[2021] UGHCLD 183

# THE REPUBLIC OF UGANDA

# HIGH COURT OF UGANDA KAMPALA

## **LAND DIVISION**

# CIVIL APPEAL NO. 104 OF 2018

## ARISING FROM THE CHIEF MAGISTRATE'S COURT OF ENTEBBE

# CIVIL SUIT NO 51 OF 2017

- 1. SPECIOZA BAKILETA - 2. NABALAMBA ANNET

# 3. NAMUBIRU MARGARET NAMUGENYI SYLIVIA

4. MUYIYA GORETTI

## **VERSUS**

#### 1. KWIZERA MOSES

2. JUDITH NAMPEERA

$\mathsf{S}$

# 3. MUBIRU NTALA BENEDICTO....................................

# **JUDGMENT**

## Introduction:

The plaintiffs on 25^th June 2017 bought a kibanja on land comprised in Wakiso Busiro, **Block** 20 532 plot 316, land at Jjungo Sagala (suit kibanja) from one Nyakairu Jonas, aka Kanyarwanda Jonas and one Mukaleberaho Odetta and upon obtaining consent from the land owner, Mr. Mubiru Ntale they had taken possession of the suit kibanja.

The plaintiffs' claim against the defendants jointly and severally was for trespass on the land; a permanent injunction restraining the defendants, their agents and anyone claiming under them from trespassing on the said land; mesne profits of *Ugx 2,000,000/=*; an order of eviction;

general damages for trespass and costs of the suit.

The defendants filed a counterclaim against the plaintiffs and the owner of the land seeking a declaration that the purported sale between Kanyarwanda and the 1^st plaintiff was illegal and void; that the suit property was matrimonial property; a permanent injunction; general damages;

30 and costs of the counterclaim.

## **Brief facts:**

$\mathsf{S}$

The facts in brief are that as early as 1980s one Jonas Nyakairu aka Kanyarwanda acquired the kibanja, comprised in Wakiso Busiro Block 532, plot 316, land at Jungo and Sagala which is the subject of this suit. The parties entered into an agreement dated 8^th December, 2011.

It was the respondents'/plaintiffs' assertion that on 25^th June, 2017 the appellants/defendants had purchased the kibanja. However that the respondents entered on the kibanja, claiming ownership and have continued trespassing on the land to date. That despite several warnings they refused to vacate the land, thus preventing the plaintiffs from quiet possession and enjoyment of their land and disposing of the same.

It was not in issue that Ms Specioza, the 1^st appellant, was a biological mother to the 2^nd to the 5^th defendants, all of them children of Kanyarwanda who sold the *kibanja* to the respondents. In their counterclaim they contended that they never left possession of the kibanja where they had always lived as their matrimonial home, and from which they derived sustenance.

15 They also claimed that Kanywarwanda, had disappeared from the area and that persons who were unknown to them started inspecting the *kibanja*. The 1^st respondent later appeared and presented a purchase agreement purported to have been executed between him and Kanyarwanda who had already been reported to police as a missing person.

They refuted the claim that they had trespassed on the land which they contended had their burial ground, a fact known to the respondents. This being their matrimonial property, her husband had disposed it off to the respondents without first securing her consent as the spouse.

The issues during the trial were:

- 1. Whether the suit kibanja is matrimonial property and whether it belonged to the defendants; - 25 2. Whether the sale between the plaintiff and Kanyarwanda was lawful. - 3. Whether the defendants were trespassers on the kibanja; - 4. Remedies available to the parties.

The trial court in ruled in favour of the plaintiffs, declaring as follows:

1) The transaction between the plaintiffs and Kanyarwanda was lawful and as such the plaintiffs are the lawful owners of the suit kibanja.

(Johors

- 2) Permanent injunction to issue against the defendants their agents, assignees and successors in title; - 3) General damages of Ugx $5,000,000/$ =; - 4) Cost to the plaintiffs.

