Tumwine v Isingoma and Another (Misc Cause 131 of 2019) [2021] UGHCLD 476 (5 November 2021)

# o THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION)

### MISCELLANEOUS CAUSE NO.l3l of 2019

# TUMWINE PATRICK : : : : : : : : :: :: : : : : : : : : : : : :: : : : : : :: :: : : : : : : : : : : : : : ] : : : APPLICANT VERSUS

# I. FLORENCE ISINGOMA

2. COMMISSIONER, LAND REGISTRATION ::::::::::: RESPONDENTS

### BEFORE: HON. LADY JUSTICE CORNELIA KAKOOZA SABIITI

#### RULING

The Applicant is the Registered Proprietor of the Suit land and has brought this application under Section 98 of the Civil Procedure Act, Cap. 7l , Sections 140( I ), (2) and 142 of the Registration of Titles Act, Cap. 230 and Order 52 rules I ,2 and <sup>3</sup> of the Civit Procedure Rules SI 71-L), seeking the following orders;

a) The Respondents should show cause why the caveat lodged by the 1'1 Respondent 51612017 on the Certificate of Title of the land comprised in Leasehold Register Volume KCCA 180 Folio 2 Plot Number l5 Nakawa Division Block Blacklege Road, Kampala District under Instrument Number KCCA-00039393 should not lapse or be removed I vacated. ,\

> b) The Caveat lodged by the I'r Respondent on 51612017 on the land/Certificate of Title of the land comprised in the above description be removed/ vacated.

> > 1,

- c) The 1'1 Respondent pays compensation/ damages to the Applicant for lodging a Caveat on the Applicant's land/Certificate of Title for Leaseholtl Regisler Volume KCCA 180 Folio 2 Plot Number I5 Nakawo Division Blacklege Road, Kampala District. - d) The costs of this application be provided for.

o

The application is supported by the Applicant's affidavit wherein he deposed inter alia thal he is the registered proprietor and swears this affidavit in that capacity.

The Applicant averred that with effect from l'1 May, 2009, he was granted a39-year lease of the property Leasehold Register Volume KCCA 180 Folio 2 Plot Number l5 Nakawa Division Blacklege Road, Kampala District by Kampala District Land Board and thereafter a Certificate of Leasehold Title was issued in his name by the 2''d Respondent and has since the year 2009 been in actual physical possession ofthe land described above and Certificate of Title thereol-. A copy of the Certificate of Title was attached hereto as Annexure "A".

pala Capital City Authority who conducted a search in the Land Registry/Office t was discovered that the I'r Respondent from nowhere and without reasonable cause had lodged a caveat on my land which is described above under Instrument Number KCCA- 00039393. A copy of Search Certificate/Report was attached as Annexure "B". He further averred that during May,20l9, he commenced the process of developing his plans on the land which he submitted to the Director of Physical Planning,

He deponed that he carried out his own search at the Land Office in respect of the land from which he confirmed the existence ofa caveat on the land lodged by the I't Respondent and that the I't Respondent has no claim./interest whatsoever in the land and has emerged from nowhere with intentions to grab his land and to frustrate his developments thereon. He also averred that he has greatly been inconvenienced, lost business opportunities as a result ofthe lodgment ofthe caveat by the 1'' Respondent on his land and his construction plans in respect of the said land have not been approved due to the existence of the caveat on the suit land, the subject of this application.

The Applicant also added that the 1't Respondent lodged a caveat on his land without reasonable cause. That it is just, equitable and in the interest of justice that this application be granted and the caveat lodged by the I st Respondent on his land above described be vacated/ removed and the l'' Respondent pays compensation/ general damages to him.

The Respondents did not file any defence. It is trite law that the facts as adduced in affidavit evidence which are neither denied nor rebutted are presumed to be true. Eridadi Ahimbisibwe v Lltorld Food Programme fi998/ IV KALR 32

### Representation

a

The Applicant was represented by M/s Kusingura Tindyebwa & Co. Advocates Email: btindyebw yahoo.co. UK The Respondent was not represented.

