[1994] UGHC 44

KE? RERUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

#### CIVIL SUIT NO. 751 OF 1991

1. HAWA KASULE ⁵ ........... PLAINTIFFS

**a. NVGU-KHSU. LK ^H**

# VERSUS

DEPARTED ASIANS PROPERTY CUSTODIAN BOARD DEFENDANT.

# CIVI^L SUIT NO. ⁷⁵² OF ¹⁹⁹¹

L H.£f-A KASULE ⁵ 2® NURU KASULE ,J VERSUS PLAINTIFFS.

DEPARTED ASIANS PROPERTY CUSTODIAN BOARD BEFORE:- THE HONOURABLE MR. JUSTICE J. W,N. TSSKOOKO DEFENDANT.

## JUDGMENT

The plaintiffs claimed for vacant possession of premis-e-s known a-s plots 533, 53^, ⁵³⁵ and ⁵³⁶ among other reliefs. The premises *(* are at Mulago, Kyadondo,

The plaintiffs in both suits are sisters, being daughters of the late Haji Musa Kasule. In the first suit the plaintiff suad the Departed Asians Property Custodian Board jointly with one Induben Gordhbhal Patel® In the second suit the plaintiffs **swl the defendant** Board jointly with one Ramanbhai Chotabhai Patel. Because the two Patels were outside the jurisdiction of this court and each had. not been served in the manner required by law, the plaintiffs withdrew the suits against the two Patels with the leave of court. I shalt hereinafter refer to the Board Defendant as ''the defendant".

After the first plaintiff in the first suit had testified, Matovu Lubega counsel for the plaintiffs applied for the two suits to be consolidated. Defence counsel had no objection. I granted the application to consolidate the two suits. My reasons are in my ruling which I delivered on 20th May, 1992-

Thoreafter the holding of the suits proceeded as one action. Issues were freshed laber because the hearing of the suit had originally started exparte owing to the absence of defendant. Defence counsel appeared in the course of the hearing of the evidence of the first witnesses and was allowed to conduct the defence.

$\frac{2}{2}$

The issues framed are:-

1. Whether fiver my made by the plaintiffs is or is not valid.

2. Whoth i the with is time barred.

. 5. Which are the lease to the defendant is void abinitio for lack of consent.

4. Whether the plaintiffs are entitled to vacant possession. The plaintlife us planted out earlier are sisters being daughters of Haji Musa Kasule, now deceased.

According to the pleadings the plaintiffs' father was the original private mailo land owner of the suit lands. In the case of HCCS No. 751 of 1991, the land office reference is Kyadondo (or Kibuga) Block 29 plots 533 and 535, leasehold Register Volume 652 Folio 11 (though the plaint quotes Folio 12). As for HCCS No. 752 of 1991, the land office reference is Kyadondo (Kibuga) Block 29 Plots 534 and 536 Leaschold Register Volume 652 Folio 12.

On 22nd June, 1967 the father of the plaintiffs granted to one Serwano Bulungu Kigozi a lease for a term of 49 years in respect of Plots 533 and 535. On 22nd February, 1968 a supplemental lease betwoon the came parties was executed in respect of the same plots No. 533 and 535. The purpose of the supplemental lease was to substi-Anti Journ 7 in the lease of 1967. A second supplemental lease was executed on JOTA hetcher; 1968 by adding clause 4.

It appears that on 27th December, 1968, Serwano Bulungu Kigozi purported to transfor his interests in plots 533 and 535 to who appears to be an Indian called Mrs Induben Gordhanbhai Patel for a sum of Shs. 15,000/= and the transfer was lodged with the land office.

. . . . . . . . . /3

Whether the deceased left 3 or widows.

- 2. Are either the plaintiff of the defendant or both of them widows of the deceased. - 3\* Whether the defendant's children or any of them is a child of the deceased. - 4. Whether plot No. 61 Kabale/Kisoro Road belongs to the estate of the deceased or the defendant pernonallji - 5. Whether the plaintiff has the mandate of members of the deceased's family to apply for grant of Letters of Administration. - 6. Is the plaintiff entitled to grant. - 7• Whether plaintiff is entitled to other reliefs prayed.

The plaintiff testified as PW1. The vendor testified as PW2 (Dina Mpagazehe).

The defendant testified as DW1. Christopher Twino-mugisha tes-tified as D(V2\* DW3" was Zefaniya Buberwa.

## ISSUES NO; ¹ AND ² ---------- ——\_\_

These1issues should- have really been one issue and I shall therefore consider them together. There is in my view overwhelming evidence on the record including the proceedings of Nyabikoni Parish RC2 (Exh. P. II) proving that the plaintiff is one of the widows of the deceased. Mrs. Bossa, learned counsel for defendant, quite rightly conceded this when opening her submissions. There is not the slightest ddubt in my mind about that.

Let me therefore consider the evidence concerning the status of the defendant.

The effect of the'evidence of the plaintiff is that the defendant is not one of the widows of the deceased. In her evidence PW2 stated that the defendant is not one of the widows of the deceased. That the deceased has not paid cattle by way of dowry for the defendant and according to Bakiga custom, defendant could therefore not be a wife.

