Dr. Joseph Tindyebwa v Amiina Christine (Miscellaneous Cause 5 of 2023) [2025] UGHC 350 (10 April 2025)

5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE MISCELLANEOUS CAUSE NO. 0005 OF 2023 DR. JOSEPH TINDYEBWA::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT 10 VERSUS AMIINA CHRISTINE::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT BEFORE: HON. JUSTICE SAMUEL EMOKOR

RULING

The Applicant brings this application by Notice of Motion under Section 140 of 15 the Registration of Titles Act and Order 52 Rule 1 of the Civil Procedure Rules seeking Orders that the Respondent be summoned to attend Court to show cause why the caveat she lodged on the land block 177, Plot 25, Volume 2448, Folio 21, land at Hamurwa, Ndorwa on 16/05/2014 should not be lifted and that provision be made for costs.

- 20 The ground upon which this application is premised interalia is that the Applicant is the Administrator and joint owner of the land above and that the caveator is one of the beneficiaries of the said land but the beneficiaries had agreed to share the land and to this effect entered into a joint memorandum of understanding and the Respondent without any genuine reason or any step taken to challenge what 25 was agreed upon just filed the caveat silently without informing the Applicant - who is the Administrator and joint owner of the Suitland.

That all efforts to have the Respondent lift the caveat have been fruitless.

- 5 The application is supported by the affidavit of the Applicant who in the same expounds on the grounds on which this application is premised and in brief avers that: - a) That I know the caveator and she is the beneficiary of the land comprised in Block 117, Plot 25, Volume 2448, Folio 21 Land at Hamurwa, Ndorwa and 10 there are other five beneficiaries and I am the administrator of the said land. - b) The land was formerly registered in my names and those of my late mother Lilian Kazarwa the mother of the beneficiaries who are entitled to her share since 22/11/2004. - 15 c) That I recently carried out a search on the above mentioned plot, discovered that the Respondent had entered a caveat on the Plot and hence this application. - d) That after the death of Lilian Kazarwa, the beneficiaries sat and agreed that the land be shared amongst themselves and it was reduced into writing. - 20 e) That in reply to paragraph 6 of the statutory declaration attached to the caveat I wish to state that there was no trickery as the Respondent is alleging and the Respondent is relying on the memorandum of understanding however the said memorandum had a condition that I should be granted with Powers of Attorney. - 25 f) That in reply to paragraph 7, once my mother the late Lilian passed on the Powers of Attorney ceased to be legal and as such the memorandum could not be enforced.

- 5 g) That when the late Lilian Kazwara passed on I was appointed the Administrator of the Estate of the late Kazarwa Lilian and I distributed all her properties. - h) That I was informed by my lawyers which information I believe to be true that there is no survivorship in joint ownership and as such am the owner 10 of the registered property. - i) That the law allows me to retain the land alone after the demise of a joint owner, I wish to carry out my mother's wishes and distribute her share to the beneficiaries and return my share. - j) That it is from the above that the Applicant prays for a Notice to Show 15 Cause why the caveat should not be lifted and costs be provided.

The Respondent in her affidavit in reply avers that:

- a) That land comprised in LRV2448, Folio 21, Rubanda, Block 117, Plot 25 Land at Hamurwa formerly belonged to the late Lilian Kazarwa our mother who was the Administrator of the Estate of the late James Kazarwa, our late 20 father. - b) That the Applicant fraudulently and by trickery transferred the land in the names of our late mother and himself on 22/11/2004. - c) That when our later mother and us learnt about this fraudulent transfer she confronted the Applicant who apologized. - 25 d) That the Applicant and our late mother entered into a memorandum of understanding in which the Applicant committed himself to start the process of transferring back the land into the names of our late mother.

- 5 e) That the Applicant kept dodging around until our mother passed away in 2013. - f) That in 2014 we filed a petition for Letters of Administration and on the 08/04/2015 we obtained Letters of Administration for the Estate of the late Lilian Kazarwa. - 10 g) That the Applicant has never been a sole Administrator of the Estate and has been holding out as such and filing some documents alone with a lot of inaccuracies. - h) That I cannot remove the caveat until the Applicant has agreed to transfer the land to the joint Administrators and also share it with us equally. - 15 The Applicant filed an affidavit in rejoinder refuting the averments of the Respondent.

Representation.

The Applicant was represented by Messrs Bikangiso & Co. Advocates while Mujurizi & Tumwesigye Advocates appeared for the Respondent.

20 Counsel in this matter proceeded by way of written submissions.

Counsel for the Applicant raised two issues for determination as follows:

- 1) Whether the Respondent has a good cause to maintain the caveat on the land. - 2) Remedies available to the parties. - 25 It is the submission of Counsel for the Applicant that he is the registered proprietor of the Suitland together with his late mother Lilian Kazarwa and that

5 under Section 59 of the Registration of Titles Act possession of a certificate of title by a registered person is conclusive evidence of ownership of the land described therein. Counsel also relies on the decision in Rutungo Properties Ltd versus Linda Harriet Carrington and another CACA No. 0061 of 2010.

