Mutyaba and 2 Others v Kayondo (Misc Cause No. 103 of 2022) [2022] UGHCLD 224 (30 November 2022)

#### THE REPUBLIC OF UGANDA

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

#### (LAND DIVISION)

#### **MISCELLANEOUS CAUSE NO. 103 OF 2022**

#### $\mathsf{S}$ 1. MUTYABA MOHAMMAD

2. SEMWOGERERE HAMUZA

3. KATENDE YUSUF

(Administrators of the Estate of the Late AHMADA KYABASINGA)::::::::::::::::::::::::::::::::::::

#### **VERSUS**

<table>

KAYONDO NASSIWA JANAT:::::::::::::::::::::::::::::::::::

Before: Lady Justice Alexandra Nkonge Rugadya.

#### Ruling.

This application was brought by notice of motion under the provisions of **Section 33 of the**

#### 15 Judicature Act cap. 13, Section 98 of the Civil Procedure Act cap. 71, Sections 140 (1), 142, 145, & 188 of the Registration of Titles Act cap.230 and Order 52 rules 1, 2, & 3 of the Civil Procedure Rules SI 71-1.

It seeks orders that the respondent shows cause why the caveat lodged on the applicant's land comprised in **Busiro Block 239 plot 18 land at Sanda Wakiso District** should not be vacated. It further seeks that the Commissioner Land Registration/Registrar of Titles Wakiso Zonal office removes the caveat from the register, and that the respondent pays damages, and costs of the application.

#### Grounds of the application.

The application is based on grounds contained in the affidavit in support of Mr. Katende 25 Yusuf, the $3<sup>rd</sup>$ (third) applicant. He stated that the applicants are the registered proprietors of land comprised in **Busiro Block 239 plot 18 land at Sanda Wakiso District, measuring approximately 3.0400 hectares** (hereinafter referred to as the 'suit land') in their capacity as the administrators of the late Ahmada Kyabasinga.

That on $10^{th}$ May, 2022, the respondent claiming to be the registered proprietor of the same 30 having purchased it from NPART, lodged a caveat vide *instrument number WBU-00319806*. During his lifetime, the late Ahmada Kyabasinga never mortgaged the suit land to any financial institution as alleged by the applicant, nor has there ever been any mortgage deed registered on the white page as an encumbrance. That the deceased has never been part of

On fairs

any legal proceedings touching the suit land in any court or tribunal as alleged by the respondent.

That contrary to thc respondent's averments in hcr affidavit, thc respondent has never been in possession of the suit land, since thc applicants are the ones in possession of the land which has a tenant, and that the respondent had no lawful cause or otherwise to lodge the caveat in issue as she has no intcrest whatsoever therein.

That since January, 2022, when the applicant alleges to have discovered that the applicants are the registered proprietors of the suit land, she has never taken any steps to challenge their proprietorship in courts of law but rather lodged the caveat in issue which has not only inconvenienced but also inflicted psychological torturc on them, and that various demands

In addition, that becausc the respondent docs not have any caveatable interest in the suit land, the continued stay of the said encumbrancc is unlawful and as such the caveat was lodged illegally. Thc rcspondcnt should in thc circumstances show why the same should not

bc vacatcd by the Commissioner Land Registration and thc applicants compcnsatcd for the inconveniencc caused; and costs of the application. 15

for the removal of the said caveat have not been heeded by the respondent.

#### Replg ba the tespond.ent:

The respondent opposed the application through hcr affidavit in reply wherein she statcd tnter alia that the instant application is not only misconceived but is also a blatant abuse of court process and that the applicants arc forum shopping because the application raises pertinent issues that can only bc disposed of by way of an ordinary suit.

That she is the lawful owner of the suit land having purchased the Assets Recovery Trust (NPART) pursuant to an cxccution ordcr Tribunal Cdse No.27 ot: 7997. Upon purchasing thc land on 25u she registered as the proprictor thcreof vide instntment no. immediately took possession thereof. samc for Non-Performing for sale of thc same in July, 20O5, not only was KLA 277675 shc also

That the affidavit in support of thc application is tainted with falsehoods owing to the fact that the applicant's acquisition of the spccial certificate of title and entry of their names on the register as the registercd proprietors thcreof was not only unlawful but also a total abuse

30 of her right as the lawfully registered proprietor of the suit land.

