Ssembusi Matia v Kato Dungu Lennox Protese (Miscellaneous Cause No. 10 of 2025) [2025] UGHC 572 (18 July 2025)


#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA SITTING AT MPIGI**

#### **MISCELLANEOUS CAUSE NO. 10 OF 2025**

**SSEMBUSI MATIA =====================================APPLICANT**

#### **VERSUS**

**KATO DUNGU LENNOX PROTESE ======================= RESPONDENT**

# **BEFORE: HON. LADY JUSTICE DEEPA VERMA**

#### **RULING**

#### Introduction

The Applicant filed a Notice of Motion under Sections 123, 124, 126, 129, 161, and 172 of the Registration of Titles Act Cap 240, Section 98 of the Civil Procedure Act Cap 282, and Order 52 Rules 1 to 3 of the Civil Procedure Rules S. I. 71-1 seeking for orders; that the caveat lodged by the Respondent, Mr. Kato Dungu Lennox Protese on the certificate of title for land comprised in Mawokota Block 40, Plot 90 at Bujuko be vacated and/or removed, that a consequential order be issued against the Registrar of Titles to vacate and/or remove the said caveat and effect the changes in the register book, that the Respondent pays compensation to the Applicant for lodging the caveat without lawful or reasonable cause, that the costs of this application be awarded to the Applicant.

The grounds of the application as briefly highlighted in the affidavit in support of the application sworn by the Applicant are that:

a. The Applicant is the registered proprietor of the land comprised in Mawokota Block 40, Plot 90 at Bujuko, having purchased it from Mr. Daniel Mulinde through a Bonafide purchase.

- b. That before the purchase, the Applicant conducted due diligence, including a land search on 22nd May 2023, which confirmed that the land was unencumbered and registered in the name of Mr. Daniel Mulinde. - c. That the Respondent, who is a stranger to the Applicant, unlawfully lodged a caveat on the suit land under Instrument No. MPL00033166 without any lawful justification or court order. - d. The Applicant issued statutory notices to the Respondent to substantiate the caveat but the Respondent failed to respond or obtain a court order to sustain the caveat within the stipulated 60 days as required under the law. - e. That the continued existence of the caveat on the land is unjustified, unlawful, prejudicial and has greatly affected the Applicant's proprietary rights as the registered owner. - f. That it is in the best interest of justice that the caveat be vacated and lapsed to enable the applicant enjoy the unimpeded ownership of the land.

Efforts to serve the Respondent with the Notice of Motion and hearing notices were unsuccessful. The court process server, Mr. Benson Kato was informed by the Local Council I (LCI) Chairman that the Respondent was no longer a resident of the area and his whereabouts were unknown. A subsequent affidavit of service dated 7th July 2025, sworn by Mr. Ssentamu Michael, confirmed that the Respondent was contacted via telephone-0772663599 and explicitly stated that he would not attend court, claiming the land had been sold and threatening the Applicant that he will make his life vulnerable if he does not leave his land.

Applicant prayed to proceed ex parte as the Respondent did not file a reply to show cause why his caveat lodged on certificate of title for land comprised in Mawokota Block 40 plot 90 at Bujuko should not be vacated. Court granted the prayer.

# **Representations**

During the hearing of this application, the Applicant was represented by Counsel Brian K. Tindyebwa of M/s Kusingura Tindyebwa and Co. Advocates who filed the Applicant's written submissions as directed by this Court.

# **Issues for Determination**

In his written submissions, counsel for the Applicant raised the following issues:

- **1. Whether the Respondent lawfully and justifiably lodged the caveat on the suit land.** - **2. Whether the caveat should be vacated and/or removed from the certificate of title.** - **3. Whether the Applicant is entitled to compensation and costs.**

# **Analysis and Resolution of issues**

# **Issue 1: Whether the Respondent lawfully and justifiably lodged the caveat**

In the case of **Segirinya Gerald v. Mutebi Innocent HCMA No. 081 of 2016**, it was rightly held that the primary objective of a caveat is to give the caveator temporary protection.

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

*Any beneficiary or other person claiming any estate or interest in land 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.*

In the case of *Akuta Alfonse & 3 Ors v. Lakony David Livingstone* (CA No. 0026 of 2015), Hon. Justice Stephen Mubiru held that a party who deliberately and voluntarily absents themselves from court proceedings cannot claim a violation of their right to a fair hearing. This principle is further supported by *Attorney-General of Rivers State v. Gregory Obi Ude and 12 Others* [1993] 2 NWLR (Pt. 278) 638; [1993] 2 SCNJ 47, where it was established that a party who willfully fails to attend a hearing or provide evidence when required forfeits the right to challenge the fairness of the proceedings.

