[2024] UGHC 271

#### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT MUKONO

#### MISC. APPLICATION NO. 53 OF 2023

AMUYERU MICHEAL::::::::::::::::: **APPLICANT**

#### **VERSUS**

#### 1. SERUWAGI GLORIA

**2. THADDEU SERUWAGI:::::::::::::::::::::::::::::::::::: BEFORE: HON. JUSTICE JACQUELINE MWONDHA-JUDGE**

#### **RULING**

This is a ruling in respect of an application to show cause why a caveat should not be vacated, brought under the provisions of Section 140 (1) & (2) of the Registration of Titles Act, Section 98 of the Civil Procedure Act Cap 71 and Order 52 Rule 1 and 3 of the Civil Procedure Rules SI 71-1 seeking for orders that;

- 1. That the 1st Respondent shows cause why the caveat lodged on land comprised in freehold register volume MK01322 folio 20 located at Mpoma which the Applicant purchased from the 2nd Respondent should not be vacated. - 2. That the 2nd Respondent shows cause why the Applicant should not have the suit property transferred into his name. - 3. Costs of the Application be borne by both Respondents.

# **Background of the application**

The Applicant Mr. Amuyeru Micheal (the Applicant herein) filed Misc. Wluradb 2024<br>OHIO412024

1 | Page

Application No.53/2023 against Seruwagi Gloria and Thaddeu Seruwagi (herein referred to as the 1^st & 2^nd Respondents) seeking above orders.

The Applicant averred and contended that on 9th September, 2022, the 2nd Respondent sold land comprised in FRV MKO1322 Folio 20 located at Mpoma (herein after referred to as the suit land), to him at a consideration of UGX. 100,000,000/= (Uganda Shillings One Hundred Million Shillings Only) which he paid in cash. That the 2nd Respondent handed to the Applicant all instruments of transfer and the duplicate certificate of title to enable the later process that is; a transfer into his name. That the Applicant later discovered that the 1st Respondent had caveated the suit land which barred him from effecting a transfer hence this application.

On the other hand, the 1^st Respondent contested the application on ground of want of spousal consent whereas the 2^nd Respondent contended that the transaction between him and the Applicant was not for sale but rather a credit facility agreement thus that the matter is a contentious one.

It is against this background that the Applicant Amuyeru Micheal brings this application seeking for orders that; the Respondents show cause why the caveat on the suit land should not be vacated, 2^nd Respondent to show cause why the Applicant should not have the suit land transferred in his names and costs of the application to be borne by the Respondents.

Blaubadk 2024

The application is supported by two affidavits of Mr. Amuyeru Micheal (the Applicant herein) one in support and another in rejoinder dated 17/10/2023 filed in Court on 19/10/2023 and another dated $13/02/2024$ filed in Court on $14/02/2024$ respectively and mainly contains five grounds namely;

- 1. That on $9/09/2022$ , the 2^nd Respondent sold the suit land to the Applicant for which the Applicant paid Ugx. 100,000,000/= as cash consideration. - 2. That the $2^{nd}$ Respondent handed to the Applicant all instruments transfer and a duplicate certificate of title to enable the later process a transfer into his names. - 3. That the Applicant later discovered that the 1^st Respondent had caveated his land which barred him from effecting transfer. - 4. That the Applicant believes that the $2^{nd}$ Respondent is using the 1^st Respondent who is his wife to frustrate the Applicant since the 2^nd Respondent at one point wanted to buy back land but failed to raise the money which the Applicant asked for. - 5. That it is in the interest of justice and fair that this Court grants this application.

### **Preliminary Objections.**

- That the application involves complex questions of law and/or $i.$ fact that merit adjudication at a full trial and cannot be heard and determined in the instant application and most importantly, involves a sale without spousal consent. - That the measure of the Applicant's claim and the orders sought ii. 10 leveralls 2024

3 | Page

by the Applicant contain matters that require oral evidence.

That the application is frivolous, vexatious and an abuse of iii. court process.

### **Legal Representation**

The Applicant was represented by $M/s$ Lukwago, Matovu & Co Advocates whereas the $1^{st}$ & $2^{nd}$ Respondents were jointly represented by PHLEB Associated Advocates and Redmond Associated Advocates.

