THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(MISCELLANEOUS CAUSE NO. 52 OF 2020)
SULAIMAN MUKASA ---------------------------------------APPLICANT
PETER KASULE MPAGI ------------------------------- RESPONDENT
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
The Applicant brought this motion under section 140(1) and 142 of The Registration of Titles Act Cap 230, section 98 of the Civil Procedure Act Cap 71, section 33 & 34 of the Judicature Act Cap 13 and Order 52 rules 1 & 2 of the Civil Procedure Rules SI 71-1.
Orders sought are that;
- The Respondent should show cause why the caveat which he lodged on the Applicant’s land comprised in Leasehold Register Kyadondo Block 262 Plot 442 LRV 1803 Folio 20 situate at Makindye, should not lapse.
- The Respondent’s caveat be removed from the Applicant’s land.
- The Respondent compensates / pays damages to the Applicant for lodging the aforesaid caveat without lawful reasonable cause.
- Costs for the Application be met by the Respondent.
The Application is supported by the affidavit of the Applicant as well as a supplementary affidavit and based on the grounds that;
- The Applicant purchased the suit property comprised in Leasehold Register Kyadondo Block 262 Plot 442 LRV 1803 Folio 20, situate at Makindye- Kampala on the 29th December 1998. He was registered thereon on the 2nd March 2010. Attached is a certificate of title marked, ‘A’ and a sale of land agreement marked, ‘C’.
- The Applicant conducted a search in the land office and discovered that the Respondent had lodged a caveat vide Instrument Number KCCA00033597 on the suit property. A copy of the caveat dated 9th November 2016 is attached and marked, ‘B’.
- The Applicant sought to have the caveat removed but was advised that to do so, he required a Court Order since the Respondent had lodged the caveat in the capacity of a beneficiary claiming interest in a deceased estate.
- The Respondent has never taken any steps to have the controversy surrounding his alleged interest in the suit property determined.
- The Buganda Land Board on the 5th October 2016 cancelled deed variation mistakenly conducted on the suit property at the instance of the Respondent. A copy of the cancellation letter was attached and marked, ‘H’.
- A fresh deed of variation was issued by Buganda Land Board, in the Applicant’s favour on the 13th December 2019. A copy was attached and marked, ‘R1’.
- The Applicant has made several payments to the Buganda Land Board in support of the lease extension, but the Respondent’s caveat does not permit extension of the lease. Attached are copies of 6 receipts dated 12th May 2019 and 28th November 2019.
- The Applicant has suffered substantial loss and has been denied the opportunity to transact on his land.
- It is just, fair, equitable and in the interest of substantive justice that this application be granted.
- Samuel Kasule the Respondent’s deceased father, obtained a leasehold title for a 47-year period with effect from the 1st February 1989. A copy of the title was attached and marked, ‘A’.
- Following his father’s demise in 2011, the Respondent obtained letters of administration to his estate on the 10th October 2012. These were attached and marked ‘B’.
- In a bid to regularize the position of the suit title, the Respondent wrote to the Buganda Land Board and received a reply on the 2nd September 2016 to the effect that the late Samuel Kasule was the registered proprietor on the suit land. Attached is a copy of the response marked, ‘C1’.
- Up until 2016, the Buganda Land Board recognized the late Samuel Kasule as proprietor to the suit property. Demand notice for ground rent issued to the Respondent dated 30th September 2016 was attached and marked, ‘D’.
- In 2016, the Respondent discovered that the suit property had been dealt with indiscreetly by persons’ unknown to him and they were in physical occupation of the land.
- An attempt was made by Pauline Nyamikano and Benjamin Matojo W.K to fraudulently change the proprietorship of the suit property but the late Samuel Kasule was able to get registered back on the property. A copy of the Notice to amend the register book was attached and marked, ‘E’.
- The Respondent’s visit to the Kampala Capital City Authority and a system’s search revealed that the lease proprietorship had unlawfully been transferred to the Applicant on the 2nd March 2000 during the subsistence of the late Samuel Kasule’s lease.
- As a result, the Respondent lodged the caveat on the suit property in 2016 which was lodged as an encumbrance.