It is the contention of Counsel that the late Lilian Kazarwa after the death of her 10 husband distributed properties amongst her children leaving some exclusive properties for her personal use which included Plot 25, Block 117 on which the caveat was placed. That the late Lilian Kazarwa later gave the Applicant part of the caveated land to help him complete his education and as a result she transferred the title into both her names and that of the Applicant and the two 15 became joint owners.

It is the submission of Counsel for the Applicant that he did not employ any trickery in transferring the title into both their names and that the alleged memorandum of understanding has been over taken by events in that it has never been executed and now that Lilian Kazarwa is dead it cannot be executed and so

20 cannot be relied upon.

It is the argument of Counsel that the Respondent has not offered any explanation as to why the caveat should not be removed.

Counsel for the Respondent in his written submissions in reply contends that the Suit land constitutes the Estate of the late Lilian Kazarwa and as such is an 25 entitlement of all the 6 beneficiaries. Furthermore, that the Applicant admits in paragraph 4 of his affidavit that it was agreed upon by the beneficiaries that the property be shared amongst themselves.

- 5 To buttress his argument Counsel relies on the decision in Sentongo Produce versus Coffee Farmers Ltd and Mose Nakafuma Muyiisa HCMC No. 0690 of 1999 in which it was held that for a caveat to be valid the caveator must have a protectable interest legal or equitable to be protected by caveat otherwise the caveat would be invalid. - 10 Determination.

The onus in this application is on the Respondent to Show Cause why the caveat that she lodged on Block 117, Plot 25, Volume 2448, Folio 21 land at Hamurwa, Ndorwa on 16/05/2014 should not be lifted.

Section 139 (1) of the Registration of Titles Act provides:

- 15 *"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 un registered 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 may permit, forbidding the registration of any person as transferee* - 20 *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 instruction 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"*

The question that begs an answer here is whether the Respondent has a 25 caveatable interest over the property in issue.

5 It is not in dispute that the property that is the subject of this caveat was originally registered in the names of Lilian Kazarwa as the Administratrix of the Estate of the late James Kazarwa.

It is also not in dispute that on 22/11/2004 this property changed into the names of Lilian Kazarwa and Joseph Tindyebwa (present Applicant). The Respondent 10 casts suspicion on the manner in which this transfer was achieved and avers that it was achieved by fraud and trickery on the part of the Applicant.

It would appear to me that the Respondent's claim does have merit. The Applicant has failed to lay a proper foundation as to how his name got on to the certificate of title alongside that of his mother who initially appeared as an Administratrix

- 15 on the same but her status as the Administratrix of their father's Estate suddenly vanished upon inclusion of the Applicant. I am fortified in this position by annexure 'B' a memorandum of understanding in which the Applicant committed himself to start the process of transferring back the land into the names of his late mother. The Applicant does not dispute annexure 'B' but claims that it is of - 20 no legal consequence.

I beg to disagree with due respect to the Applicant's Counsel who argues that the Memorandum of Understanding is of no consequence. The expression of Lilian Kazarwa in annexure 'B' is clear and that is that the Applicant cannot claim exclusive ownership of the land in issue which she held in trust for her late 25 husband's Estate as its Administratrix.

The Respondent being a beneficiary of the Estate does have an interest in this property.

- 5 The averments of the Applicant in relation to the management of the Estate would appear at a glance to suggest that the Applicant is the sole Administrator of the Estate which could not be further from the truth. This Court vide Administration Cause No. 0002 of 2014 granted Letters of Administration to the Applicant and a one Tukahirwa Edith son and daughter respectively to the late Lilian Kazarwa. - 10 There is no mention of any joint decisions made concerning the Estate. The averments of the Respondent that she will remove her caveat only when the Applicant has agreed to transfer the land to the joint Administrators has merit basing on the conduct of the Applicant following his failure to comply with terms in the Memorandum of understanding in annexure 'B'. - 15 It is imperative to note that under Section 140 (2) of the Registration of Titles Act a caveat lodged by or on behalf of a beneficiary is protected from automatic removal after the expiration of 60 days.

In Nassaka versus Namsimbi HCMC No. 0031 of 2020 it was held that beneficiary caveats do not lapse unlike other caveats and the reason behind this 20 because interests of beneficiaries need to be protected.

The instant Respondent it is not in dispute is a beneficiary of the Estate of the late Lilian Kazarwa and she has clearly demonstrated that the deceased in annexure 'B' did not intend to give the Applicant exclusive ownership of the property comprised in Land Block 117, Plot 25, Volume 2448, Folio 21 Land at Hamurwa, 25 Ndorwa that she held in trust of the Estate of her husband James Kazarwa as Administratrix.

5 The Respondent I am sufficiently satisfied has shown sufficient cause as to why her caveat should not be lifted.

In the result the instant application fails and is hereby dismissed with costs to the Respondent.

Before me,

…………………………………….. Samuel Emokor

Judge 10/04/2025

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