Removal of Caveat

THE APPLICANT’S FINAL SUBMISSIONS

The facts leading to the above application briefly state that;
The applicant bought a piece of land Comprised in Kyaggwe Block 97 Plot 1801, Land at Mpoma from a one X and accordingly transferred the title into its names under Instrument No. MKO-00024383 on the 12th day of January 2016.

The 1st respondent for reasons that are not known to the applicant caveated the land on the 18th day of January 2017 under Instrument No. MKO-00037697.

Through its Lawyers- Ms. Baruga Associated Advocates the applicant applied for removal of the Caveat and on the 13th day of June 2017, the said application was well received by the 2nd Respondent’s Mukono MZO. However, the said caveat was never removed hence prompting this application to this Honourable Court.

Hearing/Pleadings

The applicant filed an application by way of Notice of Motion brought under Section 98 of the Civil Procedure Act, Sections 140(1), 142, 145, 188 of the Registration of Titles Act and Order 52 rules 1-3 of the Civil Procedure Rules SI. 71-1 against the respondents for orders that the respondents show cause why the caveat they lodged on the applicant’s land should not lapse/be removed, the 2nd Respondent removes the caveat by the 1st Respondent from the Applicant’s land, the 1st Respondent pays compensation/ damages to the applicant for lodging a caveat on the applicants land without reasonable cause and the respondents pay the applicant’s costs of the application. The application was supported by an affidavit sworn by the applicant’s Director Mr. Y. However, the respondents did not file their affidavits in reply and the application was heard ex parte.

The legal issues involved include;

1. Whether or not the 1st applicant had any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.

2. Whether or not the 2nd respondent should remove the caveat lodged by the 1st respondent from the applicant’s land.

3. Whether or not the applicant is entitled to compensation/ damages from the 1st respondent for lodging a caveat on her land without reasonable cause.

4. Whether or not the applicant is entitled to Costs.

Resolution of issues

Issue 1:  Whether or not the 1st applicant had any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.
The Black's Law Dictionary (8th ed. 2004) at page 666 defines a caveat to mean a warning or proviso. It goes on to state that this has to be legal or equitable interest that is protectable by way of lodging a caveat

In the suit of Hooke Vs Holland (1984) WAR 167; it was stated that “the fact that the caveator has a caveatable interest does not by itself mean that he or she had a reasonable cause to lodge a caveat.”

In the case of Sentongo Produce  & Coffee Farmers Ltd Vs Rose Nakafuma HCMC 690/99 it was held that for a caveat to be valid, the cavetor must have an interest legal or equitable to be protected. 

It is our considered opinion that the 1st respondent did not have any legal or equitable interest that warranted him to lodge a caveat on the applicant’s land. First in paragraph 2 of the affidavit in support of the Notice of Motion sworn by the applicant’s director it was clearly stated that the applicant being a company bought a piece of land Comprised in Kyaggwe Block 97 Plot 1801, Land at Mpoma from a one X and accordingly transferred the title into its names under Instrument No. MKO-00024383 on the 12th January 2016. It is rather interesting that at the time when the company bought this land it was free of any encumbrance and the 1st applicant’s name was not mentioned in the history of ownership of this land. We wonder why the 1st respondent had to illegally lodge this caveat at the time when the applicant bought.

Secondly, while the applicant labored to effect service of the application on the 1st respondent for two times. The 1st respondent did not mind to put in his defense until when Court decided to proceed ex parte. To us conduct of the 1st respondent is apparent of some one who without justifiable reason lodged a caveat on the applicant’s land. The 1st respondent was accorded reasonable and a just opportunity to prove to this court that he holds a legal/equitable interest in the applicant’s land which he put to waste. Such an abuse of Court’s time should indeed work to the detriment of the 1st respondent.  In the premises we pray that Court finds that the 1st respondent did not have any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat.

Issue 2: Whether or not the 2nd respondent should remove the caveat lodged by the 1st respondent from the applicant’s land.
Having proved to this honourable Court in Issue 1 that the 1st respondent did not have any legal/equitable interest in the applicant’s land that could only be secured by lodging a caveat, it then follows that the 2nd respondent was wrong to register it. Furthermore the 2nd respondent did not show cause why the caveat lodged by 1st respondent should not lapse/be removed. We therefore pray that this Honourable Court orders the 2nd respondent to remove the caveat lodged by the 1st respondent.

