[2012] UGHC 411

#### THE REPUBLIC OF UGANDA

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

#### CIVIL SUIT NO. 428 OF 2006

#### UGANDA MOTORS LTD ::::::::::PLAINTIFF

#### VERSUS

1. THE COMMISSIONER FOR LAND REGESTRATION 2. THE ATTORNEY GENERAL :::::::::::::::::::::::: DEFENDANTS BEFORE: HON JUSTICE V. F. MUSOKE-KIBUUKA.

#### JUDGEMENT

#### **INTRODUCTION:**

This is a statutory suit. It was brought by the plaintiff under section 183, of the Registration Of Titles Act, Cap. 239 (RTA). The plaintiff also cited sections 185 and 186, of the same Act. While section 185; may have some remote relevance to this case, it appears to court that section 186, had none at all at this level of a suit filed in court.

In this suit, the plaintiff seeks compensation against the defendants, in the form of special and general damages for its loss of the property comprising Kyaddondo, Block 232, Plot 1170, at Banda/Kireka, Wakiso District. The land measures 5.54 acres.

#### **FACTS:**

The plaintiff was registered as proprietor of Kyaddondo Block 232, Plot 1170, on 12^th January, 1988, vide instrument N. KLA 12809. On 13^th October, 1999, Directel (U) Ltd. sued the plaintiff, by way of a summary suit, for the recovery of Shs. $7,666,406/=$ as bills for directory and advertising services.

The plaintiff did not apply for leave to appear and defend the summary suit. The Deputy Registrar of the Civil Division entered a **default** judgment against the plaintiff in accordance with order 33 rule (3) Now Order 36 rule 3 (2)) of the Civil Procedure Rules The decretal sum was Shs. 8,746,545/=. On $30^{th}$ March, 2000, a

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warrant of attachment was issued for the attachment and sale of Block 232, Plot 1170, the suit property, in satisfaction of that decretal sum.

The land was sold on 2^nd May, 2000, to one Mwebaze Emmanuel at Shs. 30,000,000/=. He was registered on $16/06/2000$ , under instrument No. KLA 215781. Soon afterwards on 12/07/2000, Mwebaze transferred the land to another party by the name of Magume David, Kamusala under Instrument No. KLA 216522. in further alienation, Mugume David Kamusala also on 19/07/2000, transferred the land vide instrument KLA 216748. The part transferred is known as Block 232, Plot 1763. It was transferred to one Arthur Mukwatanise.

In an effort to recover the suit land the plaintiff inter alia, filed Misc. Application No. 922 of 2000 on 10^th July, 2000 challenging the earlier attachment and sale of the suit land. The parties to that application reached and filed a consent order under whose terms the plaintiff was re-registered as proprietor of the suit land. That was on 27/09/2001 vide instrument KLA 228976.

However, vide Misc. Application No. 62 of 2002, filed by Arthur Mukwatanise, Arach-Amoko, J, as she then was by way of review set aside the consent order dated 14/09/2000, issued in Misc. Application No. 922 of 2000, in respect of Block 232, Plot 1170 at Kireka and Banda.

While that game of ping pong was going on, the plaintiff on 12^th July, 2000. again in an effort to protect its interest in the suit land, presented a caveat against the title for block 232, plot 1170. The caveat was duly received by the registrar. It was registered as Instrument No. KLA/216515. The plaintiff received, from the registrar, an acknowledgment of having received the lodgment of the caveat as an incumbrance upon the title.

However, the registrar never actually registered that caveat neither as an incumbrance nor as Upon the certificate of title (White page) of a memorial in the Register Book. While the plaintiffs instruments was lodged at 10.10 a.m. the registrar went

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ahead and 12^th July, 2000 and was allocated instrument no. KLA 216515, the registrar kept it aside for some unknown reason. On the same day at 10.45 a.m., he registered instrument number, KLA 2165222, in favour of Mugume David. He also on the same day, at 10.45 am, vide instrument number 216521, he registered Arapundiwa Abraham. Both in relation to the same suit property. The registrar's action enabled the latter two instruments to supersede the plaintiff's instrument which was earlier both in lodgment and number.

