Nabunjo v Kirudde (Miscellaneous Application 35 of 2021) [2023] UGHCLD 208 (18 July 2023)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO **MISCELLANEOUS APPLICATION NO. 35 OF 2021**

| <table> NABUNJO EDITA ::::::::::::::::::::::::::::::::::::</table> | |---------------------------------------------------------------------| | VERSUS | | <table> KIBUDDE ISAIAH :::::::::::::::::::::::::::::::::::</table> |

## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

- 1. This application was brought by Notice of Motion under the provisions of section 140 of the Registration of Titles Act, Cap 230, Section 98 of the Civil Procedure Act, Cap. 71, Order 52 rules 1 and 2 of the Civil Procedure Rules, S. I. 71-1, seeking for orders that: - (a) the caveat lodged by the Respondent on land comprised in Bugerere Block 15, Plot 4, land at Kiwenda does not disclose any caveatable interest by the caveator on the land caveated; - (b) the caveat lodged on the land comprised in Bugerere Block 15, Plot 4, land at Kiwenda be removed; and - (c) costs of the application be provided for. - 2. The Applicant supported the application with her affidavit sworn on 5th August, 2021, on the grounds that:

- (a) the Applicant is the registered proprietor of the land comprised in Bugerere Block 15, Plot 4, land at Kiwenda having been registered as the proprietor vide instrument No. MK042624 way back in 1984; - (b) the Applicant conducted a search at Mukono Land office through her lawyers from M/s Kabega, Bogezi & Bukenya Advocates who found out that the Respondent had on the 11th day of June, 2021 lodged a caveat on her land; - (c) the Respondent in the caveat claims to be an equitable and beneficial owner of the suit land that was leased to his late father Lameck Stanley Kizito way back in 1984, for a period of 88 years by the Applicant and that his family has since been in possession of the suit land and paying rent directly to her; - (d) the lease interest comprised in LRV 1302 Folio 6 was sold by the Respondent's late father to a one Bonafesi Matungyi who surrendered the same back to the Applicant long before his demise in 1991; - (e) since the surrender way back in 1986, the Respondent's late father never challenged the Applicant's interest and ownership of the land; - (f) the Respondent has no proprietary or caveatable interest in the land and merely lodged the caveat in furtherance of

his deceitful acts taking advantage of the Applicant's old age to deprive her of the use of her land;

- (g) the Respondent lodged the caveat without any lawful and substantial caveatable interest demonstrated within the caveat; - (h) the existence of the caveat has interfered with the Applicant's attempt to use or deal in her land which has resulted into loss: - (i) despite several attempts both oral and written, the Respondent has deliberately refused to remove the caveat; and - (j) in the circumstances, it's only fair, just and in the interest of justice that the application be granted. - 3. The Respondent opposed the application by an affidavit in reply which he deponed on 3rd November, 2021. The grounds for opposing the application were that: - (a) the Respondent is a son of the late Kizito Stanley Lameck and as such a beneficiary to his father's estate; - (b) the Respondent's father Stanley Lameck Kizito owned a lease interest in land comprised in Block 15, Plot 4 described as LHR. T.57A Vol. 1302, Folio 6, Plot 4 Bugerere in Kayunga District;

- (c) the Respondent's father developed a crop and animal farm on this land and even after his death on 3rd December, 1991, his family remained in full possession of the entire estate measuring 259 hectares; - (d) the estate of the Respondent's father is currently under streamlining by the Administrator General's Office under Mengo Administrator General Cause No. 1127/1993 Kizito Stanley-Deceased; - (e) the Applicant has readily been informed about the ongoing administration proceeding and was required by the Administrator General to restrain from any further dealings in the subject land until a competent court guides on the issues of Kizito Stanley Lameck's estate; - (f) the Applicant's allegations that the Respondent's father sold the lease to a one Bonafesi Mutungyi and that there was a surrender of the same to the Applicant are falsehoods and the attachments "B and C" on the application are forged documents and that the Respondent has reported a criminal case against the Applicant for forgery at police CID headquarters at Kibuli Kampala under Ref. No. GEF 161/21; - (g) the man Bonafesi Mutungyi the alleged purchaser for the lease, and Nsubuga James a said witness to the Surrender

Agreement have never existed in their village Kiwenda or known in their locality, Galiraaya Kayunga;

