Rwakakooko v Mpiirirwe (HCT-05-CV-MC 18 of 2024) [2022] UGHC 152 (11 October 2022)


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MC-0018-2024**

**HON. ELLY K. RWAKAKOOKO --------------------------------------- APPLICANT**

## **VERSUS**

- 10 **1. MPIIRIRWE FLAVIA (Administrator of the Estate of the late Mbareba Francis)** - **2. THE COMMISSIONER LAND REGISTRATION ------------ RESPONDENTS**

**BEFORE:** Hon. Justice Nshimye Allan Paul M.

## **RULING**

## **REPRESENTATION**

The Applicant was represented by M/s Mwesigwa Rukutana & Co. Advocates; the 1st Respondent was represented by M/s Ruyondo & Co. Advocates. The 2nd 20 Respondent did not enter appearance nor file any pleadings despite being served with Court process.

## **BACKGROUND**

This application was brought under Sections 140(1), 142, 145 & 188 of the

- 25 Registration of Titles Act Cap 230; and Order 52 Rules 1, 2 & 3 of the Civil procedure Rules S. I 71-1 (as amended) seeking orders that; - 1. The 1st Respondent shows cause why her caveat *vide* Instrument Number **MBR00058413** noted on 23rd February, 2023 on the Applicant's land comprised in Freehold Register Volume 1113 Folio 17, Plot 7 Block 42 situate - 30 at Kagati, Bushenyi, Nyaburiza, should not be vacated/ lapsed from the Register.

- 2. An Order directing the 2nd Respondent to vacate the caveat lodged by the 1st Respondent on land comprised Freehold Register Volume 1113 Folio 17, Plot 7 Block 42 situate at Kagati, Bushenyi, Nyaburiza. - 3. An Order that the 1st Respondent pays compensation to the Applicant for the - 5 loss and damage occasioned by the prolonged lodgment of the said caveat without lawful or reasonable or probable cause. - 4. An Order that the 1 st Respondent pays the costs of this Application.

The application is supported by an affidavit deponed by the Applicant, and is opposed through an affidavit deponed by the 1st Respondent.

## **GROUNDS**

The grounds of the application as set out in the notice of motion are as follows;

- a) The Applicant is the lawful owner of land comprised in Freehold register Volume 1113 Folio 17, Plot 7 Block 42 situate at Kagati, Bushenyi, Nyaburiza, - 15 having obtained the same free from encumbrances. - b) The Applicant single-handedly applied for and obtained a lease from Uganda Land Commission upon which he was issued with a leasehold certificate of Title. The land was later on converted to Freehold tenure without any objection from the 1st Respondent or any other person. - 20 c) Before obtaining the certificate of Title, he had settled on the land by establishing his residential home, farmlands and plantations. - d) The Applicant, in a spirit of brotherhood, freely gave a portion of land to his half-brother, the late Mbareba Francis (whose estate is currently being administered by the 1st Respondent) - 25 e) The late Mbareba Francis and his family have lived on their allocated portion for all their life without any boundary dispute. - f) After the 1st respondent's (and the predecessor thereof) long usage of the portion of the land, the Applicant resolved to subdivide the land to enable the 1st Respondent obtain a certificate of Title for the portion she is in - 30 occupation/given by the Applicant. - g) When the process was in its advanced stages, the Applicant discovered that the 1st Respondent had a lodged caveat with the 2nd Respondent. The caveat was noted on the Certificate of Title on 23rd February, 2023. - h) For 434 days (and still counting) since the lodgement of the impugned caveat, - 35 the Respondent has never commenced any proceedings against the Applicant

and has never carried out any essential step to show cause why her caveat should not be lapsed.

- i) The 1st Respondent's caveat has caused loss and damage to the Applicant as he cannot deal in the land with prospective business partners. - 5 j) It is just and fair and in the interest of justice that this application is granted.

## **SUBMISSIONS**

The parties filed written submissions. The Applicant's submissions in support were filed on 20th May, 2024, the 1st Respondent's submissions were filed on 9th July, 2024, and the Applicant rejoined on 22nd 10 July, 2024.

## **Applicant's submissions in support**

Counsel framed two issues;

- 1. Whether the caveat lodged by the 1st Respondent on land comprised in - 15 Freehold Register Volume 1113 Folio 17, Plot 7 Block 42 situate at Kagati, Bushenyi, Nyaburiza belonging to the Applicant be vacated? - 2. What are the available remedies?

On the 1st issue, it was submitted that Section 140(1) of the Registration of Titles 20 Act empowers this Court to order the removal of a caveat where the caveator fails to show cause why it ought not be removed, and that Section 139(1) of the Act requires a caveator to have a caveatable interest. It was argued that the primary objective of a caveat is to give the caveator temporary protection, and that the caveator must bring an ordinary action without undue delay to 25 determine the caveator's right as against other competing interests and obtain a permanent remedy **(see: RUTUNGU PROPERTIES LIMITED VS LINDA HARRIET CARRINGTON & ANOTHER CIVIL APPEAL No.61 of 2010)**. That the Applicant claimed that he has been affected by the 1st Respondent's caveat.