#### PLEADINGS:-

Upon the above facts, the plaintiff seeks compensation from the defendant under the provisions of section 183 and of 185 of the RTA. The plaintiff's case is that the defendant's conduct resulted in it's loss of the suit property.

In the defence, the defendant disclaims liability. He pleaded that the non-registration of the caveat did not cause the plaintiff the loss of the suit land. He averred that by the time the plaintiff lodged the caveat, the suit land had long been sold off pursuant to a court order issued on 31^st March, 2000, in Civil Suit No. 1193 of The land had already been registered in the names of 1999. Emmanuel Mwebaze on 12^th June, 2000. The plaintiffs, therefore, had no. interest in it at all when it's caveat was presented.

#### **ISSUES:**

There were three issues that were agreed upon for determination

- (a) Whether The Registrar Of Titles Was, In The Circumstances, Justified In Not Registering The Plaintiff's Caveat; - b) whether The Plaintiff Is Entitled To Compensation. - c) What Remedies Are Available To The Paties?

#### First Issues:-

Section 139 (1) of the RTA permits a beneficiary or any person claiming any estate or interest in land, to lodge a caveat. Court agrees with learned counsel for the plaintiff that not only a

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registered proprietor may lodge a caveat but any person claiming interest in land may do so according to section 139 (4), of the RTA.

PW1, Mr. Opio Robert, who was at the time, in charge of the $\textsc{Kampala}\xspace$ milo office, at the Land Registry , testified that he knew of no reason at all why the plaintiffs caveat was not endorsed upon the certificate of title. According to him, it met all the requirements. Mr. Wamai Nakisari, whom PW1, said had handled the matter was never called as a witness in this case. In the absence of any explanation to the contrary, court must, in the circumstances, conclude that the registrar of titles was not justified in not registering the caveat pr esented to him by the plaintiff on 12^th July, 2001. The first issue is thus answered in the negative.

# Whether The Plaintiff Is Entitled To Compensation.

The plaintiff sought compensation pursuant to the provisions of sections 183 and 185, of the RTA. Both provisions are reproduced below:-

"183 Actions for recovery of damages may be brought against the Government.

Any person sustaining loss through any omission, mistake or misfeasance of the registrar or any other officer or clerk in the execution of their respective duties under this Act or by any error, omission or misdescription in any certificate of title or any entry or memorial in the register book or by the registration of any other person as proprietor, and who is barred by this Act from bringing an action of ejectment or other action for the recovery of the land, estate or interest, may in any case in which the remedy by action for recovery of damages as herein provided is inapplicable, bring an action against the government for recovery of damages; in estimating those damages however the value of all buildings and other improvements erected or made subsequently to the loss or deprivation shall be excluded.

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## 185 Persons sustaining loss may recover damages

a) Any person who has sustained or hereafter sustains any loss or damage in or by the exercise or supposed exercise by the registrar of any of the powers or duties conferred or imposed on him or her by this Act, and who has not been party or privy to the application or dealing in connection with which the powers was exercised, may notwithstanding sections 178 and 183, and without prejudice to the rights, of any of that person under those sections in the first instance and without any obligation to pursue the remedies provided by those sections, bring an action against the Government for recovery of damages.

b) Where the person referred to in subsection (1) has been party or privy to the application or dealing referred to in that subsection, he or she shall be at liberty to join the Government as codefendant in any action brought by him or her in respect of such loss or damage against any other person or persons who has or have been party or privy to that application or dealing.

It is clear to me, as stated earlier in this judgment, that the provisions of section 185, of the RTA, have no relevance to this suit. I take it that the plaintiff was merely acting by way of abundance of caution when it included section 185 of the RTA, as a basis for it's claim in this case. Section 1895 relates only to a person who has not been party or privy to the application or dealing in connection with which the registrar's power was exercised or not exercised. In the instant case, the plaintiff was a direct and active player. It was the applicant for lodgment of the

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caveat in question. The registrar did not exercise the power vested in hirn under the RTA to register caveats. 1-he plaintiff claims to have incurred loss as a result. The plaintiff's appropriate recourse ibs under section 183, of the RTA and not section 185, of that Act or bottr tfrcse setiors- This issue therefore, is restricted to rvhether the plaintiff is entitled to compensation under section 183, of the RTA.

