[2024] UGHC 990


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-MC-0017-2024**

- **1. MATOVU NURU** - **2. NANSAMBA AIDAT OJANGOLE** - **3. NAKANWAGI HASIFA ----------------------------------------- APPLICANTS** - **4. NABUKENYA HADIJJA** - 10 **5. LUBEGA ABDU**

#### **VERSUS**

## **1. IGGA BASHIR**

# 15 **2. NAMATOVU SAUBA 3. NALUBEGA HALLLIMAH------------------------------------ RESPONDENTS 4. NANDAHURA FARIDAH**

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

## **RULING**

#### **REPRESENTATION**

The Applicants were represented by Adv. Peter Kabagambe from M/s Kwizera &

25 Co Advocates, while the Respondents were represented by Adv. Nkwasirwe Barnabus from M/s Bwatota Bashonga & Co Advocates.

#### **BACKGROUND**

The application was brought by way of a notice of motion under Sections 140 30 and 142 of the Registration of Titles Act CAP 230, Section 98 of the Civil Procedure Act, and Order 52 Rules 1 & 3 of the Civil Procedure Rules, and all enabling legal provisions.

The applicants seek orders that;

- 1) The Respondents show cause why their caveat lodged against the land measuring 28.0050 hectares comprised in Freehold Register Volume MBR 1466 Folio 11, Plot 36 Block 82 land at Kitabo, Nyabushozi, Kiruhura District - 5 should not be removed. - 2) The Respondents pay compensation/damages to the Applicants for lodging the aforesaid caveat without any lawful or reasonable cause. - 3) Costs be provided for. - The Application is supported by an affidavit affirmed by the 2nd 10 Applicant and was opposed by an affidavit in reply affirmed by the 1st Respondent on his behalf, and on behalf of the 2nd, 3rd and 4th Respondents. The 4 th Applicant - Ms. Nabukenya Hadijjah also deponed a supplementary affidavit in reply opposing the application. The 2nd Applicant filed an affidavit in rejoinder.

## **GROUNDS**

The grounds of the application as stated in the notice of motion are as following;

- 1. The Applicants are the administrators of the estate of the late Jamiru - 20 Lubega, the registered proprietor of the land measuring 28.0050 hectares comprised in Freehold Register Volume MBR 1466 Folio 11, Plot 36 Block 82 land at Kitabo, Nyabushozi, Kiruhura District. - 2. That the Respondents lodged a caveat upon the land comprised in Freehold Register Volume MBR 1466 Folio 11, Plot 36 Block 82 land at Kitabo,

Nyabushozi, Kiruhura District on 7th 25 November, 2023, which caveat was registered *vide* Instrument No. MBR-00074482 and as a result the administration of the estate of the late Jamiru Lubega has been frustrated.

- 3. That the Respondent's caveat ought to be removed. - 4. That it is in the interests of justice that the caveat is removed.

## **SUBMISSIONS**

The Applicants' submissions were filed on 5th August 2024, while the Respondents' submissions were filed on 3rd September 2024. The Applicants' submissions in rejoinder were filed on 12th September 2024.

#### **Applicants' submissions**

Counsel raised two issues for determination;

- 1. Whether the Respondents' caveat ought to be removed - 2. What remedies are available. - 5

## **Issue 1.**

Counsel submitted that the Respondents are beneficiaries to the estate of the late Jamiru Lubega, which is composed of 23 beneficiaries. That the deceased died intestate leaving the certificate of title in his names. Counsel argued that 10 as a result of the caveat lodged by the Respondents, the other 19 beneficiaries have not been able to access their portions of the estate and the same cannot be distributed with the caveat in place. It was also argued that the Respondents did not adduce evidence to prove that the land was given to them as a gift *inter vivos* by the deceased.

## **Issue 2.**

Counsel argued that Section 142 of the Registration of Titles Act entitles someone who sustained damage to compensation owing to a caveat lodged without reasonable cause. He stated that owing to the fact that the estate has

20 been exposed to waste due to inability to be administered by the Respondent's caveat, counsel prayed for damages worth UGX5,000,000/= (Uganda Shillings Five Million only). Counsel prayed for the Respondents' caveat to be removed with costs.