Dissatisfied with the decision of court, the defendants filed this appeal raising the following grounds:

- 1. The learned trial magistrate erred in law and fact when she found that the $1^st$ appellant separated from Kanyarwanda; - The learned trial magistrate erred in law and fact when she decided that the $2.$ suit land was not matrimonial property; - 3. The learned trial magistrate erred in law and fact when she found that Kanyarwanda and Mukaleberaho Odetta were married: - 4. The learned trial magistrate erred in law and fact she found that the sale between the $1^{st}$ respondent and Kanyarwanda Jonas was lawful; - 5. The learned trial magistrate erred in law and fact when she found the evidence relating to the sale agreement was unchallenged; - 25 6. The learned trial magistrate erred in law when she dismissed the counterclaim without determining it on merit.

I will deal with grounds 1, 2, and 3 jointly on account of the fact that they are interrelated:

# **Resolution of the issues:**

30 Ground 1: The learned trial magistrate erred in law and fact when she found that the 1^st appellant separated from Kanyarwanda;

Ground 2: The learned trial magistrate erred in law and fact when she decided that the suit land was not matrimonial property;

Ground 3: The learned trial magistrate erred in law and fact when she found that 35 Kanyarwanda and Mukaleberaho Odetta were married;

Jakof

$\mathsf{S}$

# Analysis of the law:

By virtue of **section 101 (1) of Evidence Act, Cap. 6,** whoever desires court to give judgment to any legal right or liability depending on the existence of any facts he/she asserts must prove that those facts exist. (George William Kakoma v Attorney General [2010] HCB 1 at page $78)$ .

The burden of proof lies therefore with the plaintiff who has the duty to furnish evidence whose level of probity is such that a reasonable man, might hold more probable the conclusion which the plaintiff contend, on a balance of probabilities. (Sebuliba vs Cooperative Bank Ltd. [1982] HCB 130; Oketha vs Attorney General Civil Suit No. 0069 of 2004.

- 10 Trespass to land as alluded to by the respondents in this case was defined as an unauthorized entry upon land that interferes with another person's lawful possession. (Justin Lutaya v Stirling Civil Engineering Company, Supreme Court Civil Appeal No. 11 of 2002, the Supreme Court). It will occur when a person makes an unauthorized entry upon land and thereby interferes or portends to interfere, with another person's lawful possession of that land. - 15 Needless to say, a tort of trespass to land is committed, not against the land, but against the person who is in actual possession of the land. (See: Justine E. M Lutaaya vs Stirling Civil Engineering Company Ltd. Civil Appeal No. 11 of 2002). Such possession may be physical or constructive.

The appellants defence against the alleged acts of trespass was based on their claim that what was sold to the respondents by Kanyarwanda was matrimonial property, disposed of unlawfully. 20 Court however ruled against the appellants declaring the transaction valid.

Matrimonial property is understood differently by different people. There is always property which the couple chose to call home. There may be property which may be acquired separately by each spouse before or after marriage.

25 Then there is property which a husband may hold in trust for the clan. Each spouse is entitled to that property which the parties chose to call home and which they jointly contributed to. *[Ref:* Muwanga vs Kintu, High Court Divorce Appeal 135/1997.)

Furthermore, by virtue of section 38A of the Land Act, Cap 227 (as amended by the Land **Amendment Act, 2004),** family/matrimonial property is broken down into the following aspects:

# "family land" means land—

(a) on which is situated the ordinary residence of a family;

(b) on which is situated the ordinary residence of the family and from which $\frac{1}{2}$ the family derives sustenance;

(c) which the family freely and voluntarily agrees shall be treated to qualify under paragraph $(a)$ or $(b)$ ; or

(d) which is treated as family land according to the norms, culture, customs, traditions or religion of the family:

"ordinary residence" means the place where a person resides with some degree of continuity apart from accidental or temporary absences; and a person is ordinarily resident in a place when he or she intends to make that place his or her home for an indefinite period;

"land from which a family derives sustenance" means—

(a) land which the family farms; or

(b) land which the family treats as the principal place which provides the livelihood of the family; or

$\mathsf{S}$

(c) land which the family freely and voluntarily agrees, shall be treated as the family's principal place or source of income for food.