#### The law

Section 140 (1) & (2) of the Registration of Titles Act provides for Notice of caveat to be given; lapse of caveat, etc. It is to the effect that, 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.

However, 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,

www.odlzozu<br>0410412024

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.

# The evidence

# Applicant's evidence

The Applicant averred and contended that on 9th September, 2022, he entered into a land sale agreement with the 2nd Respondent (husband of the 1^st Respondent) for land comprised in freehold Register Volume MKO1322 Folio 20 located on Kyaggwe Block 535 plot 59 at Mpoma (herein after referred to as the suit land) for a consideration of Ugx. 100,000,000/= which the Applicant paid in cash. That on the date the agreement was entered and payment made, the 2nd respondent handed to the Applicant a signed transfer Form which bore his Tax Identification Number, a copy of his National ID, his passport photograph and the duplicate certificate of title to enable the transfer to be effected.

Further, the Applicant contended that after a few months, the 2nd respondent started pestering him stating that he should allow him to buy back the land for himself, something which the Applicant objected to, given the fact that land appreciates in value, the Applicant required the 2^nd Respondent to pay double the amount for him to be able to resale to him the land. That the 2^nd Respondent stated that he would raise the money but failed. That after some time, the 2nd respondent started behaving funny whereby he started reporting to police in Mukono alleging that the Applicant together W hubardly lapart with some other people wanted to grab his land. That this raised suspicion that the $2^nd$ Respondent may carry out fraudulent dealings on the land & as a result he decided to check on its status with the land Registry at Mukono only to find out that the 1st respondent had lodged a caveat thereon claiming it to be family land whereas not.

The Applicant further contended that he carried out all the necessary due diligence on the property before he purchased the suit land and satisfied himself that the same belonged to the 2nd Respondent as a person and not subject to any third party claims whether legal or equitable. That the 1st Respondent's caveat was lodged in bad faith and the Applicant asserts that the same was engineered by the 2nd Respondent to frustrate the Applicant and thus the same should not be allowed to stand.

### 1^st & 2^nd Respondents' evidence.

On the other hand, the 1^st Respondent contested the application on ground of want of spousal consent whereas the 2^nd Respondent contended that the transaction between him and the Applicant was not for sale but rather a credit facility agreement thus that the matter is a contentious one.

The $1^{st}$ Respondent averred and contended that the caveat lodged on the suit land is as a result of her spousal interests in family land comprised in FRV 1322 Folio 20 Block 535 plot 59 Mpoma, where as a family, they derive a livelihood that is; that there is a banana plantation, cassava and paw paws. That the 1^st Respondent got to know of the application after the $2^nd$ Respondent shared the Hearing 104100lb 024 Notice on 28/01/2024 as she resides in Nairobi and immediately instructed her lawyers to take up the matter. That she has never been engineered by the 2nd Respondent to lodge a spousal caveat, thus that the same was lodged on her own to protect her legal and equitable interests in the suit land.

Further, the 1^st Respondent contended that she was advised by her lawyers that, other than a search at the land registry, no physical search was conducted by the Applicant to ascertain whether the suit land is family land or not, hence that the caveat was lodged in good faith whose intention was to protect family land from being alienated and or tampered with by any third parties who may later claim as bonafide purchasers for value without notice in the near future. That owing to the above, there is a possibility of the Applicant effecting a transfer in his names or to a third part at loss of the 1st respondent who has interests at law and equity as a spouse.

The 2^nd Respondent also contended that no sale was executed between him and the Applicant save for the Uganda Shillings One Hundred Million (100,000,000) that was extended by the Applicant to the 2nd Respondent as a friendly credit facility which he was supposed to pay on time as agreed but he was interrupted by Covid-19 as his investment did not reap as expected. That he has never handed over instruments of transfer of the suit land to the Applicant neither did he give him instructions to effect the transfer there of. That no single day has the 2nd Respondent ever used his wife to block/impede the Applicant on the suit land since there was no sale

18 Julion 12024

executed between the Applicant and the 2nd respondent.

