Nambalirwa v Kizza & 4 Others (Miscellaneous Cause 44 of 2024) [2024] UGHCLD 150 (30 May 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] **MISCELLANEOUS CAUSE NO.044 OF 2024**

NAMBALIRWA ERUSA NABATEEZI :::::::::::::::::::::::::: APPLICANT

#### **VERSUS**

#### **KIZZA JAMIL**

(sued as lawful attorney for

- 1. KASASA AARON - 2. NAKAWUKA ALLEN - **3. NANSASI IRENE**

4. NAMPEERA MARY GORETH ::::::::::::::::::::::::::::::::::::

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA** RULING.

### **Introduction:**

1. This was an application by notice of motion brought under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act, Section 140 of the registration of titles Act, Order 52 rules 1 & 3 of the Civil Procedure Rules (CPR) for orders that: -

Hamagey-

- i) The caveat lodged by the respondents on land situate on Kyadondo block 111 plot 2564, land at Lubata, Wakiso district be vacated by this honorable court. - ii) An order be made by this honorable court directing the commissioner land registration to vacate the said caveat on the suit land. - iii) Costs of the application be provided for.

#### *Background;*

- 2. The applicant is the registered proprietor to the suit land who obtained the said land as a beneficiary from the estate of her late father Erisa Kiviiri Muteezi. - 3. The respondents through a baseless claim lodged a caveat on the said suit land claiming a beneficiary interest from the estate of the late Erisa Kiviiri Muteezi. The applicant has been utilizing the suit land and its where she derives her sustenance, hence this application.

# *Applicant's evidence;*

4. The application is supported by an affidavit deponed by the applicant which briefly states as follows;

- i) That the applicant is the registered proprietor to the suit land. - ii) That the applicant obtained the said land as a beneficiary of the estate of her late father Erisa Kiviiri Muteezi - iii) That to the applicant's shock, she found out that the suit land was caveated by one Kizza Jamil under instrument number WKY-00354220 - iv) That the caveat lodged by the respondent is misplaced and that the suit land does not belong to the estate of their late father Bwete Dian Dios and mother Margaret Nambalirwa - v) That the late parents of the respondents obtained their share from the administrator general - vi) That my intentions to transact with the land have been impossible because of the caveats lodged.

#### *Respondent's evidence;*

5. The application is responded to by an affidavit in reply deposed by Kiiza Jamil and another one by Florence Naddamba Kanyike who avers to have knowledge about the entire application which affidavits briefly state as follows;

- i) That Kizza Jamil is the lawful attorney of Kasasa Aaron,Nakawuka Allen,Nansasi Irene and Nampeera Mary Goret. - ii) That the said persons are great grandchildren of the late Erisa Kiviiri Muteezi and grandchildren of the late Bwete Dian Dios. - iii) That it is not true that the applicant is the sole beneficiary of the estate of the late Erisa Kiviiri Muteezi. - iv) That the suit land was received by Erusa Nambalirwa Nabateezi as the administrator of the estate of the late Erisa Kiviiri Muteezi from the consent judgement entered in HCMA No.243 of 2019 arising from HCCS No.11 of 2016. - v) That in the said consent the said Erisa Nambalirwa Nabateezi received 33.4 acres of land at lubata kiteezi block 111 plots 1495 and 1509 from which the applicant's subject plot was curved. - vi) That the said Erisa Nambalirwa Nabateezi has not distributed estate land among the beneficiaries to include the caveators.

#### *Applicant's affidavit in rejoinder;*

6. In rejoinder the applicant had this to aver briefly;

- i) That the respondents have no claim whatsoever in the caveated land since the estate of the late Erisa Kiviri was distributed by the administrator general between the children inclusive of the late Bwete Dian Dios a brother to the applicant. - ii) That the respondents could have had their interests to the administrator of the estate of the late Bwete Dian Dios - iii) That the applicant contends that by the time the consent was entered on the 11th November 2019, the applicant had never been an administrator of the estate of the late Erisa Kiviri Muteezi - iv) That the respondents share was granted to the administrator general to the estate of the late Bwete Dios in favor of Nakawuka Allen.