#### Resolution

o

I have carefully read and considered the submissions by counsel for the Applicant, the details of which are on court record and contents of which I have taken into account in addressing the issue of whether or not the Applicant merits the prayers sought.

For a caveat to be valid, the caveator must have a protectable interest legal or equitable to be protected by the caveat otherwise the caveat would be invalid. (Sentongo Produce V Coffee Farmers Limiled & Anor vs Rose Nakafuma Muviisa HCMC 690/99),

It was never in dispute that the Applicant is the registered proprietor of the suit land and this is proved by the copy of the Certificate of Title which was attached and marked as Annexure "A" and is are entitled to benefit from the estate, unless and until the contrary is proved.

It is however noteworthy that the fact that the caveator has a caveatable interest does not in itself mean that he or she had a reasonable cause to lodge the caveat. (Hunter investments lttl vs Simon Lwanyanga & Another Miscellaneous Cause No,34 of 2012, See: Hooke vs Holland (1984) WAR 167).

to J. T. Mugambwa in his book 'Principals of Land Law in Pg. 86, the reasonableness or lack of it to lodge a caveat is a question of etermined 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 (Kuper & Kuper Vs Ll/est Construclion Pyt Ltd ( 1990) 3 WL 4 I 9. Conversely, that the t-act that the caveator has a caveatable

o interest does not by itsetf mean that he or she had a reasonable cause to lodge <sup>a</sup> caveat (Hooke Vs Holland (1984) WAR 167).

I am alive to the authority of Boynes Vs Gathure (1969) EA 385, that the one primary objective of a careat rs to give the caveator temporary protection. Therefore, it will not be equitable to allow the respondents to sit back and "twiddle their.fingers" for an undetermined .future to the detriment of the applicant who as a registered proprietor has indicated a need to put the land to good use

The 1't Respondent was served by substituted service and did not respond to the application. However, given that land matters are subject to fraud and the court requires diligence to make an informed decision, the Court made an order for the Commissioner Land Registration to avail a Search statement on the suit land as well as certified copies of the documents relating to the caveat lodged by the 1'r Respondent. From the Search Statement availed it is noted that there indeed exists a Caveat lodged by the l't Respondent on 5'r'June 2017 under Instrument No. KCCA 00039393.

Further, the affidavit attached to the Caveat is by the l't Respondent who is described as Florence Isingoma alias Maama Lillian. She refers to a civil suit No. 0009/20i7 by the Applicant against the 1'1 respondent (under her alias name) where judgment was in favour of the Applicant and a subsequent appeal Civil Appeal No.4912008 by the l" Respondent against the Applicant which judgment was in favour of the l'1 Respondent. The copy ofthe decree on appeal is dated I 3'h July 20 I 3. It is noted that the date of the caveat in2017 is four years after this decree of the High Court. It is very surprising that none ofthese pertinent facts were disclosed by the Applicant in


o this application and raise valid concems that the l'1 respondent may have reasonable cause to have lodged the caveat on the suit [and.

Given that it is not clear whether the appellate judgment of High court has been overtumed or set aside this couft of the opinion that any ruling affecting such a judgment is premature and misplaced. It is in the interest ofjustice that the claims of the Applicant and l't Respondent with regard to the suit land are confirmed and this requires the court to ascertain the status of the earlier judgment in favour of the <sup>l</sup>" Respondent.

I therefore disallow this application and instead order that the caveat lodged by the I'r Respondent in respect of on the Certificate of Title of the land comprised in Leasehold Register Volume KCCA 180 Folio 2 Plot Number 15 Nakawa Division Block Blacklege Road, Kampala District under Instrument Number KCCA-00039393 be maintained until the Applicant avails documentary evidence that the High Court judgment/decree on appeal by the l'1 Respondent was overtumed or set aside within a period of 30 days from the date of this ruling.

This application is dismissed with no order as to costs.

It is so ordered.

t

### CORNEI-IA K,{KOOZA SABIITI

JUDGE

Date: 5th Novernber 2021