..... A

Defendant testified that she cohabitted with the deceased although they were not officially married. She regards herself as having been married to the deceased since 1983\* That the deceased paid to defendant's parents Shs. 100,000/= as dowry because among Bakiga custom, the deceased had ''stolen" her. According to the defendant, •she had introduced the deceased to her parents in 1985. And the deceased had introduced her to his parents in the same year. During cross-examination she admitted that .was Shs. ^zr00,000/=^as a fine. By this I understand it to mean a fine for deceased to have cohabitted with her without paying dowry. I say so because during the same crossexamination this,is what the defendant stated:

- -

J

''The fine of Shs. 100\*000/= was the beginning. He (deceased) and my father died before any further payment could be effected. Shs. 10C,000/= was a fine. Dowry to be paid had been agreed. Dowry had been agreed at 2 heads of cattle. It is not true that until dowry (2 heads of cattle) is paid to family among Bakiga and Bafumbira, marriage is not valied. I now say that until dowry is paid, marriage is not yet cemented"

Notwithstanding the evidence on record and. particularly what I have reproduced above, Mrs. Bossa submitted that the evidence of the defendant and of DW2 shows that defendant and the deceased lived aS wife and husband and in effect that because the surviving twin child has been accepted by..deceased.',S family, defendant should be accepted \* as wife of the deceased. She referred to the proceedings of RC2 Court. She .further referred to evidence showing that plaintiff had permitted defendant to use the disputed plot. In my view the evidence about who allowed'the defendant to cultivate .the plot is inconclusive.

Mr. Zagyenda in effect contended that the RC2 Court proceedings support the view that the defendant was not a •widow of the deceased. As pointed out by Mr. Zagyenda, DW3^f

..../5

the father of the deceased had disowned both the defendant and the twins as being widow and children of the deceased during, RC2 proceedings. He gave the reverse evidence when he testified before me here and even then not quite consiste ntly. When DWJ was being cross-examined he more or less echoed part of defendant's evidence which I reproduced earlier as regards validity of marriage where dowry has not been paid. He stated thht:\*

*5*

''Among Bakiga, a man who cohabits with a woman before paying dowry can negotiate payment of dowry. Among Bakiga, if no dowry paid, the in-laws can take the woman away until dowry is paid. Once dowry has been paid for a wife nobody can remove her from her husband"

When re-examined by learned counsel for the defendant, DW3 stated this:-

''Among Bakiga it is possible dowry may not be paid. If no bride price is paid, the father of the'woman would remove her from the man'^s home".

The inference which I get from this last piece of the evidence of DWJ is that until dowry is paid, the family of the woman cohabitting with a man who has not paid dowry to her family has control over that woman. In exercise of that control, the woman's family can remove her from the man. This, in my considered view, means that until dowry is paid a Mukiga woman who cohabits with a Mukiga man is not recognised as a wife. The evidence of first witness for defendant (her father) in RC2 Court page 7 states "A date in future was to be determined for this (dowry)" See page 7 of typed proceedings of Exh. P.2. Tha^t means no dowry had been paid. The case- of '7:nge. Vs. D. Manano /^95§7 EA ' ' ' 'a' 124/Ugandan case, shows that once bride price is paid to the extent prescribed by law, a woman living with a man is treated as legal wife. In Francis Vs. Boniface /19697 E. A. 146, a Tanzanian Court held that bride price is one of the incidents of marriage under customary

law. The effect of that decision is that if bride price has not been paid there is no valid marriage under customary law. . . -

. - 6 -

In the case of Case Vs. Ruguru /197O/ EA 55, a Kenyan case, the•. court • had ' to-Consider the effect of part-payment of dowry. In tha\*t". case court considered the Kikuyu/Embu marriage customs.- There the man was a European. The woman was an Embu. The man had. paid some money (Shs. 2,000/=) as part of the dowry'out of Shs. *9,2^0/^* There was evidence that among the . Embu and Kikuyu of Kenya, unless a man pays at least half the dowry and performs a ceremony of elaughtering a ram, there can be no valid marriage even if the man and won^n live together as wife and husband. This case is related to customary law of Embu/Kikuyu. But I find no distinction in its effect to the.present case. The three cases illustra-te consistency with regard to customary marriages in E. Africa.

After considering all the evidence adduced by both parties on issues ¹ and 2 and having consideredrthe submissions of both defence and plaintiff's counsel and the three cases I have cited above, I find as a 'fact that even if it is accepted that the deceased had paid Shs. 100,000/= as fine to the parents of the defendant, there was no valid marriage between the defendant and the deceased as recognised by Bakiga customs.

The,, evidence of DV0 before J?C2 court where he was witness No. 2 for plaintiff (see pages 5 to 6 of Exh. P.2)

shows clearly that by 16th April, 198% DW3 never\*knew defendant as a wife of the deceased.

Consequently, I hold that the defendant cannot be recognised as one of widows of the deceased. That is my answer to issues ¹ and 2.