(5) For the avoidance of doubt, this section shall not apply to spouses who are legally separated.

Section 39 of the Land Act (Supra) furthermore precludes the sale of land that constitutes family or matrimonial property, without the consent of the family. Such property thus brings out 20 the correlation between the principles of joint ownership and equitable distribution of property between spouses who decide to live apart.

It was the appellants' contention in this case that Kanyarwanda and Mukareberaho Odetta, the person whom he presented as his wife, had signed the transaction for the sale of the property. To prove their claim, the respondents relied on the evidence of three witnesses, while the appellants on their part, relied on evidence of five witnesses.

The 1^st and 2^nd plaintiffs/respondents, (respectively husband wife) testified as $Pw1$ and $Pw2$ . They told court that they bought the *kibanja* from Kanyarwanda and his wife on 25^th June, 2017. Kanyarwanda agreed to give vacant possession on same day, and had kept his promise.

Delse

An agreement confirming the transaction was attached as **Annexture C'**. It was signed by the plaintiffs/respondents, Kanyarwanda, as the vendor, and Mukareberaho Odetta purportedly as his wife.

Its validity was however contested on the ground that it disposed of the matrimonial/family property without the consent of Bakileta who claimed to be the actual spouse.

Four persons witnessed the said transaction, none of whom was however called in to testify. The respondents later sought and obtained consent from the land owner, Pw3, Benedicto Ntala Mubiru, the 3^rd respondent whom the two purchasers claimed had signed transfer and mutation forms for them. $Pw3$ had even received $Ugx1,000,000/$ = from Kinyarwanda, a claim that $Pw3$ did not deny.

**Pw3,** aged 92 years stated in his evidence that Ms Specioza Bakileta, the 1^st defendant/appellant was known to him as the estranged wife of Kanyarwanda. According to him, the two had separated 20 years earlier, and that Bakileta was now residing in Kasanje.

In corroboration of her husband's evidence, Pw2, Nampeera Judith, told court that at the time of purchasing the kibanja, they had found Kanyarwanda at his home with his wife and three children who were minors.

The appellants on their part, relied on the evidence of 5 witnesses. **Dw2** Nabalamba Annet, aged 32 years, daughter to Bakileta, the 1^st appellant; **Dw3**, Mubiru Christopher, aged 49. Chairperson of the area ; **Dw4** Malchai Sekanjako aged 66 years a neighbor to Kanyarwanda; Dw5, Imelda Nakanwagi, aged 60 years, also a neighbor to Kanyarwanda.

Bakileta claimed that she and her husband had lived together on the suit kibanja land since 1970s; bore him 6 children two of him had died while still young and were buried on the suit kibanja, where she too hoped to be buried upon her death.

She denied the claim by $Pw3$ that at the time of the transaction in 2017 the two had separated 25 for about 20 years. According to her, they never separated until 2017 when her husband Kanyarwanda had gone missing.

From the evidence of **Dw3**, Mubiru Christopher, the area chairman, Bakileta was and remained the only lawful wife to Kanyarwanda that he was aware of another woman he had seen in that home.

30 Bakileta had been in physical occupation of the suit land since his childhood and according to him, if the respondents/plaintiffs had consulted him, they would have been informed of the correct position.

$\mathsf{S}$

**Dw2,** in confirmation of her mother's assertions proved that Kinyarwanda had lived with her mother on the kibanja, making it more probable than not that Bakileta had interest in the kibanja.

Bakileta in paragraph 9 of her statement testified that her husband had paid dowry as a requirement under the Kinyankore culture; and as stated in paragraph 3, maintained that she was therefore legally married to him through custom.