Issue 3: Whether or not the applicant is entitled to compensation/ damages from the 1st respondent for lodging a caveat on her land without reasonable cause.
Order VII rule 7, of the Civil Procedure Rules SI 71-1, states that general damages may be awarded by court where court finds it appropriate to do so even where a party has not specifically stated them as a relief sought. 
Ugandan case law has also gone ahead to provide for general damages that may be awarded to litigants as was seen in the suit of Crown Beverages Ltd. vs. Ssendi Edward, SCCA No. 2005; where Ssendi consumed a Pepsi soda which had fallen products of a snail that affected his reproductive system. In the locus clasicus case it was stated that the amount to be awarded as general damages is a matter of discretion of the trial court which must be exercised judicially.
Similarly the Black's Law Dictionary (8th edition. 2004) at Page 1174 defines general damages as damages that the law presumes follow from the type of wrong complained of also known as compensatory damages for harm that so frequently results from the tort for which a party has sued that the harm is reasonably expected and need not be alleged or proved

In the suit of Kampala District Land Board & George Mitala V Venansio Babweyana, Civil Appeal No. 2 OF 2007 it was decided that “…it is well settled law on award of damages by a trial court. It is trite law that damages are the direct probable consequences of the act complained of. Such consequences may be loss of use, loss of profit, physical inconvenience, mental distress, pain and suffering.”
The 1st respondent without any legal/equitable interest in the applicant’s land lodged a caveat on it on the 18th day of January, 2017 under Instrument No. MKO-00037697. This caveat is standing to date. The applicant being a financial company had many plans for this land that were frustrated by the 1st respondent. In a similar suit FERDINAND MUGISHA VS. STEVEN BANYA AND THE REGISTRAR OF TITLES HCCS NO. 833 OF 2007 (reported on ulii); Justice Percy Night Tuhaise had this to say and we quote her verbatim
“…plaintiff cannot be without remedy of an award of general damages in the given circumstances where he clearly suffered inconveniences trying to remove the caveat and file a suit against the 1st defendant. An award of Ugx 15,000,000/= (fifteen million) as general damages in favour of the plaintiff would be appropriate, considering that the land is in the outskirts of Kampala, at Bwebajja.”
Similarly the applicant has gone through untold suffering since the 1st respondent lodged a caveat on her land. The applicant’s director stated in paragraphs 4 & 5 of the affidavit in support of Notice of Motion that the Applicant, through their Lawyers- Baruga Associated Advocates applied for removal of the Caveat and on the 13th day of June 2017, the said application was well received by the 2nd Respondent’s Mukono MZO but up to date the said caveat has not been removed.
The only remedy that the applicant was left with is file this application for an order to remove the said caveat.  Therefore the applicant prays for general damages for the period the 1st respondent has continuously maintained a caveat on her land.

Issue 4: Whether or not the applicant is entitled to Costs.
Section 27 of the civil procedure Act cap 71 provides that the court has discretion to determine costs and against whom. Cost has been defined by the Black's Law Dictionary (8th edition. 2004) at page 1048 to mean the amount paid or charged for something; price or expenditure. It can also be understood as EXPENSE.
In the suit of FERDINAND MUGISHA VS STEVEN BANYA AND THE REGISTRAR OF TITLES HCCS NO. 833 OF 2007 (reported on ulii); Justice Percy Night Tuhaise clearly noted that the plaintiff had incurred a lot in filing a suit for removal of caveat and also pursuing the same. She went ahead and awarded costs of the suit to the plaintiff. In the instant suit, the applicant has similarly incurred a lot first in applying to the registrar of titles Mukono MZO through her lawyers to have the caveat removed. Secondly the applicant has also incurred a lot in filing and pursuing this application in this Honourable Court for which she prays for costs.

Our humble prayer to this Honorable Court is for Orders that:
a) The 2nd Respondent removes the caveat by the 1st Respondent from the Applicant’s land.

b) The 1st Respondent pays compensation/ damages to the applicant for lodging a caveat on the applicants land without reasonable cause.

c) The Respondents pay the applicant’s costs of this application.