## 25 **Respondents' submissions**

Counsel contended that the Respondents have a caveatable interest in the suit land and that it was gifted to them by the late Lubega Jamiru in his lifetime, and they have since occupied it to date. Counsel added that there is no time limit for such caveats and that it was lodged in good faith. Counsel contended

30 that the damages prayed for by the Applicants are unjustified.

## **Applicants' submissions in rejoinder**

Counsel rejoined that a gift *inter vivos* cannot be proved by oral evidence, in support of this argument, he referred court to the authority in **OBBO ARAJAB**

35 **& ANOTHER VS WAAKO JAMES & 7 OTHERS CIVIL APPEAL No.59.** He prayed

for Court to disregard the Respondents' allegations and prayed that the application to be allowed.

## **DETERMINATION**.

- 5 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** - 10 The evidence of both parties on court record shows that it is not contested that the applicants were on 14th March 2023 appointed administrators of the estate of the late Lubega Jamilu (*see the Letters attached as annexture A to the affidavit in support*). The late Lubega Jamilu is the registered proprietor of the land comprised in Freehold Register Volume MBR 1466 Folio 11, Plot 36 Block 15 82, on which a caveat was lodged by the respondents. (*see paragraph 3 & 4 of* - *the affidavit in support and paragraph 6 & 9 of the affidavit in reply*).

The law in **SECTION 59 OF THE REGISTRATION OF TITLES ACT CAP 240** stipulates that a certificate of title of the suit land is conclusive proof of 20 ownership by the person named in the title. I have perused the certificate of title of land comprised in Freehold Register Volume MBR 1466 Folio 11, Plot 36 Block 82 which is attached as annexture B of the affidavit in support. I find that the late Jamiru Lubega was on 05/04/2023 registered as a proprietor meaning that the suit land is indeed in the names of the late Jamiru Lubega.

The law in **SECTION 176, 188 & 274 OF THE SUCCESSION ACT CAP 268** vests the property (land) of the deceased proprietor from the moment of his or her death in the court appointed administrators of the estate of the said late registered proprietor. This means that the applicants who are administrators of 30 the late Jamiru Lubega are the legal representatives of the late proprietor for all purposes. I therefore find that the administrators are duty bound to collect the land of the late Jamiru Lubega and where necessary file a suit on behalf of the estate as they have now done. This means that the applicants have locus to file

this application.

This application now before court was filed to challenge the caveat lodged by the respondents on the land of the late Jamiru Lubega. The evidence on court record shows that the respondents lodged a caveat on 7th November 2023 under Instrument Number MBR-00074482 on land comprised in comprised in 5 Freehold Register Volume MBR 1466 Folio 11, Plot 36 Block 82 land at Nyabushozi, Kiruhura District *(see the incumbrances page on the certificate of title attached as annexture B to the 2nd Applicant's affidavit in support*).

It is the contention of the respondents that the land comprised in Freehold 10 Register Volume MBR 1466 Folio 11, Plot 36 Block 82 was gifted to them by the late Jamiru Lugega while he was still alive. That he first gave the girls a piece of the land in 1996 and later gave the remaining piece of the suit land to Igga Bashir in 2000 as is averred in paragraph 8 & 10 of the 1st respondent's affidavit in reply. In essence the respondents are claiming the suit land as a gift *inter* 15 *vivos* from the late jamiru Lubega.

This court must interrogate whether the respondents received a gift *inter vivos* as they allege in their pleadings. The law in **SECTION 102 OF THE EVIDENCE ACT CAP 8** places the burden to prove on that person who would fail if 20 no evidence at all were given on either side, so the applicants have to show on court record that the suit land was given to them inter vivos, thereby justifying lodgement of the caveat.