**Annexture F1 and F2** were birth certificates bearing the names of Kanyarwanda and the 1^st appellant as parents to the children, also proof that as early as 1983, the two had begot children together and got them baptized around that time, when they were in physical possession of the kibanja.

In essence therefore the relationship between Kanyarwanda and Bakileta was that of a husband and wife, in a relationship that was potentially polygamous. One could not also dispel the distinct possibility, as deduced from the evidence of either side that Kanyarwanda had subsequently acquired himself another woman during Bakaleta's numerous absences.

The unanswered question was however whether or not the woman who signed the transaction, 15 was the second wife to the vendor, and if so whether she had any interest in the property bearing her signature as the spouse.

In those circumstances the respondents could not have known without verification, whether or not the person who gave the spousal consent was the lawful wife to the vendor, for the purposes of section 39 of the Land Act cited earlier.

What was not in dispute was that situated on the *kibanja* was the ordinary residence of a family; and from which they derived sustenance; where the children were raised and as such, was treated as the family land, according to the norms.

Despite her constant movements to Kasanje or Mbarara which she attempted to explain, this was evidently the ordinary residence for her and Kanyarwanda, the place where both had lived, 25 with some degree of continuity apart from accidental or temporary absences.

To Bakileta, it was the only place she called home. All the above therefore added up to make the suit kibanja pass the test of a family/matrimonial home, property in respect of which spousal consent was required.

The trial court found discrepancies and inconsistencies in the defence evidence thus coming to 30 the conclusion that Kanyarwanda and Bakileta had long since separated. To the contrary, and with all due respect, there was consistency in the evidence that for decades, she had been an occupant of the kibanja together with her husband and father of her children, even before Pw3

abbat

$5$

the land owner, had purchased the legal interest. No one disputed the claim that Kanyarwanda had paid her dowry.

The occasional and long periods of absence by her, notwithstanding she remained a wife to him under the customary rules. In any case, such absences as alluded to by the respondents was a situation duly catered for under the law.

These occurrences were not enough in my view, to impute separation, desertion to deprive her of an interest in the property that she had helped to develop. She may not have paid for it but in bringing up six children, she had made an indirect contribution to the property that her husband had deprived her of.

10 Regarding the issue of burial grounds, the trial court upon its *locus* visit came to the conclusion that the *kibanja* was not the appellants' burial ground as claimed; and that is why one of her children had not been buried on that kibanja.

The explanation by Kabaleta which court however did not take into consideration was that she had had a child with her first man but that child had died. She could have buried the child on that same land.

$\mathsf{S}$

This court has besides, always held the view that burial on the land was only one of such proof of occupation, but by itself it was not enough proof of valid possession or ownership, as that would seem to suggest that for one to make any valid claim of ownership one needed to have some burial ground on the land.

- 20 In any event, the Bakileta could claim protectable interest as a bona fide occupant. Under section 29 (2) of the Land Act, Cap.227 a bona fide occupant is defined as any person who before the coming into force of the 1995 Constitution had either occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for 12 years or more. The evidence as availed to court proved that she was also a bona fide occupant. - It may seem like an unconventional way for the intending buyer to inquire into the marital 25 relations of the vendor. But given the nature of such transactions and the natural behaviors of the society in which we live, there ought to be no room for error and/or speculation.

Since as reasonably expected in any potentially polygamous relationship there could have been more than one wife in Kanyarwanda's life, the intending buyer had to bear in mind that the person endorsing the agreement as the spouse may not be the lawful wife or have any actual interest in the property to be sold. Her interest would be obtaining gain in the proceeds of the sale of the matrimonial property.

Jahorg

That therefore reinforces the argument that a prospective buyer is expected to verify the truthfulness of the information availed to him/her by a vendor, before making any such commitment relating to any transaction in land.