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It is true that in order for any person to merit compensation under section 183, of the RTA, that person:

- a) must have sustained loss of land through any omission, mistake or misfeasance of the registrar or any other officer in the execution of their respective duties; - b) must be barred by the RTA from bringing an action of divestment or other action for the recovery of the land, estate or itlte?esq and - c) must not othen^rise have available to him or her the remedy for recovery of darrnges aclron.

The plaintiff's positon is that it lost the land comprising (yaddmdo, Efrrk)?Z, Plot Lt7O, owing b the registrar's failure to register the plaintiff's caveat on 12s July, 200-1. The defendant contends that the plaintiff lost the land when it was auctioned through a court order, vide civil suit No. 1193 of 1999 and it was sold to Emmanuel Mwebaze who got registered as proprietor of ttnt land The plaintiff\_ 4deed did\_recouer proprietorship of the suit property about three m8nths after the registrar's omission to register it's caveat. It subsequently lost the land again.

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Court must agree with the defendants submission in that regard. $\mathcal{L}$ A person cannot lose what that person does not own at the time the loss is alleged to have occurred. Just as the will known maxim goes, nemo dat quod non habet. Similarly, one cannot lose what belongs to another person at the time the loss is claimed to have occurred. The actual claim of the plaintiff centres upon $r$ mere possibility of reclaiming the land which it had already lost by the time it lodged the caveat. There is no certainty that the possibility would have positively materialized if the caveat duly registered.

Section 63 of the RTA provides that a certificate of title is excusive $\rightarrow$ evidence that the registered proprietor has a good and valid title to the land. As of 12^th July, 2001, Mwebaze was the registered proprietor of the suit property. The lodgment of a caveat only serves the purpose of maintaining the status quo pertaining at the time the caveat is lodged. It serves to put a halt to any aliniation or further alienation. A caveat cannot per se, confer or restore any proprietary interest in any land. Of course, it is argued on behalf of the plaintiff that the omission to register the caveat enabled third parties to get registered thus rendering it impossible for the plaintiff to recover the land from bona fide purchasers for value. But it is equally a fact that the plaintiff had not filed any suit for recovery of the suit land from Mwebaze by time it lodged the Caveat. Nor did it do so afterwards.

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The plaintiff did not lose the suit land only once. The record $\div$ shows that the plaintiff recovered the suit land and it got reinstated on the certificate of title on 27^th September 2001 as That was a few months after the omission by exhibit P2 shows.

-the regist.er to register the caveat. if the land was recovered by \* the plarntiff as described above, it appears to be unsustainable to argue that the omission by the register to register the plaintiff's Eveat deprled the plaintiff of lfre ability and potential to recover the suit land-

The plaintiff tinally lost the suit land. That second loss too arose, in the view rtf court, from a court order that cancelled the consent order which had been entered into by the plaintiff and M/S Directel (U) i.td. -]-his loss, in 1993, cannot be directly attributed to the registrar's failure to register the plaintiff's caveat on 12fr July, 200i.. In cou:tt view, it would be unfair to do so. There exists rrrl ascetainable nexus between the two events.

Cotrrl', upon the above reasons, answers the second issue in the ncirative as well. The plaintiff is not entitled to any compensation lrr:m Lhe Gova-runent under sectirrn 783, of the RTA because the lc,.s of il.'s land was due to couft orders and did not arise out of the onrission by the registrar of titles to re ster it's caveat even ttrotrgh that omission was not itself j

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Betause ttte ptai'r,titr has not pro/ed, upon the balance of probalrilities, that it sustained loss as a result of the registrar's orlrission to register itt caveat it is not entitled to the remedies sought vide the plaint.

,The phintjff's suit is dismissd.

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Court, in light of it's finding that the registrar of titles was not justified to omit registering the plaintiff's caveat, declines to award costs to the defendant. Each party shall meet own costs.

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V. F. Musoke-Kibuuka

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(Judge) 13.07.12

雪寺


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