More still, the $2^{nd}$ Respondent contended that the application is not supported by any material evidence that would warrant the grant of this application and that the same is based on material falsehoods advanced by the Applicant. This was brought to the attention of the Applicant. That the 2^nd Respondent has been advised his lawyers that the impugned sale agreement is flawed for reasons that:-The agreement is a mere misrepresentation of facts relating to the credit facility arrangement entered between the Applicant and the 2nd Respondent and is therefore not enforceable at law, that the only justifiable action rests in breach of contract regarding the credit facility arrangement of the advanced sums other than the impugned sale agreement, which is an afterthought, and abuse of court process, that the said sale agreement was signed by the 2nd Respondent who was placed under un due influence at the moment since he needed money to finance his construction projects, that the agreement is void from the onset since the land referred to is family land and that the 2nd Respondent could not execute a sale without spousal consent of the 1st respondent, that the application is anon starter and that the said sale agreement is tainted with unjust enrichment, unconscionable bargain and thus, un enforceable at law.

The 2^nd Respondent further contended that no valid transfer forms were handed over to the Applicant as the same does not disclose the value of the land and neither is it signed by the purchaser and any witness and thus inconsequential, it has no legal effect at law. That 1504/04/2024 owing to the foregoing, the Applicant has failed to plead facts within his pleadings, which constitute sufficient reason to warrant the grant of the Application and the prayers sought in the respective Affidavit in support are redundant, lack merit and are merely based on conjecture and fanciful reasoning other than being fair, just and equitable.

# Applicant's evidence in Rejoinder to the 1^st & 2^nd Respondents' affidavit in reply.

In Rejoinder, to the $1^{st}$ Respondent's reply, the Applicant contended that the land in question is not and has never been family land where the two respondents and their family derive sustenance as alleged. That like stated in her own affidavit (paragraph 4) the 1st respondent is an employed lady working with big international organizations and any claims that her family derives sustenance from the suit land are unsustainable. That it is not true that every property a spouse owns in their individual capacity can be termed as family land so as to bar the said spouse from disposing it off without the other spouse's consent.

Further, that for over a year now, the respondents have not set foot on the suit land and they don't know its current physical status but they have never failed to feed their family simply because they cannot access the suit land. That besides, the 1st Respondent has not moved any step to enforce her alleged right/ interest in the suit land since she lodged the caveat in February, 2023 thus that this is an indication of malice and bad faith in her move to lodge a caveat. 12 Julio 24<br>04/04/2024

$9$ | Page

In rejoinder to the 2^nd Respondent's affidavit in reply, the Applicant contended that it is not true that he extended a loan to the 2nd Respondent as alleged in his affidavit. That the arrangement they had is a sale for which he executed a sale agreement executed in his own hand willingly without any undue influence as alleged. That to effectuate his intention, the 2nd Respondent executed a transfer form in favor of the Applicant, provided his Tax Identification number and appended his signature on the copy of the ID he provided to me. That the Applicant's intention of buying the suit land was to resale it when it has gained more value and not to keep it. That it is for that reason why the 2nd respondent simply signed an open transfer form and that the Applicant was to fill in the details at a time when he feels the transfer should be effected. That besides, the 2nd respondent does not deny his signature on the said transfer form. That the Applicant carried out enough due diligence on the suit land and satisfied himself that the same belonged to the 2nd Respondent as a person and not subject to any equitable interest either by the wife or any other person.

#### **Submissions**

## Respondents' Joint Written Submissions in respect to the Preliminary Objections.

The Learned Counsel for the Respondents submitted that the objections raised are premised on 3 grounds that were raised at hearing and the same are brought under Order 6 Rule 28, 29 & 30 of the Civil Procedure Rules (as amended), Section 98 of the CPA, 90 Julio 4 12024 Section 33 of the Judicature Act Cap 13, Sections 38 A (4) & 39 of the Land Act and Section 177 of the RTA Cap 230 to wit;

- That the application involves complex questions of law and or fact $i$ that merit adjudication at a full trial and cannot be heard and determined in the instant application and most importantly, involves a sale without spousal consent. - *That the measure of the applicant's claim and the orders sought* ii. *by the applicant contain matters that require "oral" evidence* - *That the application is frivolous, vexatious and an abuse of court* iii. process.