- (h) the Respondent's father left with his family the original copy of the certificate of title for the lease interest they now claim as a family and that at no time did his late father mention that he had sold off the lease to any man or entity; - (i) the Respondent and his siblings have religiously continued to pay rent dues to the Applicant until 2019 and that she has never before indicated that their father's lease was ever surrendered: - (j) the Respondent was alarmed to have discovered from the Land Registry at Mukono that the Applicant processed a special certificate of title and had disregarded his father's continuing lease of 88 years; - (k) the Respondent lodged the caveat as a beneficiary to the estate of the late Kizito Stanley Lameck, whose lease interest has never expired from the Applicant's land; - (I) in his application to the Registrar of Titles, the Respondent clearly attached a copy of the lease title, copies of the busuulu tickets and the lease agreement that was signed by the Applicant and his father;

- (m) this application is premature since the Applicant has never approached the Respondent or applied to the Registrar to remove the caveat; - (n) the application is a total abuse of court process the same having been brought basing on documents manufactured to defeat the lease interest of the Respondent's father in the subject land; and - (o) the application be dismissed. - 4. In rejoinder, the Applicant deponed that by the time of the demise of Lameck Kizito, he neither challenged the surrender and cancellation of his lease nor have the beneficiaries to his estate who have only been in occupation of part of the suit land paying the Applicant as the landlord. That the rent paid by the Respondent was in the form of busuulu paid to the landlord having consented to their continued occupation of part of the Applicant's land. - 5. During the hearing of this application, Counsel Atulinda Majda, Counsel Mukungu Salim and Counsel Moses Kabega from M/s Kabega, Bogezi & Bukenya Advocates represented the Applicant. The Respondent was represented by Counsel Enid Bukenya from M/s Bukenya, Chemonges & Co. Advocates. Both parties filed their written submissions and the Applicant filed submissions in rejoinder. However, when the parties were directed to file their additional submissions and the response thereunder arising from the admission of additional evidence, the record shows that none of them complied with the directives. Nevertheless, I

will consider the evidence and submissions on record in the determination of this application.

- 6. It was submitted for the Applicant that the surrender of an underlying lease was not by the Respondent but by one Bonafesi Mutungyi to the Applicant on 14th May, 1996. That the said leasehold LRV 1302 had been brought by Bonafesi Mutungyi from one Galilaya Lameck Kizito the Respondent's father. This was on 12th February, 1987 and prior to the coming into force of the Land Act and the present the Constitution of the Republic of Uganda, 1995. - 7. That since the Respondent's father had sold to one Bonafesi Mutungyi in 1987 prior to the coming into force of the Land Act and the Constitution, there was at the time no consent required from family members or children or otherwise. That since 1986/1987 when the Respondent's father sold the suit land, he neither challenged the said transaction in favour of Bonafesi Mutungyi nor challenged the surrender back of the lease to the Applicant and that it is now over 34 years since the Respondent's father sold the suit land to Bonafesi Mutungyi. - 8. That in light of the above, neither Galilaya Lameck Kizito nor the Respondent his son had any further proprietor or equitable interest in the said land, because Lameck sold all the leasehold interest he had without any reservation for the benefit of third parties. Counsel referred to the case of Govunji Kanji Raja & 2 Others v. Rio Holding International Ltd, HCCS No. 901 of 2001. That having divested himself of the said property, there was nothing left for the Respondent's

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father or his beneficiaries including the Respondent to claim benefit or interest therefrom. That hence there is no justifiable reason in law and fact for maintaining the caveat thereon.

- 9. The Applicant's counsel further contended that even if the Respondent had an interest in the suit land, the Applicant's title as registered proprietor overrides that of the Respondent's claim. That the said caveat is superfluous for want of any protectable lease interest. Also that the Respondent does not claim under a Will or settlement and is not protected within the meaning of section 140 (2) of the Registration of Titles Act and that there was no reasonable cause of lodging the caveat as there is in law no interest held in the suit land by the Respondent. - 10. Additionally, the Applicant's counsel asserted that the Respondent has not attached evidence of the lease hold title to substantiate his claim; no receipts to prove payment of rent to the Applicant. That the Respondent also has no letters of administration for the late father since 1991. Further, that there is no evidence of registration of the lease on the Applicant's land that was furnished by the Respondent and that there is no evidence attached showing that the Respondent is the son of the late Lameck. - 11. The Applicant's counsel submitted that all the above proves that there is no caveatable interest in the suit land by the Respondent hence the caveat should not have been entertained by the Registrar of Titles. That since such was entertained, it is an opportunity for this honourable court

to vacate the caveat for disclosing no caveatable interest in regard to the land in question.