Regarding the 2nd issue, it was prayed for Court to declare that; the 1st 30 Respondent has failed to show cause why a caveat should not be removed, order the 2nd Respondent to vacate the caveat on the suit land, the 1st Respondent pays for compensation for the loss and damage occasioned and costs of the application.

#### **1 st Respondent's submissions**

Counsel argued that the Applicant is not the lawful proprietor of land comprised in Freehold Register Volume 1113 Folio 17, Plot 7 Block 42 situate at Kagati, Bushenyi, Nyaburiza, but the same belonged to the parents of both the Applicant

- and the 1st 5 Respondent's deceased husband. That the Applicant being an elite, capitalized on his illiterate brother's (the late Mbareeba Francis – the 1st Respondent's husband) ignorance to register the family land in his own name and obtained a certificate of title thereto. That before his death, the late Mbareeba had sought intervention from the LCIII office wherein a report was - 10 made showing that he had rights to own the suit land as a beneficiary.

Counsel added that the 1st Respondent was not quick to lodge an action because of the mediation efforts which were ongoing. Counsel relied on **NASSAKA SARAH VS NANSIMBI MILLY MISC CAUSE No.31 of 2020** for the position that a 15 beneficiary caveat can only be withdrawn by the caveator or removed on an order of Court. And that since the 1st Respondent has not consented to its removal, the caveat should not be removed.

### **Applicant's submission in rejoinder**

20 Counsel reiterated his earlier submissions and added that the argument that a beneficiary's caveat cannot be lapsed until a beneficiary's consent has no jurisprudential foundation.

### **DETERMINATION**

- 25 In principle, a proprietor of land on which a caveat has been lodged can file an application **summoning the caveator to attend before the court to show cause why the caveat should not be removed** as is provided in **SECTION 124 (1) OF THE REGISTRATION OF TITLES ACT CAP 240** - 30 The evidence on court record shows that the applicant filed this application in court on 3rd May 2024 against the respondents seeking an order that the 2nd respondent vacate the caveat lodged by the 1st respondent under instrument number MBR00058413 on land comprised in Freehold Register Volume 1113 Folio 17 Plot 7 Block 42 situate at Kagati Bushenyi, Nyaburiza.

It is the applicant's evidence in paragraph 2 of the affidavit in support that he is the lawful owner of land comprised in Freehold Register Volume 1113 Folio 17 Plot 7 Block 42 situate at Kagati Bushenyi, Nyaburiza. He averred in paragraph 6 of his affidavit in support that he first acquired a lease hold title from 1st March

5 1984 and later converted to a freehold, getting the freehold title on 18th December 1988 (see paragraph 3 of the applicant's affidavit in support).

I note that a copy of the applicant's certificate of title is attached as annexture A to the affidavit in support. The law in **SECTION 59 OF THE REGISTRATION OF**

- 10 **TITLES ACT CAP 240** stipulates that a certificate of title is conclusive proof of ownership by the person named in the title. I therefore find that the applicant is the proprietor of the land comprised in Freehold Register Volume 1113 Folio 17 Plot 7 Block 42 because his name is on the said title as proprietor. - 15 It is trite that a person having an interest in land can lodge a caveat as is provided in **SECTION 123 (1) OF THE REGISTRATION OF TITLES ACT CAP 240.** The evidence on court record shows that the respondent lodged a caveat on the applicant's land on 23.02.2023 (see encumbrance page on the title attached as annexture A to the affidavit in support).

I have perused the respondent's caveat and its affidavit in support that are all attached as annexture B to the applicant's affidavit in support. The 1st respondent in her caveat states that she is lodging it as a beneficiary and occupant on the land. It is thus important for court to interrogate whether the 25 respondent lodged a beneficiary caveat or not.

The law provides that with exception of a caveat by the registrar, beneficiary caveats (see **SECTION 124 (2) & 128 RTA CAP 240**) do not expire yet the other forms of caveats expire after 60 days after notice given to the caveator that the 30 proprietor has applied for the removal of the caveat as provided in **SECTION 124 (2) OF THE REGISTRATION OF TITLES ACT CAP 240** which states that;

> *"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."* (emphasis mine)

The law in **SECTION 102 OF THE EVIDENCE ACT CAP 8** places the burden to prove 5 on that person who would fail if no evidence at all were given on either side. It therefore means that the 1st respondent had a duty to prove that she lodged a beneficiary caveat, and in the event it is not a beneficiary caveat she must prove that she has a caveatable interest in the land registered in the name of the applicant.

### 10

I will first list the salient evidence of the respondent on record.