In arguing the first objection, the Learned Counsel for the Respondents contended that the matter is contentious in nature owing to the fact that the suit property subject of the dispute is family land where there was no spousal consent obtained from the 1st respondent at the time of the impugned sale to the Applicant. That transacting without the 1^st respondent's spousal consent constituted an illegality in the face of the law. Counsel relied on Section 38 A (4) of the Land Act Cap 227 (As Amended) and the case of Laila Lubega Vs. Ali Lubega & DFCU Bank Ltd Civil Suit No.118 of 2010

It was therefore submitted for the Respondents that want of spousal consent and the subsequent illegality created by the impugned sale of land at Mpoma, FRV MKO 1322 Folio 20 are contentious matters of law that cannot be resolved through an application by a Notice of Motion, but rather by way of ordinary suit if the dispute is to be resolved to finality. The Learned Counsel directed court to the case

De410412024

## of **Mayanja Bosco Vs. Kasikururu Lois Okumu & Chris Katsigazi** $H. C. O. S No. 5/2008.$

The Learned Counsel for the Respondents further submitted that the orders sought in MA No. 53 of 2023 filed by the applicant are final and consequential orders that can only be sought under section 177 of the RTA Cap 230. That the orders sought involve vacating a caveat and effecting a transfer in the names of the Applicant, which will ordinarily cause cancellation of the name of the 2nd Respondent from the Duplicate certificate of title upon onward orders to the Commissioner Land Registration, which will prejudice the rights of the 1^st respondent (wife to the 2nd respondent) in the event orders/reliefs are granted. Counsel thus submitted that the application was wrongly brought before this Court by way of a notice of Motion instead of an ordinary suit and thus prayed that the same be dismissed with costs.

Regarding the second objection, the Learned Counsel for the Respondents further cited the case of Mayanja Bosco Versus Kasikururu Lois Okumu & Chris Katsigazi (Supra) and contended that attestation would require parties to lead evidence in that respect at full trial, rather than in the instant application. Counsel relied on Section 67 of the Evidence Act Cap 6 which is to the effect that; if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there is an attesting witness alive, and subject to the process of the court and capable of

es funditions 4

giving evidence". It was therefore submitted for the Respondents that the impugned Sale Agreement relied on by the Applicant was attested to by one Iga Peter, which makes it a matter of evidence for him to be present in a full trial rather than in the instant application.

The Learned Counsel for the Respondents thus submitted that in light of Section 67 of the Evidence Act Cap. 6, the absence of the attesting witness as a matter of evidence is fatal for this court to grant the reliefs sought by the applicant in this application. That it would therefore be hard to believe that the Sale Agreement/document relied on was a sale Agreement and that such can only be done in a full trial. They prayed that the application be dismissed on that ground as per the case of Safina Bakulimya & Anor. Vs. Yusuf Musa Wamala Civil Appeal No. 68 of 2007 UGHC 105

Further, it was submitted for the Respondents that the impugned transfer forms, upon which the applicant bases his claim that there was a sale, are not signed by the purchaser and nor were they signed by the wife to the 2nd Respondent and no stamp duty paid on the same. That transfer forms complete a transaction of sale if signed by the parties whose essence is to substantiate avalid sale. Counsel relied on the decision of **Deox Tibingana Vs. Mirembe Andrew** Tumwebaze (2020) HCT.

In arguing the last objection, the Learned Counsel for the Respondents submitted that abuse of court process involves the use of the process for an improper purpose or a purpose for which the process was not established. Counsel relied on the decision in 10 July 104/2024 Attorney General V James Mark Kamoga & Anor SCCA No. 8 of **2004.** He submitted that in this particular case, the abuse of court process lies in the filling of an application on matters that would have been best resolved by ordinary suit. That the Applicant acted in total abuse of court process by filing MA No. 53 of 2023 well knowing that the issues sought to be addressed by this court in the said application were matters that necessitate a full trial.