Parties who choose to disregard court processes do so at their own risk. According to the affidavit of service dated 7th July 2025, the court process server-Ssentamu Michael attached to this Court, under paragraph 4, confirms that the Respondent was contacted via telephone number 0772663599. The Respondent explicitly stated that he would not attend court, expressing disinterest and instructing the court to cease contacting him.

Furthermore, in *Serefaco Consultants Ltd v. Euro Consult BV* (CA Civil Application No. 16 of 2007), the Court of Appeal held that uncontroverted affidavit evidence, absent of any discrepancies, is deemed correct. The justices explicitly stated:

*"…it is settled law that if the applicant supports his application by affidavit or otherwise and the respondent does not reply by affidavit or otherwise and the supporting evidence is credible in itself, the facts stand unchallenged."*

In the present case, the Applicant's affidavit evidence remains uncontroverted due to the Respondent's failure to respond or appear. Consequently, this court is justified in accepting the Applicant's evidence as true and proceeding accordingly.

The Respondent has not demonstrated any interest in the suit land as required under section 123(1) of the Registration of Titles Act. The Applicant's affidavit, supported by Annexures "A"-Purchase agreement and "B,"-Certificate of title confirms that he is the registered proprietor, having lawfully purchased the land from Mr. Daniel Mulinde. A land search marked annexure "C" conducted on 22nd May 2023 further confirmed that the land was unencumbered at the time of purchase.

Counsel for the Applicant cited the case of *Ali Sidi Ngarukiye v. Muyonga Andrew Mubiru hct-mc-no-0031 of 2015*, where the Hon. Lady Justice Florence Nakachwa held that a caveat is only valid and justifiable if the caveator has a caveatable interest, whether legal or equitable, in the land, which position I agree with.

The Respondent in the instant case has failed to provide any evidence of such an interest. Furthermore, the Respondent's failure to respond to the notices by way of letters issued on 8th August 2024 and 26th February 2025 to the Registrar of titles at Mpigi Zonal Land Office applying for the removal of the caveat, or to obtain a court order to sustain the caveat, reinforces the conclusion that the caveat was lodged without lawful justification.

I thus find that the Respondent lacked a caveatable interest and that the caveat was lodged unlawfully and unjustifiably. The first issue is resolved in the affirmative.

# **Issue 2: Whether the caveat should be vacated and/or removed from the certificate of title**

*Section 124 (1) of the Registration of Titles Act cap 240* empowers this Court, in applications such as this, to make such orders as it deems fit. This includes the power to order for removal of a caveat where the caveator fails to show cause why it ought not to be removed. *Section 124 (1)* provides thus:

*"Upon the receipt of such caveat, the Registrar shall notify the receipt to the person against whose application to be registered as proprietor or, as the case may be, to the proprietor against whose title to deal with the estate or interest the caveat has been lodged; and that applicant or proprietor or any person claiming under any transfer or other instrument signed by the proprietor may, if he or she thinks fit, summon the caveator to attend before the court to show cause why the caveat should not be removed; and the court may, upon proof that the caveator has been summoned, make such order in the premises either ex parte or otherwise, and as to costs as to it seems fit."*

In the instant case the Applicant complied with the statutory requirement by applying to the Registrar of titles at Mpigi Zonal Land Office to vacate or remove the caveat as evidenced by Annexures "E" and "F," and the Respondent has since failed to justify the caveat or show cause why the said caveat should not be removed within the sixty (60) days period stipulated under Section 124(2) of the Registration of Titles Act. The Respondent's refusal to attend court, further demonstrates his failure to show cause.

A caveat provides temporary protection to the caveator and notifies others of a claim but is not intended to persist indefinitely. It offers interim relief pending substantiation of the caveator's interest, not to encumber the title perpetually- *Ali Sidi Ngarukiye v. Muyonga Andrew Mubiru hct-mc-no-0031 of 2015*

The Respondent's inaction, coupled with his explicit refusal to engage in these proceedings, justifies the removal of the caveat. The continued existence of the caveat

prejudices the Applicant's proprietary rights as the registered owner, preventing him from dealing with the land as he pleases.

