Court name
HC: Land Division (Uganda)
Case number
Miscellaneous Cause 98 of 2017
Judgment date
17 July 2020

Mawejje Christopher v The Commissioner Land Registration (Miscellaneous Cause 98 of 2017) [2020] UGHCLD 79 (17 July 2020);

Cite this case
[2020] UGHCLD 79
Coram
Kazaarwe, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

LAND DIVISION

MISCELLANEOUS CAUSE NO. 98 of 2017

MAWEJJE CHRISTOPHER (JUNIOR)---------------------------- ----APPLICANT

(Administrator of the Estate of the Late Mawejje Christopher)

VERSUS

THE COMMISSIONER LAND REGISTRATION----------------RESPONDENT

Before: Hon. Lady Justice Olive Kazaarwe Mukwaya

RULING

This application was brought by Notice of Motion Under Articles 139(1) of the Constitution, Section 33 and 39 of the Judicature Act Cap 13, Sec 166, 167, 168   & 188 of the Registration of titles Act Cap 230, section 98 of the Civil Procedure Act Cap 71 and Order 52 rr1, 2 & 3 Civil Procedure Rules S.I 71-1 seeking for orders that;

  1. A vesting order be issued directing the Respondent to transfer the suit property comprised in Lease Hold Register Volume No. 972 Folio 12 Plot 351, Kyadondo Block 203, Kampala land at Kazo into the names of the Applicant.
  2. The Caveat which was lodged on the certificate of title to the suit property by the Late Blandina Nambi Mawejje be vacated.
  3. The respondent furnishes the Applicant with a special certificate of title to the suit property.
  4. Costs of this application.

Background

Mr. Christopher Mawejje, the Applicant in his affidavit in support of the application averred that he is Administrator of the Estate of the Late Mawejje Christopher Senior. A copy of the letter of Administration dated the 10th day of October 2011 is attached and marked “A”.

The late Mawejje Christopher Senior, purchased the suit property from one Yusuf Bwewusa Luzinda, now deceased. A copy of the sale agreement dated the 8th March, 1994 is attached and marked “B”. The purchaser immediately took possession of the suit property.

Mr. Yusuf Bwewusa Luzinda, the vendor died in 1998. At the time of his death he was still the registered proprietor of the suit property.

The applicant’s efforts to apply to the Registrar of Titles to vest the suit property into his names as the lawful Administrator of the Estate of the late Mawejje Christopher was unsuccessful and he was advised to make the application before this Court.

A caveat was lodged on the suit property by the late Blandina Nambi Mawejje, the Applicant’s biological mother to protect the Estate’s interest in the said land. A copy of the certificate of title is attached and marked “C”.

The respondent did not file an affidavit in reply but appeared in Court when the matter came up for hearing. He requested for time to file an up to date Search Statement on the suit property to establish the status of ownership. It was filed and indicated that the late Yusuf Bwewusa Luzinda is currently the registered proprietor having been registered on the 15th August 1977. The caveat lodged by Blandina Nambi Mawejje on the 25th July 1991 was also reflected.

Mr. Noah Kasumba, Counsel for the Applicant filed written submissions which I have considered.

Issues

  1. Whether the Applicant had presented sufficient grounds for issue of a Vesting Order?
  2. Whether the caveat on the suit property lodged by Blandina Nambi Mawejje should be vacated?
  3. Whether this Court should issue the Applicant with a Special Certificate of Title to the suit property?

 

RESOLUTION

Issue 1 and 2

Whether the Applicant had presented sufficient grounds for issue of a Vesting Order and whether the caveat on the suit property lodged by Blandina Nambi Mawejje should be vacated?

Under section 167 of the Registration of Titles Act, if it is proved to the satisfaction of the registrar (of titles) that land under the Act has been sold by the proprietor and the whole of the purchase money paid, and that the purchaser has or those claiming under the purchaser have entered or taken possession under the purchase and that entry and possession have been acquiesced in the vendor by his or her representatives, but that the transfer has never been executed by the vendor and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found, the registrar, may make a vesting order in the premises and may include in the order of direction for the payment of such an additional fee in respect  of assurance of title as he or she may think fit, and the registrar upon the payment of that additional fee, if any, shall effect the registration directed to be made by section 166, in the effect of the vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended by the same results as declared by section 166 in respect of the vesting orders made there.

In RE Ivan Mutaka (1980) HCB 27, Odoki, AJ, explained that the following circumstances must be proved;

  1. That there has been a sale of land
  2. That the land is registered under the Registration of Titles Act
  3. That the whole purchase price has been paid
  4. That the purchaser has taken possession
  5. That entry and possession has been acquiesced by the vendor and his representatives
  6. That a transfer had not been executed and cannot be obtained because the vendor is;
  • dead
  • out of jurisdiction
  • cannot be found

From the foregoing, the first condition is that there must be a sale of land. A copy of the sale agreement dated the 8th March, 1994 is attached and marked “B”. On its own, the document appeared legitimate. However, the caveat which was placed on the suit property, following the sale and supposedly the death of the purchaser, was lodged on the 25th July 1991. The caveat therefore preceded the sale by three years.

 

Conditions for lodging caveats under the Registration of Titles Act vary depending on circumstances. In the instant case, the Applicant averred in Paragraph 6 of his affidavit that the caveator was his biological mother and she lodged the caveat to protect the interests of his deceased father’s estate.

 

Section 139(1) of the Registration of Titles Act 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…may lodge a caveat with the registrar in the form in the Fifteenth Schedule to this Act….forbidding the registration of any person as transferee or proprietor of and 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.

If the caveator, is indeed deceased, the applicant did not provide satisfactory evidence to that effect. Section 41 of the Registration of Persons Act 2015 is to the effect that registration of death is free of charge and compulsory.

Nonetheless, the Applicant maintained that the caveator was his deceased biological mother. A family consent, dated 22nd August 2017 and marked annexure ‘D’ to the application was relied upon by the Applicant. He sought to prove that three beneficiaries of the estate of the late Christopher Mawejje, including himself, had agreed to release the caveat.

This Court is of the firm opinion that the sale agreement relied upon by the Applicant is not a genuine document. Its lack of authenticity lies in in the fact that the caveat dated 25th July 1991 was lodged before it was executed on the 8th March 1994. The caveator had no rights to protect within the suit property since the late purchaser had not yet acquired the suit property.

The applicant attempted unsuccessfully to draw a nexus between himself and the registered caveator in a bid possibly to deter the Court from making the necessary inquiries into the third party rights which the caveat sought to protect.

Section 141 of the Registration of Titles provides that no entry is to be made in the Register Book while the caveat continues in force. The exception to this provision is the written consent of the caveator to the intended changes in proprietorship or transfer. It is no wonder that the respondent declined to vacate the caveat and to register the suit property in the name of the Applicant.

I am satisfied that the Applicant has failed to establish sufficient grounds to justify the grant of a vesting order in the suit property and the vacation of the caveat lodged by Ms. Blandina Nambi Mawejje. Even if the Applicant were to provide evidence of the death of the caveator, and her relationship to the Applicant, the fact that the caveat was lodged before the sale of the suit property cast the whole application in a shady and suspicious light.

The success of Issue 3 was premised on the success of Issue 1 and 2 and since both have been answered in the negative, there is no basis for the consideration of this issue.

I hereby order that this Application is dismissed with costs to the respondent.

 

---------------------------------------

Olive Kazaarwe Mukwaya

Judge

17th July 2020

 

Delivered by email to Mr. Noah for the Applicant

                                   Mr. Moses Sekitto for the Respondent.