The Learned Counsel contended that the abuse of court process is envisaged when the Applicant seeking orders for vacating a caveat and allowing him to effect transfer of the suit property which invites court to order for cancellation of the 2nd Respondent from certificate of title, all of which can be done in ordinary suit and is an inference that it is a matter that requires full trial to resolve the dispute involved, the procedure adopted by the applicant of bringing the application seeking reliefs that would have been sought by ordinary suit is fatal and prayed that the application be dismissed and that the application seeks to dispose the Registered Proprietor whose title is indefeasible at law. Counsel relied on Section 59 and 64 of the RTA and the decision in **Patel Vs. Commissioner Land Registration &** Others HCCS No. 87 of 2009

It was submitted for the Respondents that the Applicant will not be prejudiced since he has a right to bring a fresh action against the respondents and prayed that Court finds that MA No.53/2023 is incompetent, frivolous and vexatious and an abuse of court process and can only be dismissed with costs. We so pray Your Lordship.

White 12024<br>04/04/2024

#### Applicant's Submissions in respect to the Preliminary Objections.

The Learned Counsel for the Applicant submitted that there are established procedure/ principles known to law which must be followed for caveats to be removed. That under the law, the primary objective of filing a caveat on any registered property is to give the caveator temporary protection and it is not the intention of the law that the caveator should relax and sit back for eternity without taking steps to handle the controversy so as to determine the rights of the parties affected by the existence of that caveat. That in essence, a caveat acts as a statutory injunction which fetters the affected person from dealing with their property until the controversy is determined and the caveat removed by court. Counsel relied on the case of Rutungu Properties Ltd v. Linda Harriet Carrington & Another, Civil Appeal No. 61 of 2010.

Counsel further submitted that it is settled law in the above case that it is the caveator who is obliged to take impromptu action by filing a suit against those he claims against. That under the law, it is not the duty of the caveatee to file an action against the caveator but the other way around. That the caveatee can only move court to summon the caveator to show cause why their caveat should not be removed and the known procedure under the law is by way of a notice of motion.

It was submitted for the Applicant that in the instant case, the Respondents are using their own negligence or inaction to stifle the hearing of the Applicants application. That they are seeking court's Blowards 12024<br>04/04/2024

15 | Page

help to perpetuate an injustice against the Applicant. That having filed a caveat on 10th February, 2023 on the suit land, the 1st Respondent was obliged under the law to file a civil suit against her husband and the Applicant herein in order to enforce her equitable rights as claimed in her affidavit. That it is over a year now and the said Caveator has not filed any suit to enforce her rights. That instead, she, together with her husband who sold the property to the Applicant are teaming up against the Applicant who is moving court to vacate the caveat stating that; it is the Applicant who must file a suit that would help her determine and enforce her claimed rights.

The Learned Counsel for the Applicant also submitted that when an application for removal of a caveat is filed in court, among the elements that the caveator must prove in order to maintain the caveat is the fact that they filed an ordinary suit timelessly against the caveatee in order to enforce their rights. He cited the case of **Rutungu** Properties Ltd v. Linda Harriet Carrington & Another (Supra).

He contended that Ironically, in the instant case the Respondents are instead saying that it should be the Applicant to file a suit. That they are using their own weakness to deny the Applicant justice which justice should be granted to him by removing a caveat on the property he purchased using his hard earned money. That if the respondents felt that there is so much in controversy that needs court's attention and determination, they wouldn't have waited until now for them to file a suit against the Applicant. That since they have not taken any steps in that direction, it is crystal clear that they are not interested

90 July 2024<br>04/04/2024 in pursuing their claimed rights instead they are only playing delaying tactics.

It was thus submitted for the Applicant that the application is properly before Court and the same should be heard on merits and that the Respondents' Objections holds no water and the same ought to be dismissed with costs.

## Respondents' submissions in Rejoinder to the Preliminary Objections.

In rejoinder to the Applicant's submissions, the Learned Counsel for the Respondents reiterated their earlier submissions and submitted that this Court is vested with un-fettered discretion to determine the objections as raised by the Respondents regarding the validity of MA No.53/2023. That in light of the fact that the matter is a contentious $\frac{1}{2}$ one which requires a full trial other than affidavit evidence and that in essence, it is one which require spousal consent, are not ordinary matters as the Applicant would want this court to believe.

