THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLENEOUS APPLICATION NO.2/93
YOKOBO NTATE MAYANJA::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT
SANYU LWANGA MUSOKE::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT
BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA
The background of this application is that the applicant wasthe Registered proprietor of the disputed property by virtue of instrument of transfer dated 16th November 1988 which transfer was registered on 2nd March 1989 as Instrument No.KLA 13372.
The applicant bought the said property from one Samwiri Galiwango here in after called the vendor who acquired the me as administrator the Estate of the late Mansa Nabaloga Galiwango (the vendor’s mother and the previous registered proprietor there of) which acquisition was by of an instrument of transfer dated 25th November 1988 registered on 30th November 1988 as Instrument No.KLA 132653.
The fact further showed that the vendor was the real and natural father of the respondent and the only son of Rev. Galiwango and Mrs. Mansa Nabaloga Galiwango. The said Mansa Nabaloga Galiwango now deceased made a will appointing Efulaimu Magala as one of the executors and the respondent who lives in Arusha in Tanzania and the grand daughter of late Mansa Galiwango was mentioned in the will as beneficiary and was bequeathed land at Namirembe comprised in plot 88. Then one Efulaimu Magala being one of the executors of Mansa Galiwango lodged a caveat on the said property on 14th/8/87. There was controversy however whether the caveat by Magala was removed or lapsed. The respondent meanwhile filed a civil suit against Galiwango Samwiri as a beneficiary mentioned in the will of the late Mansa seeking revocation of the letters of administration granted to Galiwango to the estate of the late Mansa and she sought the grant of probate of the will of the said Mansa. The civil suit was registered as H.C.C.S No. 309/87 and evidence shows that it is still pending in the High Court.
With that background I now proceed to consider the application. There was an affidavit deponed to by the applicant in support of the application and there was an affidavit in reply by the respondent and answer to the applicant.
The first ground for the application like the rest of the grounds were reflected in the affidavit of the applicant was that the applicant was still a bonafide purchaser for valuable consideration without any knowledge or notice of the respondents interest in the said property hence the applicant’s certificate of title relating to the property in question was protected under the provisions of the Registration of Titles Act cap 205 and case law.
The second ground was that the respondents’ caveat was registered on 29th December 1989 whereas the applicant’s transfer which is prior in date was registered on 2nd March 1989 free from the respondent’s or any other claim and or encumbrances.
And lastly that as bonafide purchaser the applicant was not and could not be made a party to any proceedings pending or intended to be filed before a court based on the alleged will the contents of which the applicant did not have any knowledge and was not supposed to know since a will is not a public document. I was addressed at length by the learned counsels and some authorities were cited in support of their submission. My role here is to find out whether there was sufficient evidence to warrant the removal of the caveat lodged on the suit property as provided by law see, RTA.
The applicant claims was a bonafide purchaser for value and as such protected by section 1889 of the Registration of Titles Act cap 205. Also provisions section 61 of the Registration of Titles Act is clear in that once a person is registered as proprietor of land his title is indefeasible except for fraud, see Kristofa Simba .V. Tokana 7 ULR quoted with approval in the case of Katarikawe .V. William Katwimu (deceased) Maria Nyamihanda administrator and Item and Another; while in Sempambadi .V. Kiiza and 4 others (HCB) Page 48 it was held that a bonafide purchaser of legal estate for value without notice has an absolute unqualified and unanswerable defence against the claims of any prior equitable owner. The onus of proof lies on the person setting it up where as section 184 (C) RTA provides:-
It is clear from the evidence onthis that notice of a caveator was sent to Efulaimu Magala through Ms. Mulira & Co. advocates informing him that the proprietor (the vender) of the registered property had applied for registration of the transfer which appeared to affect the estate or interest claimed by the said Efulaimu Magala. The notice urged the respondent’s advocate to go to the Hogh Court for an order delaying the registration by the Registrar of Titles.
He was given the statutory notice of 60 days as required by the RTA and the notice was dated 30th/11/88. Samwiri Galiwango was therefore justified in having the caveat lodged by Efulaimu Magala removed because M/S Mulira & Co. Advocates did not react to the notice. I dod not agree with the learned counsel for the respondent that no such notice was given. The mode of delivery of such notice could have been by post of by hand. I do not think such delivery necessitated the issuance of receipts as claimed by Miss Mulyagonja. I do not see any fraudulent dealing on the part of the applicant. He bought the sid property from Samwiri Galiwango and there was evidence that he made searches in the register of titles and there were no caveats incumbrances at the time he made the purchase of the said property. It is inconceivable that the applicant should have made some searches in the High Court or any other place where the dispute arose inorder to find out whether there was any dispute in connection with the said property in that the respondent had filed a civil suit No.309/87 against the vender (Samwiri Galiwango) her father. There was no such requirement in law since searches are carried out at the register of titles. And to strengthen my findings in this regard the applicant was not a party to HCCS No.309/87 which case was in my considered opinion between the respondent and the vendor. Therefore he had no knowledge about the existence of the said suit. The applicant was also not bound to make enquiries from the RCs of the area regarding the property in question because there was no such requirement in the Resistance Committee Statute which establishes the RC system.