That while the applicants allege that they are the administrators of the estate of the late Ahmad Kyabasinga, the said grant was obtained in 2016, while the respondent had already been registered as proprietor as at 25th July, 2OO3, hence the applicants lack the requisite knowledge ofwhat transpired between NPART and the late Kyabasinga or the respondent and 35 NPART.

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The respondent's claim is that in 1996, the late Ahmad Kyabasinga mortgaged the suit land to Uganda Commercial Bank and the same was registercd on 27th August, 1996 and that while the respondent has at all times becn in possession of the suit property together with the tenants thereon, the applicants having been rcgistercd as the proprietors of the suit land

on 31"t March, 2022 are precluded from claiming posscssion thercof or being in control of the tcnants in occupation thcreof and that it is the respondcnt's right to lodgc thc caveat in her capacity as the lawful owner of the land.

That on Sth August, 2022, the respondent was invited to a fact-finding meeting by a one Ms. Namutebi Veronica, a Registrar of Titles at the Busiro MZO who confirmed that the special certificate of title in thc applicant's namcs was issued in error and that it is against this background that she halted her lawyers from filing the case, pending the Registrar's intended action to rectify the error by September, 2022.

In addition, the respondent averred that she lodged the caveat to protect her interest thereln and that if the same is vacated by this court, her interests therein will be prejudiced and that

it would be contrary to the principles of natural justice to order the Commissioner Land Registration who is not a party to the suit to vacate the caveat. 15

Further, that removal of the cavcat shall occasion a miscarriage ofjustice to the respondent and that instead of vacating the caveat, the matter regarding ownership of the suit land should be determined by way of ordinary suit.

# 20 kiet4der.

ln a rejoinder by the applicants, it was averred that the application is not only meritorious but also propcrly before this court as the same is based on facts supported by evidence and the law, which this court can easily disposc of.

25 That the respondent has no interest whatsoever in the suit land as the certificate of title is not only in their possession but also in their namcs as thc registered proprietors as the administrators of the estate of the late Ahmada Kyabasinga as indicated in the registry rccords, and that thc deceased was not a party to eithcr the transaction between NPART, or the alleged Trlbunal Ccse AIo. 27 of 7997.

30 That the statutory declaration attached to the afhdavit in reply marked Ann€xuze 'D' which was made after filing this application is inconsequential since the same does not cure the defects in respect of the differences in the name of the caveator on the certificate of title, and that the respondent has never been the registcred proprietor, or in possession of the suit land.

The applicants further dcnied the allegations that the affidavit in support of the application contains falsehoods as evidenced by thc record from the land registry, as well as the certificate of title which is not only in their possession but, was also legally obtained in their names and 35

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capacity as thc administrators of thc latc Ahmada Kyabasinga, and that therc has been no infringcment on the respondent's rights sincc shc has no intcrest in the land.

That while the respondent allegcs that she was registercd as the proprietor of the suit land on 25s July 2003, there is no evidence of a purchase agreement or the late Ahmada Kyabasinga's dealings with NPART, from whom she claims to have purchased, nor is there any evidence of the alleged mortgagc in the form of a mortgage deed or agreement linking the deceased and NPART.

They also refuted the respondent's claim ofpossession ofthe suit land and caveatable interest and contended that there was no justifiable reason whatsoever for lodging thc caveat in January, 2Q22 and failing to take any action.

I.urther, that the alleged invitation by the llegistrar of titles is not attached and that the contents of paragraph-s I5 & i6 of the affidavit in rcply contain falsehoods with no evidence of the allegations therein.

That the principles of natural justice have been well applicd in the instant application against the respondent who falscly claims an interest in the suit land. Thc Commissioner Land Registration's role in this application was only to implement the orders of court. 15

#### Representqtion.

Thc applicants were represcntcd by M/s Verus Adaocdtes, while thc respondent was represented by M/s Ndmbirige & Co. Adttocdtes. Both counscl filed writtcn submissions in support of their respectivc clients'cases as directed by this court.