Although the 1^st respondent in his reexamination told court that he consulted the neighbors, he neither named nor invited any of them to testify in court, in support of his claims. Both $\mathsf{S}$ respondents also admitted that they did not meet the Lcs, and the reason they gave was that they had been told that they would be charged the 10% commission.

The agreement itself which the trial court found valid/lawful based on the strength of the plaintiffs'/respondents' evidence, was not signed at Kanyarwanda's home but at **Pw3's**, implying that any woman found at that location could have endorsed the agreement purportedly as the spouse of Kanyarwanda.

This was a transaction was between strangers since according to the respondents they only got to meet the vendor in May, 2017 before to buying the land from him in June, 2017.

With due respect, lands are not vegetables that are bought from unknown sellers. These are valuable properties and buyers are expected to make thorough investigations; not only of the 15 land but of sellers before purchase (Grace Manjeri Nafula vs Brig. Gen Elly Kayanja & Anor Civil Suit No. 136 of 2011).

Such failure to make reasonable inquiries or ignorance or negligence is grave and often bears serious consequences which may lead to a presumption that fraud was committed. ( See also:

Uganda Posts and Telecommunications vs Abraham Kitumba SCCA No. 36 of 1995). 20

Due diligence thus calls for verification of any such information, so important in proving the validity of a transaction of this nature and so critical in determining whether or not the purchaser had *bona fide* intentions to purchase.

The term, bona fide purchaser has been defined in **Black's Law Dictionary 8^th Edition at page** 25 1271 to mean a party who buys something for value without notice of another's claim to the property and without actual or constructive notice of any defects in or infirmities, claims, or equities against the seller's title; one who has good faith paid valuable consideration without notice of prior adverse claims.

Accordingly, a person who purchases an estate which he knows to be in occupation of another 30 person other than the vendor is not a *bona fide* purchaser for value without notice of the fraud if he/she fails to make inquiries before such purchase is made.

Uslo ex

Going by the contents of the sale agreement **Annexture B'**, dated 8^th December, 2011, the land owner **Pw3**, had reduced the size of the kibanja which the Kanyarwanda family had been occupying.

$\mathsf{S}$

Kanyarwanda was to retain only 60 decimals out of **plot 316, Block 532**, with a house and crops. An amount of *Ugx 900,000/*= was also paid out to him by the said owner of the land as a settlement.

**Annexture C** was the second handwritten agreement between Kanyarwanda, this time as the vendor and the respondents as buyers. It was dated 25^th June, 2017. It referred to a *kibanja* of an area of 1.078 acres, for which consideration of *Ugx 15,000,000/=* was paid by the respondents to Kanyarwanda.

The appellants doubted the validity of that transaction given the fact that Kanyarwanda had been reported missing, as per letter dated 25^th June, 2017 by the area chairman, who testified as $Dw3$ .

The date of selling the land was the same day on which he vacated the kibanja, same day on which he was reported missing. It was rather obvious therefore that Kanyarwanda had entered 15 into the transaction with the respondents, emptied the house and run off with the money, taking advantage of his wife's temporary absence.

The fact that the house was found to be empty during the locus in quo visit could not have necessarily meant that it had been lawfully relinquished. It did not serve to exonerate the respondents from their obligation to obtain prior information about the person they were dealing with, upon consultations from the area leaders and neighbours, three of whom were in court to corroborate Kabuleta's assertions.

I also had occasion to study the purported transfer form (availed on the record), alleged to have been signed by **Pw3**, the land owner as the vendor and the respondents as purchasers. It was signed by both sides but had neither the plot number nor block number of the land. Not surprisingly, it was not tendered in court as the respondents' evidence.

More importantly, the sale agreement between Kanyarwanda and $Pw3$ , was lacking some vital information. No measurements or sketch of the kibanja was provided to show the boundaries of the suit kibanja which, going by the agreement Annexture C, covered an area of only 60 decimals, that had been sold to Kanyarwanda in 2011.

