Ssemwezi v Namukasa & 2 Others (Miscellaneous Cause 33 of 2022) [2024] UGHC 285 (19 April 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS CAUSE NO. 33 OF 2022**

SSEMWEZI SUDHI \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

## **VERSUS**

- 1. NAMUKASA BETTY - 2. SSEKANDI LAWRENCE - 3. SSEKIZIYIVU BBOB :::::::::::::::::::::::::::::::::

## BEFORE HON, LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

- 1. This application was brought by Notice of Motion under the sections 140 (1), 142, 145 and 188 of the Registration of Titles Act, Cap. 230; section 98 of the Civil Procedure Act, Cap. 71 and Order 52 rules 1 & 2 of the Civil Procedure Rules, SI 71-1. The Applicant sought orders that the Respondents show cause why the caveat lodged on the Applicant's land comprised in Kyaggwe Block 336, Plot 134, land at Bulere should not lapse; the caveat lodged by the Respondents on the said land be removed; and the costs of the application be provided for. - 2. The application is supported by the affidavits of the Applicant and Ssebitosi Ibrahim deponed on 13<sup>th</sup> May, 2022. The grounds for the application are as follows that:

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- (a) the Applicant is the duly registered proprietor of all that land comprised in Kyaggwe Block 336, Plot 134 land at Bulere, having acquired it from the administrators of the estate of the late Fatuma Nampa; - (b)in early 2022, the Applicant discovered that the Respondents herein, without any claim of right, had lodged a caveat on his said land: - (c) the Applicant proceeded to the Land Registry at Mukono to make inquiries from the Registrar of Lands, and upon conducting a physical search on the file, discovered that the Respondents claim to have interest in his land as beneficiaries of the late Wilson Nsubuga, his late father: - (d) the Respondents claimed that the said land belongs to the family of the late Wilson Nsubuga, and that the Applicant registered it in his name: - (e) the Respondents further claimed that the Applicant carried out subdivisions on the land and intended to sell it; - (f) the Respondents' allegations set out in the caveat are false, with no ounce of truth: - (g) the said land does not and has never belonged to the estate of the late Wilson Nsubuga, the Applicant's late father, but belonged to the estate of the late Fatuma Nampa;

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- (h) by the time the Applicant received the land in 2018, his father Wilson Nsubuga had already passed on, having died in 2016; - (i) in or around 2018, the administrators of the late Fatuma Nampa, gifted the Applicant the suit land, sub-divided and it was transferred to him in $2019$ : - (i) the affidavit in support of the caveat contains falsehoods by stating that the 1<sup>st</sup> and 2<sup>nd</sup> Respondents are beneficiaries of the estate of the late Wilson Nsubuga, which they are not since they are not his biological children: - (k) the Applicant did not sub-divide the said land, but as the registered proprietor, he is entitled to enjoy all rights attendant thereto, the enjoyment of which the Respondents have now hindered with their illegal and unjustified actions; - (I) the land was never given to the late Wilson Nsubuga as alleged by the Respondents: - (m) despite having lodged the caveat, the Respondents have not taken any action to enforce their rights as claimed in the caveat, but have simply sat back, to the Applicant's inconvenience and detriment; - (n) the Respondents have no claim whatsoever to the suit land and are merely using the lodging of the caveat to frustrate the Applicant's

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possession of the land, having made several attempts to grab the same in vain:

- (o) the said caveat has and continues to interfere with quiet possession of the suit land and full enjoyment of the Applicant's rights as the registered owner thereof: - (p) the actions of the Respondents have caused the Applicant great inconvenience and stress for which he is entitled to compensation and that the Respondents should compensate him; and - (q) it is in the interest of justice that this application is allowed and the prayers sought therein. - 3. The application was never opposed by the Respondents despite effective service of court process, hence the hearing proceeded exparte. When the application was called up for hearing, Counsel Emmanuel Musinguzi from M/s Candia Advocates & Legal Consultants appeared for the Applicant. The Applicant's counsel filed written submissions which are considered in the determination of the application. - 4. The Applicant's counsel submitted that the Applicant is the registered proprietor of the land comprised in Kyaggwe Block 336, Plot 134, at Bulere, having acquired it from the administrators of the estate of the late Fatuma Nampa and this was evidenced by the attachment showing the Applicant as the owner of the land and the administrators

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of the said estate owning it previously. The Applicant's counsel submitted that the above evidence was corroborated by Ssebitosi Ibrahim, one of the said administrators of the late Fatuma Nampa who confirmed to court that the land was given to the Applicant as a relative of the late Nampa Fatuma not Wilson Nsubuga as alleged by the Respondents in their caveat.

