[1993] UGHC 43

### THE REPUBLIC OF UGANDA'

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

## MlSC. CIVIL APPLICATION NO, 117 OF 1993

UGANDA COMMERCIAL BANK APPLICANT.

# VERSUS

REGISTRAR OF TITLES ..................... RESPONDENT. BEFOREs- The Honourable Mr. Justice J. W. N. Tsekooko

# ORDER

The applicant, Uganda Commercial Bank, instituted against the respondent Notice of Motion under Section 149 of the Registration of Titles Act and 0.48 Rule ¹ of the Civil Procedure Rules. By the motion the applicant prays that ''the respondent fce ordered not to remove the caveat registered as instrument No. 218552 of 9th April, 1984 on Plot Nos. 86-91 on land at Mutongo LRV 790 Folio 4,5,6,713 and 9tv« To the Notice of Motion was annexed affidavit sworn on 50th August, ¹⁹⁹³ by John K. Bagabirwa the Executive General Manager (Legal Affaire) of the applicant.

At the hearing, the applicant was represented by Mr. Kiboneka. The respondent^was represented by Mr\* Nyombi. Under S. 149, by Summons I understand it to be Chamber Summons and not Notice of Motion which was adopted here, Procedure was thus wrong. See the Case of Lone Vs. Patel /!?9687 EA'. 606.

The background to this application is set out in affidavit of Mr. Bagabirwa. The relevant paragraphs state

"3\* John Montmorency Ayres contracted with M/ST Multi-Constructors Ltd (hereinafter called the Company) to construct six houses on the land comprised in LRV 790 Folio. 3-10 known as Plot 86-92 at Mutunge\*.

4. That in consideration of the above John Montmerency allowed the company's workers to- occupy the houses without paying rent for a period of time.

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$5.$ That in 1969 the above said company issued a debenture to the applicant (UCB).

6. That the company failed to pay under the terms of the debenture and subsequently went into reccivership.

$7.$ The receivers and Managers sold the said lands to the applicant as they formed the security under the debenture".

The other parts of the affidavit and submissions show that the proprietor instituted HCCS No. 347 of 1991 against the applicants to recover the lands. On 26th November, 1991 Ntabgoba, P. J., dismissed the suit because it was time barred by virtue $\bullet\,\mathbf{f}$ . S. 6 of the Limitation Act. The registered proprietor filed an appeal against that dismissal order but he died on 9th September, 1992 before the appeal was heard. I am informed by counsel for. the applicant that he is seeking to have the appeal struck out because there is no appellant now.

On 9th April, 1984 the present applicants lodged caveat as indicated earlier. Although proprietor died on 9th September, 1992 and according to applicant's counsel there are no known agents of the deceased, M/S Katende, Ssempebwa & Co., Advocates, allegedly acted for the deceased and applied to the respondent under instrument No. 258288 dated 16th July, 1993 to issue notice to the applicants under S. 149 (2) (RTA) for removal of the caveat.

On 27th July, 1993 the respondent issued the requisite notice. Between 9th April, 1984 and 16th July, 1993 is about 9 years. One wonders why notice wasn't served earlier than now.

Be that as it may, Mr. Nyombi's submission ought to be disposed of first. In his view the respondent should not have been a party to these proceedings because the respondent has no registered interest in the property. That Section 149 does not require the Registrar to be made a party to this type of proceedings. He asked me to dismiss the application on that score.

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In my view if Mr. Nyombi'^s application succeeded, the proper order would be to strike out the respondent or the application but not to dismiss the application.

^A study of decided cases shows that in an application under S. 1^9 such as the present application it is prudent to make the Registrar of Titles a party whether alone or in addition to other parties depending on the facts of each application. See the case of Teja Singh Vs. Isher Singh /19577 EA. 655-

I therefore hold that the respondent was properly made a party.

In this application this was particularly so since if what is stated is correct there is now no obvious representative of the properietor. Normally legal representatives >•. \* u rf the deceased or whoever other lawful agents would be there should have been joined as respondents.

When making submissions learned counsel for the applicant read out the contents of the affidavit and the notice of motion. He submitted that removal of the caveat would not protect the interests of the applicant and the agents of the deceased proprietor will be free to deprive applicant of its interests without the protection of S. ¹⁴⁸ of RTA. Well since there is already a case in court, disposal of property by proprietor's agents would be foolhardy and highly risky.

In his view the dismissal of HCCS No. 47/91 effectively meant that the suit property vested in the applicant who now awaits transfer of the property in its name after disposal of appeal. This of course assumes that there won't be any legal representative who can by lav/ prosecute the appeal successfully.

There is no doubt that the applicant has equitable interests in the said property.

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"IF

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Further on the basis of submissions of Mr. Nyombi, the respondent does not actually challenge the purpose of the application.

Having considered the submissions before me, and upon perusal of the notice of motion and documents annexed therete and after consideration of the provisions of S. 149 of the RTA, and though I think that improper procedure was used in applying, I am satisfied that it is proper and disirable in the eircumstances of this case that the caveat lodged by the applicant be continued (delayed) pending the final disposal of the appeal filed in the Supreme Court by the late John Montmerency Ayres, the registered proprietor of the suit property or until further court order. The respondent (Registrar of Titles) is erdered accordingly.

I think that in this case each party should bear its

ewn costs.

J. W. N. TSEKOOKO

J U D G E $24/9/1993$ .

J U D G E $27/9/1993.$

$27/9/1993$ at 2.43 p.m.

Nyombi for respondent.

Ssensonga court clerk (She says she served both parties) Applicant absent.

Ruling delivered in presence of the above.

J. W. N. TSEKOOKO