Nabongho v Kibubuka & Another (Miscellaneous Cause 20 of 2024) [2025] UGHC 23 (20 January 2025)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT IGANGA

### **MISCELLANEOUS CAUSE NO. 020 OF 2024**

#### NABONGHO CHARLES ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

1. HENRY KIBUBUKA DAUDI

2. COMMISSIONER LAND REGISTRATION:::::::::::::::::::::::::::::::::::: **BEFORE: HON. MR. JUSTICE BATEMA N. D. A, JUDGE**

#### **RULING**

### **Introduction**

This is a ruling on an application for removal of a caveat from a land title brought by Notice of Motion under Section 33 of the Judicature Act Cap 16, Section 98 of the CPA Cap. 282, Orders 52 Rules 1 and 3 of the Civil Procedure Rules. The Applicant, Nabongho Charles sought orders that;

- 1. The caveat lodged by the Respondent on land comprised in Kiteigalwa, - Block 6 Plot 141, Bukooli land at Bugiri District belonging to the Applicant be vacated. - 2. Costs of the Application.

The grounds of the application are briefly found in the Notice of Motion and amplified by an affidavit in support of the application sworn by the Applicant. I do not intend to reproduce the grounds but will highlight their gist.

## **Background**

The Applicant, Nabongho Charles averred that he is the registered proprietor and owner of land comprised in Bukooli Block 6 Plot 141 land at Kiteigalwa, Bugiri District having purchased the same from a one Muwaaya Ibrahim in 2020. The Applicant further avers that he has been cultivating and utilizing the said land since its purchase by growing sugar canes, maize and other projects like fish

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farming. That however, the 1<sup>st</sup> Respondent, Henry Kibubuka Daudi without any justiciable claim lodged a caveat on the land title on $22^{\tiny{\text{nd}}}$ August 2024 and the same was effected and registered by the $2^{\ensuremath{\mathsf{nd}}}$ Respondent, Commissioner Land Registration under Instrument No. JJA 0004873. The Applicant avers that although the 1<sup>st</sup> Respondent claims ownership of the said land by virtue of being the hereditary chief royal of Bukooli Chiefdom, he has neither been appointed nor gazetted as such.

On the other hand, the 1<sup>st</sup> Respondent claims that the suit land is part of the royal estate Bukooli chiefdom, a traditional institution. That a one Muwaya Salim who was a caretaker of the chiefdom land had no right to sale the said land to the Applicant. The 1<sup>st</sup> Respondent also avers that the purpose of a caveat is to protect the interest of Bukooli chiefdom. That being the hereditary royal chief by virtue of the decree in Civil Suit No. 07 of 2017, at Bugiri Chief Magistrates court his mandated to lodge a caveat protecting the royal estate.

# **Issues for determination**

I find the $1^{st}$ issue as framed by both parties in their written submissions much more of a remedy than an issue. I therefore have rephrased the same as follows;

1. Whether the 1<sup>st</sup> Respondent had legal capacity to lodge a caveat on the land title in question

2. Remedies available to the parties.

## **Resolution**

1. Whether the 1<sup>st</sup> Respondent had legal capacity to lodge a caveat on the land title in question

The thrust of the Applicant's submission is that the 1<sup>st</sup> Respondent had no right or claim whatsoever to lodge a caveat on the land belonging to the applicant in the capacity of the hereditary ruler of the Bukooli chiefdom. That the $1^{st}$ Respondent has never been appointed as a hereditary ruler of the Bukooli Chiefdom and worse still, there is no recognized cultural institution called



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Bukooli Chiefdom since the same has never been gazette pursuant to Section 6 of the Institution of Traditional and Cultural Leaders Act No. 6 of 2011.

In rebuttal, the 1<sup>st</sup> Respondent submits that he is the lawfully appointed hereditary royal chief of Bukooli Chiefdom by virtue of the decree in Civil Suit No. 07 of 2017 and therefore has a caveatable interest in the property which belongs to the Bukooli Chiefdom.