- The Applicant has no locus standi to make the application to remove the caveat.
- The Respondent is in the process of filing a suit in the matter to stop the Applicant from disposing of the suit property.
Counsel for the Applicant and the Respondent filed written submissions which I have taken into consideration.
Whether the Applicant has established sufficient grounds for the lifting of the caveat lodged by the Respondent on the suit property?
Section 139(1) of the Registration of Titles Act Cap 230, provides as follows;
‘Any beneficiary or other person claiming any estate or interest in land under the operation of this Act or in any lease or mortgage under any unregistered instrument or by devolution in law or otherwise may lodge a caveat with the registrar in the form in the Fifteenth Schedule to this Act or as near to that as circumstances permit, forbidding the registration of any person as transferee or proprietor of any instrument affecting that estate or interest until after notice of the intended registration or dealing is given to the caveator, or unless the instrument is expressed to be subject to the claim of the caveator as is required in the caveat, or unless the caveator consents in writing to the registration.’
A perusal of the caveat, dated 9th November 2016, indicates that Mr. Peter Kasule Mpagi lodged it in his capacity as heir, beneficiary and holder of letters of administration to the estate of the late Samuel Kasule Mukoloboza (deceased) who, according to the Respondent, died sometime in 2011. Mr. Mpagi avers that the deceased’s lease of 47 years, effective 1989, is still running and fraudulent dealings on the suit property account for the Applicant’s current registration as proprietor.
The Applicant averred that he acquired the suit property by way of purchase and attached a sale agreement dated 29th December 1998 between himself and one Pauline Nyamikano Matogo as proof of purchase. Consideration was UGX 40,000,000/=. A certificate of title to the suit property indicates that the Applicant was registered as proprietor on the 2nd March 2000. He has been in occupation of the suit property ever since.
The Respondent averred that when he physically visited Kampala City Council in 2012 his deceased father was still the registered proprietor on the suit property. This averment was not supported by any documentary evidence.
In 1993, the suit land became vested in the Kabaka of Buganda by virtue of the Traditional Rulers (Restitution of Assets and Properties) Act Cap 247. The Buganda Land Board therefore took over management from the Kampala City Council. There is a search report on the suit property from the BLB to the Respondent dated 2nd February 2016. It was attached to the Affidavit in Reply and marked, ‘C1’. It confirms that title was granted for 47 years in the name of Kasule Samuel Mukoloboza. Further, letters of administration granted to the Respondent are attached to the suit property file. A deed of variation made between the Kabaka of Buganda and the Respondent is also mentioned in the report, without giving the details of the variation. The only encumbrances listed on the file are ground rent arrears of UGX 750, 640/=. The report concludes by stating; ‘People are the true owners of this property’. As a foot note, there is a disclaimer that the accuracy of the report is not guaranteed. On the 15th November 2016 the Respondent made a payment of UGX 650,640/= to the BLB being payment for Ground Rent and Variation fees.
The Respondent added that his deceased father’s name was fraudulently cancelled from the suit property as registered proprietor by two persons, Benjamin Matogo W.K and Pauline Nyamikamo. He attached an Amendment of Register Book dated 26th November 1998 authored by Jonathan N. Tibisaasa, Commissioner Land Registration, where it was directed that Mr. Samuel Kasule be reinstated pending presentation of appropriate documents by Mrs. P.N Matogo.
Basing on the foregoing transactions, the Counsel for the Respondent invited Court to find that the Respondent had rightfully lodged the caveat. He was in the process of filing a suit and interlocutory applications to reclaim the suit property which was fraudulently acquired by the Applicant.
The Applicant maintained that he had acquired good title to the suit property during the lifetime of the Respondent’s deceased father. By the time Mr. Samuel Kasule died the Applicant had been in occupation of the suit property and resided thereon for 11 years. He acquired the suit property from Ms. Pauline Nyamikamo by way of purchase.
In rebuttal of the allegations of fraud the Applicant averred as follows;
- Amendment of the Register
Ms. Pauline Nyamikamo corrected the mistakes on the title and was registered on the suit property on the 23rd December 1998. She entered into a sale agreement with the Applicant on the 29th December 1998 and he was registered thereon on the 2nd March 2000. He has been in occupation ever since.