Given that no intervening circumstances justify maintaining the caveat, I find that justice demands its removal to enable the Applicant exercise his rights as the registered proprietor.

I therefore find that the caveat should be vacated and removed from the certificate of title for Mawokota Block 40, Plot 90.

# **Issue 3: Whether the Applicant is entitled to compensation and costs**

*Section 126 of the Registration of Titles Act* as rightly cited by counsel for the Applicant provides that;

*"A person lodging any caveat with the Registrar, either against bringing land under this Act or otherwise, without reasonable cause, shall be liable to make to any person who may have sustained damage by the lodging of the caveat such compensation as the High Court deems just and orders."*

Whether a caveat is lodged with reasonable cause is a question of fact, determined by the circumstances of each case. Caveatable interests may include those of a purchaser under an agreement for sale, a registered or equitable mortgagor, or beneficiaries of an estate or trust or easement. As held in *Ali Sidi Ngarukiye v. Muyonga Andrew Mubiru* (supra), a person who lodges a caveat without reasonable cause or maintains it unnecessarily is liable for damages.

The Applicant in the present case has submitted that he suffered inconvenience and financial loss, including legal fees incurred in bringing this application and the inability to transact on the land due to the caveat. The Respondent's threats, as recorded in the affidavit of service dated 7th July 2025, further exacerbate the prejudice caused to the Applicant.

It is a settled principle of law that damages for which a party is to be compensated must be pleaded and proved with cogent evidence as being the direct result of the defendant's wrongs-*Eladam Enterprises Ltd v. S. G. S (U) Ltd & Others*, Civil Appeal No. 20 of 2002. While the Applicant has pleaded for compensation, the evidence on record does not sufficiently quantify the specific financial losses or economic opportunities, to warrant an award of compensation.

However, the law recognizes that general damages may be awarded as the natural and probable consequence of the defendant's act or omission-*James Fredrick Nsubuga v. Attorney General*, H. C. C. S No. 13 of 1993 and *Erukan Kuwe v. Isaac Patrick Matovu & A'nor H. C. C. S. No. 177 of 2003 per Tuhaise J*. General damages are within the discretion of the court and are guided by the value of the subject matter, the economic inconvenience suffered, and the nature and extent of the breach or injury-*Uganda Commercial Bank v. Kigozi* [2002] 1 EA. 305.

In the present case, the Applicant has clearly suffered physical inconvenience due to the Respondent's actions in lodging and maintaining the caveat, as well as the costs incurred in pursuing its removal, including filing this application. As held in *Assist (U) Ltd v. Italian Asphalt & Haulage & Another* (HCCS No. 1291/1999), physical inconvenience constitutes a form of damage for which general damages may be awarded.

Given the circumstances, particularly the Applicant's inability to transact on the land and the efforts expended to remove the caveat, an award of general damages is appropriate. Considering the principles in *Kampala District Land Board & George Mitala v. Venansio Babweyana (Civil Appeal No. 2 of 2007),* it is trite law that damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering. Consequently, the Applicant is entitled to compensation for these damages.

I find that an award of UGX 5,000,000/= (Uganda shillings Five million) as general damages is deemed just and reasonable.

Regarding costs, Section 27(1) of the Civil Procedure Act, is to the effect that costs are awarded at the discretion of the court, with the general rule that costs follow the event unless exceptional circumstances justify otherwise. The Respondent's failure to file a valid affidavit in reply or comply with court processes does not constitute exceptional circumstances to warrant denying costs. Accordingly, the Applicant is entitled to the costs of this application.

In light of the foregoing, this application succeeds with the following orders;

1. The caveat lodged by the Respondent, Mr. Kato Dungu Lennox Protese, on the certificate of title for land comprised in Mawokota Block 40, Plot 90 at Bujuko, be hereby vacated and/ or removed.

- 2. The Registrar of Titles is directed to remove and or vacate the said caveat lodged by the Respondent from land comprised in Mawokota Block 40, Plot 90 at Bujuko and effect the necessary changes. - 3. The Applicant is awarded general damages/compensation of UGX 5,000,000/= (Uganda Shillings Five Million for the inconvenience and prejudice caused by the Respondent's caveat. - 4. The Respondent shall bear the costs of this application.

Delivered at Mpigi this **18 th day of July, 2025**.

**Hon. LADY JUSTICE DEEPA VERMA**

**Acting Judge**