- 1. The 1st respondent states in paragraph 2 of her affidavit in reply that she is a widow of the late Francis Mbareeba and also an administratrix of the estate of the late Francis Mbareeba vide HCT-05-FD-AC-259 of 2021. - 15 2. The 1strespondent states in paragraph 4 of her affidavit in reply that when she got married to her husband the late Francis Mbareeba in 1975 she found him living with the applicant and their now deceased mother. - 3. The 1st respondent states in paragraph 5 of her affidavit in reply that her husband told her that the land belonged to their parents. - 20 4. The 1st respondent states in paragraph 7 of her affidavit in reply that her late husband and the applicant being siblings inherited the suit land. - 5. The 1st respondent states in paragraph 8 of her affidavit in reply that the applicant being educated applied for the land convincing his illiterate brother that he was to get two different titles, one in his names and 25 another in the brother's name.

The 1st respondent being a widow of the late Francis Mbareeba is a beneficiary of the estate of the late Francis Mbareeba, yet the suit land is in the names of the applicant and not her late husband. The allegation that the land belonged to 30 the parents of the applicant is based on hearsay from the now deceased late Francis Mbareeba who lived on the land while it was registered in the name of the applicant. The 1st respondent also made reference to a complaint to the LCIII court, and a document is attached as annexture B to her affidavit in reply titled " REPORT ON HON RWAKAKOOKO ELLY AND MBAREEBA FRANCIS LAND". I note 35 that the document is NOT a decision of the LCIII sitting as a court but was

mediation report that is not signed by either the applicant or the late Francis Mbareeba. Thus the document can not be taken to be a decision of an LCIII court.

I therefore find that the respondent's evidence on court record does not show 5 that she has an interest in the land that justifies her lodgement of a caveat. She is certainly not entitled to lodge a beneficiary caveat because the land is not registered in the names of her late husband, Francis Mbareeba. She has also not adduced credible evidence to show that the land belonged to the parents of the applicant and his late bother. The respondent has therefore failed to show cause

10 why the caveat should stay on the land registered in the applicants' names.

### **REMEDIES**

It is trite that parties are bound by their pleadings as can be deduced from Order 6 Rule 7 CPR.

The applicants evidence on court record is that

1. The applicant states in paragraph 9 of the affidavit in support that *"In the spirit of brotherhood, I freely gave a distinct portion of land to my brother, the late Mbareeba Francis (whose estate is currently* 20 *being administered by the 1st respondent). The boundaries of the land I gave him were marked out with a physical fence which has existed since time immemorial"*

2. The applicant states in paragraph 10 of the affidavit in support that 25 *"After long usage of a portion of the land by the late Mbareba Francis (my late brother). I resolved to engage a surveyor to formally subdivide the land to enable him to obtain a certificate of title for the portion of which he was already in procession".*

30 3. The applicant states in paragraph 11 of the affidavit in support that *"When the process of subdivision of the land was in its advanced stages I discovered that the 1st respondent had lodged a caveat with the 2nd respondent"*

The 1st respondent's evidence on court record that tallies with that of the applicant above is contained in annexture B to the respondents affidavit in reply, the Report of the LCIII which states that Hon Rwakakooko Elly said that he will bring the surveyors and divide part of land to his brother Mr Mbareeba,

5 providing him a title.

I find that the applicant undertook to give part of the land in his name to his brother, and by his own averments in paragraph 11 of the affidavit in support the process was in advanced stages of surveying off land but the respondent

10 lodged a caveat.

The High court is vested with power to give remedies as is provided in **SECTION 37 OF THE JUDICATURE ACT CAP 16**, which states that

## *"37. General provisions as to remedies*

- 15 *The High Court shall, in the exercise of the jurisdiction vested in it by the*

*Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in* 20 *controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided"*

To promote harmony among the parties who are relatives and hold the applicant 25 by his words, it is proper for the court to invoke its powers under **SECTION 37 OF THE JUDICATURE ACT CAP 16** in supporting the process commenced by the applicant to surveying off the land occupied by the 1st respondent from the land comprised in Freehold Register Volume 1113 Folio 17 Plot 7 Block 42.

- 30 In conclusion, I order that - 1. The caveat lodged by the 1st respondent under instrument number MBR00058413 on land comprised in Freehold Register Volume 1113 Folio 17 Plot 7 Block 42 situate at Kagati Bushenyi, Nyaburiza is vacated.

- 2. The 2nd respondent to remove the caveat lodged under instrument number MBR00058413 from land comprised in Freehold Register Volume 1113 Folio 17 Plot 7 Block 42 situate at Kagati Bushenyi, Nyaburiza. - 3. The applicant shall survey off land occupied by the 1st respondent from the land comprised in Freehold Register Volume 1113 Folio 17 Plot 7 Block 42 situate at Kagati Bushenyi, Nyaburiza and transfer it to the 1st respondent as an administrator of the estate of the late Mbareba Francis. - 4. Each party shall cater for their own costs of this application.

was ear $\ell$ . . . . . . . . . . . . . . . . . . . .

**NSHIMYE ALLAN PAUL M. JUDGE** 11-10-2024

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