- BLB recognition of the late Mr. Samuel Kasule as registered proprietor up until 2016
The Applicant pointed out that BLB, in a letter dated 4th October 2016, acknowledged the deed of variation which BLB had executed on the suit property, in favour of the Respondent, had been carried out in error and had been recalled for cancellation.
The foregoing averments were unrefuted by the Respondent. To add to that, there is no evidence that the Respondent’s deceased father was ever in physical possession of the suit property after the 8th December 1989 when Benjamin Matogo and Pauline Nyamikamo Matogo were registered thereon as tenants in common. The Respondent averred that he first found out that his deceased father was registered proprietor in 2012, supposedly after he obtained letters of administration to the deceased’s estate on the 10th October 2012. Why did he not lodge the caveat then? And having found out that about the proprietorship, why did he not visit the suit property to ascertain the status quo?
The Buganda Land Board pronounced itself on the matter of proprietorship in a letter dated 5th October 2016 to the Registrar of Titles in the Ministry of Lands, Housing and Urban Development. Attached to the affidavit in support and marked, ‘H’. Owing to its importance, I shall reproduce the relevant section here below;
‘A variation deed regarding the aforementioned land, situate at Makindye and dated 18th November 2015 was executed between the Kabaka of Buganda as the lessor and Kasule Peter Mpagi (Administrator of the Estate of the Late Samuel Kasule) as the lessee.
The lessor was oblivious of the fact that Kasule’s late father had since transferred the same to Pauline Nyamikamo who later transferred to Sulaiman Mukasa. This was brought to our attention after receiving a complaint from Mr. Sulaiman Mukasa’s lawyers.
This serves as a request to cancel any documents lodged by the said Kasule Peter Mpagi regarding the aforementioned land.
By copy of this letter Mr. Kasule is directed to return the variation deed for cancellation.’
To reinforce their position on proprietorship of the suit property, the BLB went ahead to execute a variation deed in the Applicant’s favour on the 22nd November 2019.
There is no doubt in this Court’s mind that the Respondent was aware of the decision of the BLB on this matter. He was copied in the correspondence for purposes of effecting the cancellation of the variation deed. Instead, he lodged the caveat on the 9th November 2016, 34 days later. These were the actions of a man dead set on having his own way in the glaring light of the unfavourable facts and evidence that had been laid bare before him. Having lodged the caveat, the Respondent took no action.
It is trite law that caveats were never intended to be a lifetime remedy. See Boynes v Gathure (1969) EA 385. They are characteristically temporal in nature. An interim protection for the caveator to allow the status quo on the suit land to be maintained as the concerns of the caveator are addressed through the various avenues available. The Respondent therefore abused the caveat remedy by failing to take the necessary steps to have the matter resolved in a timely manner. Four years was an inordinately long time.
Section 64 of the Registration of Titles Act is to the effect that the estate of a registered proprietor is paramount. Any other interest in the estate, except for fraud, shall be ineffective. It was therefore incumbent upon the Respondent to rebut the Applicant’s assertion that he received a clean title and the purchase was legitimate.
This Court finds that the Respondent failed to prove fraud on the part of the Applicant. There is no just cause why the caveat should be maintained.
On remedies, Counsel for the Applicant submitted that the Applicant was entitled to general damages of UGX 50,000,000/= for inconvenience caused by the Respondent’s actions. I agree that four years of having the caveat lodged on the title restricted the Applicant’s use of the land. I am of the opinion that a sum of UGX 12,000,000/= shall suffice as general damages.
In conclusion, I allow the application and order as follows;
- The Caveat lodged by the Respondent on the Applicant’s land comprised in Leasehold Register Kyadondo Block 262 Plot 442 LRV 1803 Folio 20 situate at Makindye is removed.
- The Respondent shall pay to the Applicant general damages of UGX 12,000,000/=
- Costs of the application are awarded to the Applicant.
Olive Kazaarwe Mukwaya
27th August 2020
Delivered by email to:
-Mr. George Muhangi and Mr. Edward Mukwaya for the Applicant
-M/s Capital Law Partner & Advocates for the respondent.