### Issue s for d.ete"minatlon

Counscl in thcir writtcn submissions raiscd thc following issucs for detcrmination by this court;

# 7. Whether the caaeator/respondent hcs a caaeatable lnterest ln the sult land;

# 2. Whether the "eliels sought cd,r be granted.

## Besa,lution b! court.

I have carefully read and takcn into account the pleadings, evidence, and submissions ofboth counsel, the details of which arc on thc court rccord.

# Issue No,-Ii Whether the cqueator/respondcnt has a cqaeqtable interest in the suit 30 land.

I.or a cavcat to bc valid, thc cavcator must havc a protcctablc intcrcst lcgal or cquitablc to be protcctcd by thc cavcat othcrwisc the cavcat would bc invalid. (Sentongo Produce V Coffee Farmers Limlted & Anor us Rose Nako,fuma Mugiisa HCMC 690/99).

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$\mathbb{R} \times \mathbb{R}$ $\mathcal{D} = \mathcal{D}$ $\mathcal{A} = \{ \mathcal{A} \mid \mathcal{A} \in \mathcal{A} \}$

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A cavcatable interest is a proprietary intercst in land rather than a mere personal right in relation to the land or against the owner of the land.

In the instant case, both the applicants and thc rcspondent claim ownership of the suit land. The applicants on thc one hand claim ownership of the land in thcir capacity as the

administrators of the late Ahmada Kyabasinga thc original owner, while on the other hand the respondent claims to have purchased the suit land from NPART in the execution of an order of sale in Tfrbunal Cose No.27 of 7997.

Under section 59 of the Registrdtlon ol Titles Act, a certificate of title is conclusrve evidence of ownership by the person named in thc Title as proprietor, with power to dispose of the land described therein. The only exception is upon proof of fraud; as dictated under section 776 lC) of the RTA.

ln the case of John Katarika.ure U.ersl,ls Wtlltdm Katurlremu (1977) ECB I87, it was held that once a person is registcrcd as a proprietor of land his title is indefeasible, except for fra ud.

- Thc applicants in thc instant casc posscss a spccial ccrtificatc of titlc of the suit land whereon they were registercd as the proprietors of thc suit land in their capacities as thc administrators of the estate of the late Ahmada Kyabasinga under instmment no. WBUOO375746 on 3l\*t March, 2022 at 11i22 am. (Reler to Annexure'82' ofthe affidavtt l^ support of the applicatlon). 15 - The respondent claims to have purchased the suit land from NI'ART, and that she was registered as thc proprietor of the suit land on 25rh July, 2OO5. To this end she presented a copy of the execution order as wcll as the notification of sale marked artttexure 'A' & 'B',lo prove the said sale and a copy of the original duplicate certificate of title of the suit land marked Annexure 'E' whereon she was registcred as proprietor under instrument no. KLA 277675 on 271h July 2005 at 3:48 pm. 20 25

ln addition, the respondent also adduced a copy of the transfcr form marked Annexure'C' to support her claim that she lawfully acquired and procurcd the transfer of thc suit land into her name.

#### Decision of court:

The question before court is for the determination of which of the two certificates was valid and which is to bc cancelled, as the two cannot co-cxist. Court under those circumstanccs has to play an investigatory role to understand how thc two titles had been created over the same piece of land, issued to two differcnt owners and indccd how each side had acquired ownership/ possession of the suit property. 30


Court is also required to decide whether or not the late Ahmada Kyabasinga was involved as claimed, in any transaction with NPART, or Tribunal Case No.21 of 1997.

Where fraud is alluded to as in this case which would require cancellation of a title, the evidence presented from either side has to be test to verify its truthfulness. This can only be done through a proper and full trial, not through an application and affidavit evidence.

I would accordingly dismiss this application with costs, and direct that the matters be raised under a formal suit.

I so order.

$\mathsf{S}$

Alexandra Nkonge Rugadya

**Judge**

15 30<sup>th</sup> November, 2022.

Delivered Grewail<br>Delivered Grewail<br>Belong<br>Sol: 12022

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