Surveying land and indicating measurements of a kibanja prior to the purchase is another key element of due diligence that goes hand in hand with appropriate consultations with those


occupying the neighbouring areas of the land, as well as the area leaders, none of which had been done in this case; or if it had been done, no such proof was availed to court.

Had the respondents done what was expected of them, they would also have noted that Kanyarwanda had bought only 60 acres in 2011, was possibly occupying more than an acre. It is significant to note that after selling the 60 decimals to Kanyarwanda neither him nor $Pw3$ ever took the trouble to follow up the execution of the agreement or at least carry out a survey and curve off the 60 decimals.

Furthermore, instead of selling the 60 decimals to the respondents, he had sold off 1.078 acres to the respondents without indicating the boundaries in that agreement.

- 10 It is clear that **Pw3** himself had no real idea about the size of the suit kibanja which had been part of his land, but had allowed the transaction between Kanyarwanda and the respondents, by which 1.078 acres were sold off to the respondents, more than what Kanyarwanda was entitled to under the agreement of 2011. One could not discard the possibility that the parties to the second agreement took advantage of his advanced age to curve off more than what they were - 15 entitled to.

$\mathsf{S}$

In short, neither Kanyarwanda he nor his wife or other members of the family could claim any interest in the land beyond the 60 acres he was entitled to. That agreement was never challenged or set aside and it remained binding to the parties and those claiming under them thereafter.

Kanyarwanda could not therefore have legally passed on to the respondents what had already 20 reverted to the land owner, **Pw3**, following the execution of the 2011 settlement. It created doubt on the validity of the second agreement by which the vendor purportedly passed on more than what he or his wife were entitled to.

With all respect the trial court did not consider all the above aspects of the two transactions.

## Conclusion:

As noted earlier, the principle of family/matrimonial connotes the principle of joint ownership 25 and equitable distribution of jointly owned property. The rebuttable assumption will always be made that spouses will, in absence of any evidence to tip the balance, be entitled to enjoy 50% out of jointly owned property.

Kanyarwanda in this case was therefore entitled to 50% as his share of the *kibanja* as per the 30 2011 agreement, which this court could not deny him of. That is all he could sell. Likewise court cannot deny Bakileta the 50%, an equivalent of 30 decimals as her fair share. The evidence led by the respondents was however not enough to pin the $2^{nd}$ to the $5^{th}$ respondents to any single act of trespass.

albert 11

All in all, court not rule out the possibility that Mukaleberaho Odetta was a wife to Kanyarwanda but in a potentially polygamous marriage Bakileta also remained his wife, having occupied the kibanja for decades, sharing the matrimonial home with him and his six children, and indirectly contributing to the property, from which they all derived sustenance. As a spouse, she was therefore entitled to participate in any transaction relating to that land.

The respondents on their part did not take sufficient care to make appropriate inquiries into the ownership of the land. The learned trial magistrate therefore erred in law and fact when she made a finding that Bakileta had separated from Kanyarwanda; and that the suit land was not matrimonial property.

She also erred in law when she dismissed the counterclaim without determining it on its merits. 10 The appeal therefore succeeds, but only in part.

Accordingly, the following orders are made:

- 1. A joint survey is to be conducted for the land comprised in Wakiso Busiro, Block 532 plot 316, land at Jjungo Sagala out of which 30 decimals shall be curved out as matrimonial property for the appellants' family; - 2. The respondents shall enter into fresh negotiations to validate the agreement for the balance of the 70.078 decimals from Block 532 plot 316, land at Jjungo Sagala. - 20

$5$

- 3. This court finds no wrongdoing by the $3^{rd}$ respondent or the $2^{nd}$ to the $5^{th}$ appellants who should never have been sued. - 4. The $1^{st}$ and $2^{nd}$ respondents to meet the costs of the survey and of this suit. - 5. Each party to meet its own costs of transfer.

Alexandra N Rugadya

Judge

15^th December, 2021

Decided by encil<br>Olehange J<br>K|12/2021