Trespass to land

FINAL SUBMISSIONS OF THE DEFENDANT
The facts leading to the above civil suit briefly state that;
The defendant is called X a peasant aged 60 years. The defendant’s son, the late Y was the owner of the contested suit property which he purchased on the 5th day of February, 1995. This kibanja is found in Kalagi LC 1, Nabbaale Sub County and it neighbours Ms. Z and it stretches from the back cloth tree up to the late XX. At the time of his death, he left 5 children two plots of land annexed to one another. The first plot which is not in contention in this Honourable Court had quite a number of developments including a house that the late Y used to live in with his family and also had rentals on the same.
However the second plot which is in contention in this Honourable Court was purchased by the defendant’s late son on the 5th day of February, 1995. After the death of the defendant’s son, YY whom he had left as care taker of the deceased’s plots was one day at around 2 pm in the house when he heard people talking outside in the contested plot. He moved out and found out that they were planting boundary marks on the deceased’s plot. He as a caretaker tried to inquire from the deceased’s mother/defendant in this case to find out whether the people planting boundaries had been sent by her.

On the following day, the deceased’s mother/defendant in this suit went to the area Chairman L.C.1 to report the matter of people planting boundaries on the plot of her son. The area Chairman said that he was not aware of the planting of the boundary marks and that she was free to use her son’s plot. However, when the defendant assigned a porter to make for her bricks the area committee members ZZ and XY came and threatened to arrest the defendant’s porter hence stopping the work of brick making.
That the deceased’s mother/defendant bought bricks and sand to develop her late son’s plot. That indeed the development was started but unfortunately unknown people came and demolished the house that had reached window level. The defendant did not lose hope but went ahead to reconstruct the structure that had been put down and indeed in 2003 completed a pit latrine.

That at the time of instituting this suit by the plaintiff in this Honourable Court, he intimated to the defendant that he had no interest in the suit but was rather being used by some crooks, hence bringing up this suit of trespass.

The following issues were raised for the determination of this Court.
1. Whether or not the defendant is a trespasser on the suit kibanja.

2. What are the remedies available to the parties?

In resolving the first issue as to whether the defendant is a trespasser on the suit kibanja;
First and foremost we have to understand what amounts to trespass.

In the case of JUSTINE E.M.N LUTAAYA VS STIRLING CIVIL ENGINEERING CO SCCA NO.11/2002, it was stated inter alia....that Trespass is a continuing tort when unlawful entry on the land is followed by its continuous occupation or exploitation.
Similarly, the Black’s Law Dictionary 8th Edition at pg.4685 defines trespass as an unlawful act committed against the person or property of another.
Important to note is that for the plaintiff to succeed in a suit of trespass, there are two well established key elements which have to be proved at a balance of probabilities and these being, having title to sue and being in possession of the land trespassed onto and the conduct of the defendant must be voluntary, intentional, reckless or careless. as discussed below;

In the case of Newington v Windeyer (1985) 3 NSWLR 555, this authority establishes the first element being; having title to sue and being in possession of the land trespassed onto, in this case, the Plaintiff had common boundaries with the Defendant with an area fronting onto the street. Whilst the Plaintiff did not have title over the area, they had gates giving access to it. Over a period of more than 50 years, they had cultivated the area as a garden and executed other acts of possession, and their visitors and trades people used it. They brought an action for trespass against the Defendant who had a common boundary with the area and claimed the right of possession, but who had no history of the exercise of this right. It was held that there was a trespass as the Plaintiffs had adverse possession of the land. Similarly in the case of Vaughan v Shire of Benalla (1891) 17 VLR 129, it was held that mere use of land without exclusive possession to land does not provide the required title to sue in trespass.

In the suit before this Honourable Court, the plaintiff claimed that he bought the suit kibanja on the 15th day of August, 1994 from a one AA. What is so interesting is that from the time the plaintiff claims to have bought the suit kibanja he has not shown any act of actual possession of the same. We indeed wonder whether the plaintiff is the actual owner of the suit kibanja as he claims, this is because there are three agreements of purchase and sale of the same kibanja. No wonder it is only the defendant who has shown actual possession of her late son’s kibanja as she has shown acts of development as she assigned a porter to make for her bricks,unfortunately the area committee members came and threatened to arrest the defendant’s porter hence stopping the work of brick making.