The law is that a gift *inter vivos* takes effect when three conditions are fulfilled, 25 that is, there is intention to give the gift, the donor must deliver the property, and the donee must accept the gift. Hon. Lady Justice Percy Night Tuhaise J in determining **NASSOZI & ANOR Vs KALULE HCT CIVIL APPEAL NO. 05 OF 2012** held that

30 *"A gift of registered land becomes effective upon execution and delivery of the transfer. It cannot be recalled after that, even though the donee has not yet been registered as proprietor"*

I have perused the evidence on court record especially that of the respondent 35 and I find that the respondents did not attach to their application or affidavits

any document to prove their allegation that the late jamiru Lubega gave them a gift inter vivos.

I also note that since the suit land has a certificate of title with the late Jamiru 5 Lubega as a registered proprietor it means that delivery of the gift within the spirt of the holding in **NASSOZI & ANOR Vs KALULE HCT CIVIL APPEAL NO. 05 OF 2012** would have required the late Lubega Jamiru to execute for them a transfer form to ensure effective delivery of the gift of titled land inter vivos to the respondents. I am fortified in this reasoning by the fact that a transfer of 10 registered land is effected by the transferor signing transfer forms in favour of the transferee as is provided in **SECTION 91 OF THE REGISTRATION OF TITLES ACT CAP 240**. I therefore find that the respondents have not adduced evidence to prove that the late jamiru Lubega gave them the suit land as a gift inter vivos.

The question I now have to address is, whether the respondents had reasonable cause to lodge a caveat?.

It is trite that a person having an interest in land can lodge a caveat as is 20 provided in **SECTION 123 (1) OF THE REGISTRATION OF TITLES ACT CAP 240.** The evidence on court record contained in the caveat lodged by the respondents, which is attached as annexture C to the 2nd applicants' affidavit in support, shows that the respondents lodged the caveat on the suit land as owners having obtained it as a gift from the proprietor. The allegation that the 25 respondents received a gift inter vivos has not been proved. It means that the reason which the respondents based on to lodge the caveat on the suit land is not justified as it has not been proved on court record.

The applicants, who are also the administrators of the estate of the late Jamiru 30 Lubega are vested with the suit land since its registered in the late jamiru Lubega's name as is provided in **SECTION 176 OF THE SUCCESSION ACT CAP 268**. This means that the administrators cannot carry out their duties which commence with registration of the letters of administration on the suit land, while the respondent's caveat subsists. I am fortified in this reasoning by the holding in **ANNA MARIA NAKAMYA VS NTANDA PASCAL MISC CAUSE NO.14 OF 2017,** where Hon Justice Wilson Masalu Musene Held that

"*Administrators of an estate can only effectively distribute the estate to* 5 *beneficiaries, including the Respondents, if the caveat is lifted*"

I find that the respondents have not shown cause as to why the caveat should not be removed. This court ought to support the administrators of the estate of the late Jamiru Lubega in carrying out their duty of administration of the 10 estate. I therefore find that this is a befitting application for court to order that the caveat lodged by the respondents be vacated.

## **REMEDIES**

The High Court is vested with power to give remedies as is provided in **SECTION** 15 **37 OF THE JUDICATURE ACT CAP 16**, which states that

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

*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* 20 *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 controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of* 25 *those matters avoided"*

I notice that the applicants did not add the Commissioner Land Registration as a respondent in this application, yet it would have to be the same Commissioner Land Registration to vacate the caveat. I will thus make an order 30 to make it possible for the said Commissioner Land Registration to fulfil the order of court.

In conclusion, I order that

1. The caveat lodged by the Respondents on 7th November 2023 under 35 Instrument Number MBR-00074482 on the land comprised in Freehold

Register Volume MBR 1466 Folio 11, Plot 36 Block 82 at Nyabushozi in Kiruhura District is vacated.

- 2. The Commissioner Land Registration shall vacate the caveat of the respondents registered under Instrument Number MBR-00074482 on land comprised in Freehold Register Volume MBR 1466 Folio 11, Plot 36 Block 82 at Nyabushozi in Kiruhura District - 3. The respondents shall pay the applicant's costs of this application.

.............................

**NSHIMYE ALLAN PAUL M. JUDGE** 25-10-2024

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