- 5. Counsel further contended that the Respondents' allegation in their caveat that the suit land belongs to the estate of the late Nsubuga Wilson from whom they claim to derive interest is baseless and false. That the Applicant provided further evidence to prove that he acquired that land from the estate of the late Nampa Fatuma in 2018 and got registered as its owner in 2019, long after the death of the late Nsubuga Wilson, who died in 2016. - 6. The Applicant averred that the Respondents lodged the said caveat to interfere with the quiet possession of his land having made several attempts to grab it in vain. That it is clear from the evidence on record that the land in question belongs to the Applicant and that the late Wislon Nsubuga, from whom the Respondents claim to derive their interest is neither the owner nor has he ever owned the land. The Respondents have no interest or claim on the Applicant's land, and as such have no reasonable cause for lodging the said caveat. - 7. The Applicant prayed that this honourable court orders that the said caveat be removed and the Respondents pay compensation for lodging the caveat without lawful or reasonable cause, as is required

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by law. The Applicant's counsel argued that the Respondents have not taken any steps to enforce their alleged rights in the land, or to ensure that court determines whatever issue they may have with the Applicant's ownership of the land. Counsel argued that caveats are not meant to subsist in perpetuity but rather intended to offer temporary protection to the claimants pending proving their claims. Counsel cited the case of Ali Sidi Ngarukiye v. Muyonga Andrew Mubiru, High Court Misc. Cause No. 31 of 2018. Counsel prayed that the application be allowed.

## Issue: Whether the Respondents' caveat should be removed.

### **Court's consideration:**

8. Removal and lapse of caveats lodged on registered land is provided for under section 140 of the Registration of Titles Act, Cap. 230, which stipulates 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 deems fit."

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positive steps to handle the controversy, so as to determine the rights of the parties affected by its existence."

- $12$ In the instant case, it is shown by the Applicant's supporting affidavit that in early 2022, the Applicant discovered that the Respondents had lodged a caveat on his land comprised in Kyaggwe Block 336, Plot 134, land at Bulere claiming interest in the said land as beneficiaries of the late Wilson Nsubuga, his late father. The certificate of title attached to this application clearly shows that the 1<sup>st</sup> registered proprietors of the subject land were Ssebitosi Ibrahim, Masango Etibwa Ali and Namukasa Rose being the administrators of the Estate of late Fatuma Nampa. The said Administrators subsequently transferred ownership of the said land to the Applicant on 5<sup>th</sup> February. 2019 - 13. There is no evidence to show the type of interest the late Wilson Nsubuga had in the said land and why the Respondents have not filed an ordinary suit for court's determination of the parties' rights in the land in issue. I find that this is a proper case where court can judiciously exercise its inherent power under section 140 (1) of the Registration of Titles Act to vacate the caveat lodged and maintained for over 2 years since the Respondents have failed to show cause why the caveat lodged in 2022 should not be removed. - $14$ Therefore, this application is hereby granted with the following orders:

(a) the Commissioner Land Registration should remove or vacate the caveat lodged by the Respondents on land comprised in Kyaggwe Block 336, Plot 134, land at Bulere; and

(b) costs of this application are awarded to the Applicant.

No damages are awarded as there was no proof of loss by the Applicant.

I so rule and accordingly order. This ruling is delivered this ....................................


*In the presence of:*

(1) Mr. Ssemwezi Sudhi, the Applicant;

(2) Ms. Pauline Nakavuma, the Court Clerk.