I have carefully considered the submissions of both counsel and wish to note that the law on caveats is now provided for under Part VII of the Registration of Titles Act Cap 240.

Section 123 (1) of the Registration of Titles Act provides that;

- "Any beneficiary or other person claiming any estate or interest in land 70 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 schedule 13 to this Act or as near to that as circumstances permit, forbidding the registration 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." - The crux of this application as I understand it, is in what capacity did the $1^{\rm st}$ 80 Respondent lodge this caveat? In paragraph 9 (a) of his affidavit in reply, the 1<sup>st</sup> Respondent averred that he is acting in the capacity of the rightful hereditary royal chief of Bukooli Chiefdom.

In my humble opinion, whether the 1<sup>st</sup> Respondent is the rightful traditional leader of Bukooli chiefdom or not is not the issue. My first concern is whether Bukooli Chiefdom is a recognized legal and traditional entity with capacity to sue or be sued. My view is that the Applicant did not have locus standi to lodge this

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caveat. Until the Chiefdom is recognized and gazetted by the Government of Uganda, it lacks capacity to sue or be sued. No one can act in its name or be sued under its name as a royal chief of that unrecognized traditional chiefdom.

Court takes judicial notice that Obwa Kyabazinga bwa Busoga is the only recognized and gazetted traditional institution in Busoga sub region. Obwa Kyabazinga bwa Busoga has capacity to sue or be sued. The chiefdoms in Busoga are not independent of Obwa Kyabazinga bwa Busoga. They are part and parcel of the internal organization and structure of Obwa Kyabazinga bwa Busoga (Busoga Kingdom).

It is Obwa Kyabazinga bwa Busoga which can sue on behalf of the chiefdoms or hold land in trust for the chiefdoms. The royal chiefs in the chiefdoms may only hold powers of attorney to represent the Kyabazinga of Busoga in such cases.

Likewise, the nomination, election, confirmation and appointment of traditional 100 and cultural leaders must conform to the provisions of Section 3 of the Institution of Traditional and Cultural Leaders Act Cap 242.

Section 3 provides;

- (1) A Traditional or cultural leader may be instituted in the following ways- - (a)In accordance with the culture, customs and traditions of the people to whom it applies; or - (b)In accordance with the wishes and aspirations of the people to whom it applies, through a resolution of not less than two-thirds of all members of the district local councils and sub county local government councils respectively in the area.

(2) The institution under subsection (1) shall be communicated in *writing to the Minister.*

There is no evidence on court record that Bukooli Chiefdom went through this process. Worse still there is no evidence to prove that the 1<sup>st</sup> Respondent is a

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traditional leader recognized in compliance with Section 5 of the Institution of Traditional and Cultural Leaders Act, which provides for the publication of such leadership.

# Section 5 provides;

Where a traditional or cultural leader has been declared to exist in any area 120 of Uganda in accordance with the culture, customs and traditions or wishes and aspirations of the people, the Minister shall cause the declaration to be published in the Gazette.

In resolving the first issue, I want to clearly and emphatically state, that I strongly believe that the $1^{\ensuremath{\text{st}}}$ Respondent lacks legal capacity to act as a traditional leader on behalf of Bukooli Chiefdom which is not legally recognized as a traditional institution under the Institution of Traditional and Cultural Leaders Act.

# Issue 2

# **Remedies Available?**

- 1. The illegal caveat lodged by the $1^{st}$ Respondent shall be vacated. The $2^{nd}$ 130 Respondent is therefore ordered to vacate the caveat placed on land title comprised in Bukooli Block 6 Plot 141 land at Kiteigalwa, Bugiri District by Henry Kibubuka Daudi. - 2. The Applicant is awarded costs of this application.

I so order in the interest of justice.

**BATFMA N. JUDGE** 20/01/2025