The deceased’s mother/defendant brought bricks and sand to develop her late son’s plot. That indeed the development was started but unfortunately unknown people came and demolished the house that had reached window level. The defendant in her elderliness did not lose hope but went ahead to reconstruct the structure that had been put down and indeed in 2003 completed a pit latrine. While all this was being done the person who claims to be owner of the suit land was not doing development none the less resistance that was being done by the LC members who we indeed see that have intentions of defrauding the late Y’s family of their kibanja.

What is interesting in this suit is that the LC is very much interested in the late Y’s kibanja no wonder they have been involved in a lot of illegal acts like stopping the defendant’s porter from laying bricks. The plaintiff even intimated to the defendant that he had no interest in the suit but was rather being used by the LC 1 executive hence bringing up this suit of trespass. No wonder it is quite interesting for this Honourable Court to note that a one XZ crafted an agreement DE1 of sale dated the 6th day of February, 2005 of the deceased’s kibanja/suit kibanja and during the hearing of this suit the above mentioned agreement was admitted/not contested by the plaintiff’s lawyer.

We wonder why someone who admitted that there was an agreement of sale dated the 6th day of February, 2005 giving someone else possession of the suit kibanja would actually bring a claim that the defendant trespassed on his kibanja and yet he states that the kibanja is owned by someone. This lives the suit that was instituted by the plaintiff in balance, with all that has been stated we clearly see that there is connivance of the LC 1 and the plaintiff to defraud the family of the late Y. To further prove that the plaintiff and his team are indeed intending to defraud the family of the late Y, during the hearing it was the plaintiff’s own testimony that he did not know the size of the kibanja in contention. We wonder how someone who has instituted a suit of trespass in this Honourable Court cannot know the size of the kibanja that was trespassed onto.

The plaintiff adduced evidence in form of receipts of Busuulu to prove that actually he is the owner of the kibanja in contention. But the receipts that were brought by the plaintiff do not show which kibanja he was paying for and further the date, month and year of payment are not shown.

In our view this lives the suit of trespass that was instituted by the plaintiff in this Honourable Court in balance and this Court should not be seen to aid this fraud being done by the plaintiff and his masterminds behind the curtains.

The second element for the suit of trespass to succeed is that Conduct of the defendant must be voluntary, intentional, reckless or careless. In the case of Plenty v Dillon (1991) 171 CLR 635, where the Defendant was a police officer charged with the duty to serve summons to the Plaintiff. He entered onto the Plaintiff's premises with the intent to serve the summons from the Court. The occupier refused consent. It was held that the police officer was not authorized by common law to enter upon private property without the proprietor’s consent and hence the suit of trespass succeeded against the defendant.

In the suit before this Honourable Court we do not see any of the acts of the defendant for having been voluntary, intentional, reckless or careless hence amounting to trespass on the suit kibanja as the owner the late Y was the son of the defendant. He left 5 children in the care of the defendant/their grandmother.
The acts of developing the suit kibanja were for the best interest of the deceased’s children that were left in the care of the elderly woman/their grandmother the defendant. This Honourable Court should further be alive to the fact that failure to prove element number 1 at a balance of probabilities automatically fails ingredient number 2. In our view the plaintiff has failed to prove element number 1 at a balance of probabilities and hence element 2 cannot succeed because there is no way the defendant would have conducted herself in a voluntary, intentional, reckless or careless manner on property that was never for the plaintiff but rather her late son’s property that the plaintiff and his master minds behind the curtains are intending to defraud her of.
Basing on the above mentioned authorities, the defendant cannot be found to be a trespasser since she is using the suit kibanja/property of her late son in trust for the benefit of the late’s 5 children.

In resolving issue 2, what are the remedies available to the parties?

Our humble appeal to this Honourable Court is that Court finds that the plaintiff failed to prove on a balance of probabilities that the defendant trespassed on the suit kibanja and therefore not entitled to any of the remedies sought. And we further appeal to this Honourable Court to find that the defendant is lawfully in occupation of the suit kibanja and not a trespasser and in the circumstances judgment be entered against the plaintiff with Costs.