Wakilii

Bakaihahwenki v Nganda (Miscellaneous Cause No. 86 of 2011)

High Court · [2012] UGHC 228 · 2012 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion for removal of caveat on registered land title
Decision
Caveat removed from the register

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that once mortgaged land legally reverts to the mortgagees under the Mortgage Act and is transferred to a purchaser, a caveat lodged by a person claiming to be a beneficiary of the original registered proprietors has no legal basis under section 139 of the Registration of Titles Act. The applicant proved on unchallenged affidavit evidence that he acquired the land from the mortgagees who exercised their rights under the Mortgage Act. The respondent failed to rebut the claim or demonstrate any legal interest warranting the caveat. Application allowed and caveat removed.

Outcome

Caveat removed from the register

Facts

The applicant purchased land comprised in Kibuga Block 7 Plot 627 Kampala from Non Performing Assets Recovery Trust (NPART), who were the mortgagees, on 17 April 2003. NPART signed a transfer form as mortgagees and delivered the duplicate certificate of title to the applicant. The land was registered in the names of Velentine Birikadde and George William Sentalo, who had mortgaged it to Uganda Commercial Bank. The applicant took physical occupation of the property. When he attempted to transfer the land into his name, he discovered that the respondent had lodged caveat instrument no. 291264 on 16 December 1997, claiming to be the administrator of the estate of the late Valentine Birikadde. The respondent was served by substituted service through newspaper advertisement and notice board affixation but did not file any affidavit in reply or appear at the hearing.

Issues

  1. Whether the respondent had a legal basis under section 139 of the Registration of Titles Act to lodge and maintain a caveat on land that had been transferred by a mortgagee to the applicant.
  2. Whether the caveat should be removed from the register.

Orders

  • The caveat lodged on the suit land by the respondent should be removed.
  • The applicant will bear his own costs of this application.

Rules and key headnotes

Land & Property — Caveats — Removal of Caveat — Requirements under Registration of Titles Act s.139
Under section 139 of the Registration of Titles Act, only a beneficiary or person claiming an estate or interest in land may lodge a caveat. Once mortgaged land reverts to the mortgagees under the Mortgage Act and is transferred to a purchaser, a caveat lodged by a person claiming to be a beneficiary of the original registered proprietors has no legal basis and must be removed.
Civil Procedure — Ex Parte Proceedings — Effect of Failure to File Defence
Under Order 9 rules 10 and 11(2) of the Civil Procedure Rules, where a defendant fails to file a defence within the time allowed, the plaintiff may set down the suit for hearing ex parte and the defendant will not be allowed to participate in the proceedings, having put themselves out of court.
Evidence — Affidavit Evidence — Unchallenged Affidavits
Where a party fails to file an affidavit in reply to challenge the applicant's affidavit evidence, that evidence is deemed admitted and taken to be truthful, subject to whether the contents pass the test of evidence and are cogent and of probative value.

Legislation cited (11)

Cases cited (4)

  • Kubibaire v Kakwenzire [1977] HCB 37
  • Musoke v Kaye [1976] HCB 171
  • Tororo District Administration v Andalalapo Ltd [1977] IV KALR 126
  • Samwiri Massa v Rose Achieng [1978] HCB 297

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bakaihahwenki v Nganda (Miscellaneous Cause No. 86 of 2011) [2012] UGHC 228 (8 November 2012)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.