Further, it was submitted for the Respondents that the title is in the names of the 2^nd Respondent and orders regarding transfer of the same in the names of the Applicant necessitates cancellation of the 2^nd Respondent from Certificate of Title which ordinarily requires the Applicant to take up the suit by ordinary plaint since such as sought in the application are consequential orders which can only be granted if the Court is moved under Section 177 of the RTA Cap 30. Counsel relied on the case of Park Royal Ltd Vs ULC & 3 Ors HCT Land Division Misc. Cause No.46/2014. That to avoid imputed notice in 10 by 10 4/2024

17 | Page

such transactions, one must not only search at the land registry but a physical search by visiting the land before any transaction of sale.

Counsel further submitted that in light of the affidavit evidence, Counsel for the Applicant was not the attesting witness and therefore cannot purport to be a witness. That the matter is fit for trial other than to be heard on an application irrespective of who the suing party is because in the absence of a witness who attested to the document as a matter of evidence, it would be stiff to believe that the impugned document relied on was a sale agreement. Counsel relied on the decision of Safina Bakulimya & Anor Vs Yusuf Musa Wamala Civil Appeal No.68/2007 UGCH 105.

It was also submitted for the Respondents that the Applicant acknowledges the fact that the $1^{st}$ Respondent would have instituted a suit to protect her interests in the long run and maintained that she is still not barred by the law of limitation to institute one. That their contention is that the instant dispute can only be resolved in a full trial irrespective of who takes up action against who; that justice is for all and cannot be served in anomaly. Counsel relied on **Article 126 (2) (a)** of the Constitution of the Republic of Uganda 1995, (as amended).

Counsel submitted for the Respondents that the Applicant's Counsel's submissions that the matter is fit to proceed by Notice of Motion is misplaced. That contentious matters like this one can only stand in the main suit for matters to be resolved and put to conclusion. That the Applicant cannot therefore mislead court;

Doubard 12024

otherwise the $1^{st}$ Respondent would not have lodged a caveat if she had no interest in the suit land.

Further, the Learned Counsel for the Respondents contended that the authority in Rutungu Investments Ltd as relied on by Counsel for the Applicant is distinguishable and of different facts compared to the instant application. That in the said case, the argument was that there were triable issues without evidence on record, whereas the instant application there are triable issues with manifest evidence by affidavit of the Applicant. Counsel cited paragraph 3 of the affidavit in support of the application.

## Determination.

After careful scrutiny of the evidence on record, the law applicable and the submissions of parties, it is trite law that the 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. This is the law under Section 140 (1) of the RTA (Supra). The Court also takes cognizance of the parties' submissions on record regarding the present application and I am grateful.

At the hearing, the learned Counsel for the Respondents raised three (3) Preliminary Objections in respect of the present application as stipulated in the fore pages of this ruling. Be it as it may, before I 10 lewords 24<br>04/04/2024

19 | Page

take leave to delve into the merits of this application, I shall proceed to analyze the Preliminary Objections raised by Counsel for the Respondents as seen here under and determine whether the same have merit.

Regarding the first objection, evidence has it that the Applicant Mr. Amuyeru Micheal brought this application among others, requiring the Respondents to show cause why the caveat on the suit land should not be vacated claiming that he purchased the suit land from the $2^{nd}$ Respondents on 9/09/2022 at a cash consideration of Ugx. 100,000,000/ $=$ . However, the 1^st Respondent contested the application on the basis of want of spousal consent whereas the $2^nd$ Respondent contended that the transaction between him and the Applicant was not for sale but rather a credit facility agreement.

In their submission, the Learned Counsel for the Respondents contended that the matter is contentious in nature owing to the fact that the suit property subject of the dispute is family land where there was no spousal consent obtained from the 1st respondent at the time of the impugned sale to the Applicant.

On the other hand, the Learned Counsel for the Applicant in contestation of the first objection submitted that it is the caveator who is obliged to take impromptu action by filing a suit against those he claims against. That under the law, it is not the duty of the

Www.dh 19924

caveatee to file an action against the caveator but the other way around. That the caveatee can only move court to summon the caveator to show cause why their caveat should not be removed and the known procedure under the law is by way of a notice of motion.