# *Representation;*

7. The applicant was represented by Daniel Lubogo of AB & David Advocates whereas there was no representation from the respondents. Both parties filed their affidavits and submissions which I have considered in the determination of this application.

#### *Issues for determination;*

- *i) Whether the respondents have caveatable interest in the suit land?* - *ii) What remedies are available to the parties?*

#### *Resolution and determination of the issues;*

8. In arguing the first issue, Counsel for the applicant submitted that court is empowered in applications of this nature, to make such orders as it deems fit, this includes the power to make an order for removal of a caveat where a party fails to show because why a caveat should not be removed. Counsel cited the provisions of Section 140(1) of the Registration of Titles Act and **Simon Kattabu**

#### **Vs Richard Simbwa,HCMC No.121 of 2020**

9. Counsel for the applicant further submits that the respondent had no locus to lodge the said caveat affecting the suit land because their grandfather obtained their share from the administrator general as stated in the distribution list. Counsel cited the decision in **Nantongo Milly Vs Sserubidde Moses Lukasa and 2 Ors Misc. Cause No.19 of 2024** where in my ruling I had this to say, for a caveat to be valid there should be a protectable interest that the caveat seems to protect otherwise the caveat would be invalid.

- 10. Counsel for the applicant further submits that the respondents do not qualify as beneficiaries within the meaning the definition of the law in respect of the suit land and that there is no evidence produced before court that the suit land belonged to their grandfather. - 11. In reply counsel for the respondents submits that the caveat in issue was lodged by the beneficiaries through Kiiza Jamil their lawful attorney, the same persons are grandchildren of the late Bwete Dian Dios and great grandchildren of the late Erisa Kiviri Muteezi. And that the applicant is a sister of the late Bwete Dian Dios who are both children of the late Erisa Kiviiri Muteezi - 12. Counsel for the respondents further submits that the caveat in issue was lodged on the land on the 15th of December 2023 and that there is a pending suit at the High court family division where the said caveat is in issue vide High court Family division civil suit no.281 of 2021 Kasasa Aaron( beneficiary of the estate of the late

Bwete Dian Dios, suing through his lawful attorney Kiiza Jamil) vs Namubiru Nambalirwa Erusa Nabateezi,Babirye Magarey(administrators of the estate of the late Erisa Kiviiri Muteezi) and 8 ors.

- 13. Counsel for the respondent relied on the decision in **Rutungu properties ltd vs Linda Harriet Carrington & Anor CA No.061** of 2010 where Hellen Obura JA held that a respondent as a caveator must prove the following; - **i) The caveator has sufficient grounds to maintain the caveat.** - **ii) The caveator has brought an ordinary action in time against the caveat.** - **iii) The balance of convenience lies in maintaining the caveat rather than the removal.**

## Analysis by court.

14. The primary objective of a caveat is to give the caveator temporary protection, it is not the intention of the law that the caveator should relax and sit back for eternity without taking steps to justify the said caveat*. (See; Boynes vs gather (1968) EA 78)*

- 15. The registration of titles Act under section 140 speaks to beneficiary caveats and how the same do not lapse but rather the same can be vacated by an order of court or via consent by the caveator. - 16. In the instant case, the respondents claim to have beneficiary interest in the caveatable land that the caveat seeks to protect and that they are claiming their beneficiary interest from the interest of the late Bwete Dian Dios who was a beneficiary of the estate of the late Erisa Kiviri Muteezi which land the applicant holds. - 17. Further I take notice that there is a pending suit before the high court family division vide civil suit no.no.281 of 2021where the parties to the instant application are party to and where the said caveat and the suit land are in issue. - 18. I am of the view that vacating the said caveat would be rendering Civil Suit No.281 of 2021 a moot since the caveatable land is in issue as well, vacating the said caveat would be exposing the suit land to possible transfers by different parties. - 19. In the result, it is to the finding of this court that balance of convenience lies in maintaining the caveat than vacating the same,

further the respondents intend to protect their beneficiary interest through the said caveat lodged.

20. Therefore, the instant application stands dismissed by this honorable court and the same fails with no orders as to costs.

**I SO ORDER.**

## **NALUZZE AISHA BATALA**

## **JUDGE**

**30th/05/2024**