Lukoma v Kizito & 3 Others (Miscellaneous Cause 115 of 2024) [2024] UGHCLD 228 (30 September 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISCELLANEOUS CAUSE NO. 115 OF 2024

LUKOMA JOSEPHINE NAKALIISA :::::::::::::::::

APPLICANT

(suing as an Administrator of the Estate of the late

Godfrey Lukoma Kiyaga Mubiru)

VERSUS

KIZITO NICHOLAS

NABAZIWA CHRISTINE

DENNIS SSEMUGOOMA ::::::::::::::: RESPONDENTS

COMMISSIONER LAND REGISTRATION

BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA

RULING

*Introduction*

1. Lukoma Josephine Nakalisa (Adminstrator of the Estate of the late Godfrey Lukoma Kiyaga Mubiru) hereinafter referred to as the applicant brought this

application against Kiziot Nicholas, Nabaziwa Christine, Dennis Semugooma, and the Commissioner Land Registration herein after referred to as the 1st,2nd,3rd and 4th respondent respectively for orders that;

- i) The Respondents should jointly show cause why the caveats lodged on the land comprised in Kyadondo Block 261 Plot1132 and 1133 land at Lukuli should not be removed and/or vacated. - ii) An Order directing the 4 Respondent to vacate and/or remove the Caveats lodged on the land comprised in Kyadondo Block 261 Plot 1132 and 1133 land at Lukuli. - iii) The costs of this application be provided for.

*The evidence;*

- 2. The application is supported by an affidavit deponed by Josephine Lukoma Nakalisa which briefly is as follows: - i) The Applicant is an Administrator of the Estate of the Late Godfrey Lukoma Kiyaga Mubiru vide Administration Cause No. 1418 of 2021. - ii) The Applicant purchased land measuring

approximately 25 decimals off Land comprised in Kyadondo Block 261 Plot 370 land at Lukuli on the 31st day of August, 2005 from the late Godfrey Lukoma Kiyaga Mubiru who was the Registered Proprietor before his demise.

- iii)The Late Godfrey Lukoma Kiyaga Mubiru after selling 25 decimals off his Land comprised in Kyadondo Block 261 Plot 370 land at Lukuli, he caused subdivisions and created two Plots to wit; Plots 1132 and 1133. - iv) The Late Godfrey Lukoma Kiyaga Mubiru after creating the said subdivisions, he immediately handed over the Certificate of Title for Plot 1133 to the Applicant as the owner. - v) The Applicant was shocked when she was informed that the Respondents had lodged Caveats on the Suit land.

3. The 1st, 2nd and 3rd respondents replied to the application by way of an affidavit in reply deponed by Nabaziwa Christine on behalf of the 1st and 3rd respondent and briefly states as follows:

- i) That the respondents are biological Children of the Late Godfrey Lukoma Kiyaga and were properly named as such in the application for letters of Administration. - ii) That the suit land is the entire residential holding of the Late Lukoma Kiyaga Godfrey which residential holding was formerly comprised in Plot 370 comprising of the residential building and the same status remains so to date after the subdivision. - iii)That had the respondent's late father truly sold part of the residential family home to the Applicant on behalf of her children then the deceased would have executed transfer forms in favor of the alleged buyers as far back as February 2021 when the Certificate of Title for Plot 1133 was issued or earlier in 2005 when the alleged sale agreement was made. - iv) That the purported sale agreement is fictitious in as far as it omits one of the applicant's children. - v) That the applicant was at all material times a house wife with no known source of income and there is no way she would have gotten Ugx 10,000,000/= to pay for the land.

4. The 4th respondent replied to the application by an affidavit in reply deposed by Sekabira Moses and briefly states as follows:

- i) That the 4th respondent registered a caveat lodged by Kizito Nicholas Nabaziwa Christine, Dennis Semugoona making reference to the documents presented by the applicants claiming that the property comprised in Kyadondo Block 261 Plots 1132 and 1133 land at Lukuli formed part of the estate of the late Godfrey Kiyaga. - ii) That the office of the Registrar was only exercising its statutory mandate as enshrined in the Registration of titles Act. - iii)That the office of the Registrar is duty bound to maintain the sanctity of the Register and Registration of caveats are temporary measures to prevent the estate from being wasted.

*Representation;*

5. The applicant was represented by Counsel Muhangi George and Sarah Nakabugo of M/S MBS Advocates and the 1st ,2nd and 3rd respondents were represented by

Counsel Nuwagaba Phiona of M/S Niwagaba Advoactes and solicitors and the 4th respondent was represented by Nakato Janat. Parties proceeded by way of written submissions which I have considered in the determination of this matter.

*Issues for determination;*

- i) Whether the respondents have a cause as to why their caveats should not be removed? - ii) What are the available remedies?

*Analysis by court;*

Issue 1: Whether the respondents have a cause as to why their caveats should not be removed?

6. Section 123(1) of the Registration of Titles Act provides that: "Caveat may be lodged and withdrawn *(1) Any beneficiary or other person claiming any estate or interest in land [...] may lodge a caveat with the registrar [...] 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 [...]"*

7. In the case of Nassaka v. Nansimbi (Misc Cause No. 31 of 2020) [2021] UGHCCD 201 (per Hon. Lady Justice Victoria Nakintu Nkwanga Katamba), it was held that:*"Beneficiary caveats ... do not lapse unlike other caveats and the reason behind this is because, interests of beneficiaries need to be protected. A court cannot simply issue an order vacating the caveat without sufficient reason, evidence and grounds warranting such vacation."*

8. In the instant case, it is not in contention that the 1st ,2nd and 3rd respondent lodged caveats on the suit land on the 3rd day of September 2021 on the suit-land. It is now 3 years since the caveators lodged the caveats and not taken any steps for their disputes to be determined in a court of law.

9. In the case of Hunter Investment Limited v Lwanyanga and Anor Misc Cause No 0034 of 2014 the court reiterated the cardinal rule that pervades all caveats as follows; *"Caveats 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."* 10. Be that as it may a caveat intends to protect interests and rights of parties in the suit land.

11. In light of the foregoing and in the interest of justice, this honorable court is of the view that the 1st ,2nd and 3rd respondents should bring an action within 40 days from the date of this ruling justifying the said caveat and failure to do so, this honorable court is to proceed and vacate the said caveat.

12. Parties should take note that caveats are temporary in nature, one cannot lodge a caveat over land and they don't take any action to justify the same since a caveat is a statutory injunction which affects the registered proprietor from dealing with the land.

13. In the premises, the application fails with the following orders;

- i) That the 1st,2nd and 3rd respondents file a suit justifying the said caveat within 40 days from the date of this ruling. - ii) That if the said order is not complied with, this

honorable court will proceed to vacate the said caveat.

iii) No orders as to costs

I SO ORDER.

NALUZZE AISHA BATALA

Ag. JUDGE

30th/09/2024

Delivered on the 30th of September, 2024

electronically via ECCMIS.