Being alive to the evidence on record and the submissions of parties in respect to the preliminary objections raised, I am in agreement with the Learned Counsel for the Respondents' submissions that the orders sought in MA No. 53 of 2023 (present application) filed by the applicant are final and consequential orders that can only be sought under section 177 of the RTA Cap 230. Further, that the orders sought involve vacating a caveat and effecting a transfer in the names of the Applicant, which will ordinarily cause cancellation of the name of the 2nd Respondent from the Duplicate certificate of title upon onward orders to the Commissioner Land Registration, which will prejudice the rights of the $1^{st}$ respondent (wife to the 2nd respondent) in the event orders/reliefs are granted. In the premises, I find merit in this objection and thus uphold the same.

In handling the 2^nd Objection, the Learned Counsel relied on Section Act (supra) and the decision of **Safina** 67 of the Evidence Bakulimya & Anor. Vs. Yusuf Musa Wamala(supra) and submitted for the Respondents that the impugned Sale Agreement relied on by the Applicant was attested to by one Iga Peter, which makes it a matter of evidence for him to be present in a full trial rather than in the instant application.

On the other hand, the Learned Counsel for the Applicant contended

Bloodla paget<br>04/04/2024

that if the respondents felt that there is so much in controversy that needs court's attention and determination, they wouldn't have waited until now for them to file a suit against the Applicant. That since they have not taken any steps in that direction, it is crystal clear that they are not interested in pursuing their claimed rights instead they are only playing delaying tactics.

In their rejoinder, Counsel relied on Article 126 (2) (a) and submitted that the Applicant acknowledges the fact that the 1^st Respondent would have instituted a suit to protect her interests in the long run and maintained that she is still not barred by the law of limitation to institute one. That their contention is that the instant dispute can only be resolved in a full trial irrespective of who takes up action against who; that justice is for all and cannot be served in anomaly.

With the above evidence in mind, it is imperative to take cognizance of the courts' inherent powers to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court. In the circumstances, I find merit in the second objection and therefore uphold the same.

Lastly, in resolving the third objection, Counsel relied on the decision in Attorney General V James Mark Kamoga & Anor SCCA No. 8 of 2004 where it was held that abuse of court process lies in the filling of an application on matters that would have been best resolved by ordinary suit. It was thus submitted for the Respondents that the Applicant acted in total abuse of court process by filing MA No. 53 of 2023 well knowing that the issues sought to be addressed

Whybrdls<br>04/04/2024

by this court in the said application were matters that necessitate a full trial.

On the other hand, the Learned Counsel for the Applicant relied on the case of **Rutungu Properties Ltd v. Linda Harriet Carrington & Another (supra),** and submitted that it is settled law in the above case that it is the caveator who is obliged to take impromptu action by filing a suit against those he claims against. That under the law, it is not the duty of the caveatee to file an action against the caveator but the other way around. That the caveatee can only move court to summon the caveator to show cause why their caveat should not be removed and the known procedure under the law is by way of a notice of motion.

In regard to the above, I didn't find abuse of court process on the part of the Applicant as the present application was properly filed before this court. In the circumstances, the third objection is therefore withheld for lack of merit.

Having found merit in the $1^{st}$ and $2^{nd}$ objections raised by the Learned Counsel for the Respondents, this court finds no reason to delve into the merits of the application but rather to dismiss the application as its trite law that a preliminary objection is one capable of disposing of the entire suit as per the decision in **Tororo Cement Vs Frokina** International (Civil Appeal No.2/2001) [2002],

In the premises, Court makes the following orders.

1. The $1^{st}$ & $2^{nd}$ objections raised by the Respondents are hereby

Whyto412024

upheld.

- 2. Application No.53/2023 is hereby dismissed. - 3. No order as to costs of the application.

I so order.

Dated at Mukono this....................................

Bleuondla. \_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ . . . . . . . . . . . . . . . . . . .

## JACQUELINE MWONDHA

**JUDGE**