- 12. The Respondent's counsel on the other hand averred that the Respondent's late father Stanley Lameck Kizito purchased the lease interest from the Applicant on 2nd March, 1984. That the lease agreement and the leasehold certificate of title were presented in evidence. That the late Stanley Lameck Kizito left the original lease certificate of title with his family before his death, which still remains with the Respondent. - 13. The Respondent's counsel submitted that the family members of late Kizito have remained in physical possession of the property from the time of Kizito's death in 1991. Further, that the Applicant has always received busuulu and acknowledged payments of rent from the late Kizito's family. That the Respondent and his family members have paid their annual rent dues up to as recent as the year 2019. That the fact that the Applicant has continued to receive busuulu payments from the late Stanley Lameck Kizito's estate is evidence enough to prove that the estate of Kizito from which the Respondent claims beneficial interest, has a subsisting interest that can reasonably justify the Respondent's caveat on Block 15, Plot 4. - 14. The Respondent's counsel contended that the alleged sale of the property by the late Kizito to Mutungyi Bonafesi and the said subsequent surrender of the lease to the Applicant are a fabrication by the Applicant and that this is the gist of the controversy and the basis

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of the caveat. That the documents in support of those said transactions are forged and the parties involved apart from the Applicant are unknown and never ever sighted around the subject land. That the family of the late Kizito has reported the matter to police and investigations are underway.

- 15. Besides, it was submitted for the Respondent that it is very unlikely that the late Kizito sold off the lease to unknown Mutungyi, retained the original lease certificate of title; retained complete actual possession without disclosing to any one this important transaction. That how could the Applicant keep this fact away from late Kizito's family and keep on collecting rent until 2019? That all these may suggest that the Applicant is coming to court with dirty hands to defeat the Kizito's estate and indeed the Respondent's interest in the property. - 16. That the Respondent dutifully presented to the Land Registrar documents proving existence of the lease, payment of busuulu / rent and he indeed swore a statutory declaration to the fact that he is a son and beneficiary of the deceased Stanley Lameck Kizito. That the caveat serves to notify the public of the apparent interest of the estate of the late Kizito and to warn any third parties from carrying out any dealings in the land until these existing claims are dealt with. - 17. Furthermore, that the estate of the late Stanley Lameck Kizito is currently under streamlining by the Administrator General's office and that the Administrator General has written to the Applicant requiring her to refrain from any dealings in the property until an administrator is

appointed to lawfully administer affairs of Kizito's estate. That the caveat serves to protect the interest of the estate of the late Kizito.

- 18. That until the administration of Kizito's estate is streamlined by court and investigations into the alleged misdealing that threaten the estate lease interest are concluded, the Respondent's caveat on Block 15, Plot 4 is justified and ought to be reinforced and sustained on the title property. Counsel prayed that court finds the lodgment lawful, reasonable, just and equitable in the circumstances. Learned counsel further prayed for an award of costs to the Respondent. - 19. The Applicant's counsel submitted in rejoinder that the argument that the Respondent beneficiary has the leasehold certificate has no weight because once there is a surrender noted in the register, the leasehold title's legal effect is extinguished by the surrender, in that case under SI MKO56223. That this document and the registration of surrender of lease is not expressly challenged in the Respondent's affidavit in reply. It was further rejoined for the Applicant that the SI No. MKO56223 used in registering the lease surrender is not in any way challenged.

## Issue

Whether the caveator / Respondent has shown cause why his caveat should not be removed.

## **Court's Analysis**

20. According to J. T. Mugambwa in his book entitled "Principles of Land Law in Uganda" at page 86, the reasonableness or lack of it to lodge

a caveat is a question of fact to be determined in the circumstances of each case. He adds that the fact that the caveator had no caveatable interest does not necessarily mean that he or she had no reasonable grounds to enter the caveat. Furthermore, the fact that the caveator has a caveatable interest does not by itself mean that he or she had a reasonable cause to lodge a caveat.

