrington & Another (Civil Appeal No. 61 of 2010) [2019] UGCA 2026 (21 November 2019) at Pages 8 -9,** court held;

*"…a caveat is similar to an interlocutory injunction as it only gives temporary protection of interest… a caveatee must prove that he holds an interest and an unfettered right to deal with the suit land as he may please.*

*On the other hand, the caveator must prove the existence of the following;*

*a) The caveator has sufficient grounds to maintain the caveat*

- *b) The caveator has brought an ordinary action timeously against the caveatee.* - *c) The balance of convenience lies in maintaining the caveat rather than its removal."* - 21. As the first respondent Kasozi did not file an affidavit in reply to demonstrate sufficient cause not to remove the caveat and as the applicant has demonstrated that he has a legitimate interest in part of Bulemezi Block 161 Plot 48, the caveat lodged on 7.4.2021 by Kasozi shall be removed.

### Remedies

- 22. The applicant Musoke concedes in his affidavit in support that his late wife Namubiru was bequeathed four acres on Bulemezi Block 16 Plot 48 by late Naome Nalwoga and the couple had fully developed these four acres. As the land has a total acreage of 4.0500 hectares (approximately ten acres), the Registrar of Titles will cause registration of only these four acres to the applicant. - 23. The remaining six acres will remain under a preservation order until the family of late Naome Nalwoga obtain letters of administration to implement her wishes.

#### Orders

a. To pave way for implementation of the following orders, the Registrar of Titles will vacate the caveat lodged by the first respondent Frank Kasozi under Instrument No. LUW-00011888 on 7.4.2021.

- b. The applicant shall survey the four acres that form the estate of late Namubiru Edith which the Registrar of Titles will mutate off Block 161 Plot 48 to create a title for the applicant Jonathan Musoke as holder of letters of probate for the estate of Namubiru Edith. - c. A preservation order is hereby issued preserving the residue of the six acres until the natal family of late Nalwoga Naome obtain letters of administration to put into effect her wishes. - d. The applicant will bear the costs of this application.

# **DATED AT LUWERO THIS 5TH DAY OF JUNE 2024. \_\_\_\_\_\_\_\_\_\_\_\_\_**

# **LADY JUSTICE HENRIETTA WOLAYO**

Legal Representation

M/s Kakona & Kwotek Advocates for the applicant Kibirango & Co. Advocates for the respondent