21. A caveat once lodged whether reasonably or unreasonably can only cease to have effect if withdrawn by the caveator, lapses after statutory notice or is removed by court's order. In Boyes v. Gathure [1969] E. A. 385, it was held that

> ".... a caveat is intended to serve a two –fold purpose: on the one hand, it is intended to give the caveator temporary protection, and on the other, it is intended to give notice of the nature of the claim to the person whose estate in the land is affected and to the world at large."

22. It is important to note that lapse of caveats is confined to particular circumstances specified under Section 140 (2) of the Registration of Titles Act, Cap. 230. It provides thus:

> "Except in the case of a caveat lodged by or on behalf of a beneficiary claiming under any will or settlement or by the registrar, every caveat lodged against a proprietor shall be deemed to have lapsed upon the expiration of sixty days after notice given to the caveator that the proprietor has applied for the removal of the caveat."

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23. The caveat which is the basis of this application was lodged under Section 139 (1) of the Registration of Titles Act, Cap. 230, which stipulates as follows:-

> "Any beneficiary or other person claiming any estate or interest in land under the operation of this Act ... may lodge a caveat with the registrar ... 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."

$\overline{24}$ The Respondent averred in his statutory declaration attached to his caveat (Annexure "F") that he is the son and a beneficiary of the estate of the late Stanley Lameck Kizito. The duty is on the caveator, in this case, the Respondent, to prove to court why the caveat that he lodged 2 years ago should not lapse or be vacated. It is the Respondent's undisputed evidence that they have reported a criminal case against the Applicant for forgery at Police CID Headquarters at Kibuli Kampala under Reference No. GEF 161/21. This averment was corroborated with the attached Police Form 17A directed to the Forensic Document Examiner requesting for comparison and examination of the subject documents alleged to have been forged.

$25.$ The laboratory report vide GEF 161/2021 dated 7th March, 2022 and certified on 14th April, 2022 was further admitted in evidence when Mr. Sebuwufu Erisa, the Senior Superintendent of Police and Head of Department of Questioned Documents, Director of Forensic Services, Naguru, testified confirming the validity of the said report. The report concludes as follows:

> "I carefully examined the questioned exhibit Q marked QY and compared it with the specimen signature on exhibit M marked Mii, N marked iii and O marked iv. The comparison was done using specialized scientific analytical methods of VSC5000 (Video Spectral Comparator), sketching and visual observation method. The results of the analysis are as follows:- I found **fundamental** differences between the questioned signatures on exhibit M marked Mii and the sample signatures on exhibits N marked iii and O marked iv in the formation of letter o, slow pen movement on letter S in the questioned signature whereas not in the sample signatures, design and manner of execution of letter k, angularities formed at the top of I-like letter in the samples whereas as a curvature formed at the top of I-like letter in the questioned signature, internal propositions of z-like letter, skill of execution and relative letter sizes and proportions among others.

Based on observations made above, in my opinion, it is unlikely that the author of specimen signatures of

exhibits M marked Mii, N marked iii and O marked iv is the same author of the questioned signature on exhibit Q marked Qi."

- $26$ The above finding raises a serious issue of fraud. The signature of the late Kizito, the Respondent's father was forged in the document purportedly selling land to one Bonafesi Mutungi whom the Respondent alleged to be a non-existing person. The Applicant did not challenge the Respondent's claim and she did not present an affidavit from the said person who is supposed to have surrendered the lease to the Applicant. In my view, this controversy can only be determined and finally concluded in a civil litigation rather than in a criminal proceeding as alluded to by the Respondent or by affidavit evidence as in this application. - 27. The Respondent has also attached evidence to prove that in 2021, the Administrator General was in the process of streamlining the estate of the late Kizito Stanley Lameck. From the evidence presented before this court, I find that the Respondent has proved that he has a beneficial interest in the suit property which ought to be protected. Since such interest has to be determined through litigation, it would only be fair and just for the caveat to be maintained and the Respondent or the administrator of the estate of the late Kizito to be given time to file a civil suit to protect the said estate. - 28 Pursuant to the foregoing analysis, I hereby dismiss this application with costs to the Respondent.

I so rule and order accordingly. This ruling is delivered this .................................... $\therefore$ 2023 by

FLORENCE NAKACHWA **JUDGE.**

In the presence of:

(1) Counsel Enid Bukenya from M/s Bukenya, Chemonges & Co. Advocates, for the Respondent; (2) Ms. Pauline Nakavuma, the Court Clerk.