/7

#### issue no. 3;

This concerns the status of the twin children produced by the defendant. According to her evidence these children were fathered by the deceased. Although in RC2 court, and indeed even in RC3 court (See Exh. P.3), DV/3, the father of the deceased, stated that the children did not belong to the deceased or that he did not know them, in court before me, DW3 stated that' he knew them and that the surviving child is now in Primary four. This sounds incredible considering old, that the child must now be about 6 years, having been born after death of deceased who died on 6th October, 196?. Even if the child was a genius I doubt that in our present Uganda a child aged 6 years could have been in; primary four.

Anyway from the evidence available on this issue, Mrs-. Bossa submitted that the surviving child was fathered by deceased. Her basis is evidence of the defendant and DV/3\* Towards the end of hearing of this case I asked whether it was not possible to compare by tests the blood of the child in dispute with that of surviving children of the deceased born by the father from the three widows just in case some common blood group could be established. should Neither counsel suggested that the case be adjourned so as to have such tests carried out. Such a test may hot be conclusive evidence but it may throw some light about whether or not all children or the disputed child and some of the other children of the deceased share blood characteristics. There is no evidence from anybody, whether it be the defendant or DW3,to indicate that .that child has some physical features similar to those of the deceased. These are some of the things which could help court. Genetic and biological factors or indeed physical features may not be conclusive evidence of paternity of a child. But they raise ge-od presemption about it. Be that as it may, on 3rd issue, Mr. Zagyenda submitted that there wasn't much evidence as to the paternity of the disputed child. That DW3 first denied the child in RC'^s Court which is true. The evidence of DW3 is unreliable. I know from -recorded evidence that the defendant suspected the role of the Chairman of RC's and by implication she appears to suggest that she lost the case there because of that Chairman. However a perusal of Exh. P.2 shows that the conduct of the case in RC2 Court wasn'^t done by the Chairman alone. Further nothing there shows that defendant objected to the presence of the Chairman on the RC II Court. The plaintiff appears to be honest. She accepts there are two other children of deceased whose mothers are not widows of the deceased. She has not disclaimed these. She could not disclaim the disputed child lightly, in the circumstances of this case. After all she has readily accepted her friendship with defendant.

In Civil trials under our law, it is trite law that he who asserts an issue assumes the burden of proving it: Order 13 Rule 2 CPR. Proof is on balance of probabilities. See Choitram Vs. II. Ghanshamdas Dadlani /^95§7 EA 641; National Grindlays Bank Ltd. Vs. Patel /19697 EA 403\* In paternity caocs; S' Nyangunda Vs. Kihwili /196?7 EA 212.

In the circumstances of this case, I regretfully find that the defendant has not proved on balance of probabilities that the disputed child was fathered by the deceased. I make this finding with regret because it is painful for anybody not to know a father. That is of course a moral issue which mus't take secondary place. I apply the law as it is.

## ISSUE-NO. 4:

This issue concerns ownership of plot No. 61 Kabale - Kisoro Road;

..,..,..../9

On the evidence available I find as fact that PW2 sold . \*\* \* • the plot to the deceased- It is the plaintiff's case that the plot belongs to the estate of thp deceased. On the other hand the defendant in her Written Statement of Defence averred that (paragraph 6 thereof):-

''Plot No. 61 at Nyabikoni, Rwakaraba Kabale Municipality belongs to the controlling authority, Kabale Municipal Council and since the late Kateeka had not obtained Registration of the said plot in his names as required by S. 51 of the Registration of Titles Act, no interest has been vested in him and accordingly when the late Kateeka died, the plot fell vacant and the defendant who had been in effective use of the said plot as widow of the deceased, applied for it from the controlling authority, Kabale Municipal Council and the said authority granted it to her lawfully".

X.

Thus in her pleadings, the defendant claimed for the plot essentially in her own right. However in her testimony in court, she based her claim on the fact that she contributed to the purchase of the plot when deceased was buying it, in effect for her. In otherwords, her evidence is that she was a joint purchaser. This in effect was the same stand taken in RC2 court (Exh. P.2).

PW2 in her testimony both before RC2'^s court stated that the deceased showed the dispv^d plot to the plaintiff. According to PW2 the plot belonged to the deceased. In effect she (PV/2) is saying the plot is for the estate of the deceased. . '.

In his submissions on the 4th issue Mr. Zagyenda contended that the defendant has contradicted herself in that in paragraph 6 of her Written Statement of Defence she claimed for\* the plot in her own fight whereas in her evidence she is claiming it as being part of the estate of the deceased. He submitted that she neither possesses the sale agreement nor all necessary documents which deceased had got in connection with application for lease. He contended further that in absence of the deceased we should rely on the ....... /10

evidence of PW2. He referred t« Exh. P.2 and submitted that DV/3 is unreliable. I understood Mr. Zagyenda to submit that in involving DW2, the defendant who was already **Oaware of the** deceased's interest in the land, the defendant intended to defeat the interests of the estate of the deceased. He cited the case of Departed Asians Property Custodian Board Vs. Anyadra (Supreme Court Civil Appeal 8/89) which is quoted in Supreme Court Civil Appeal No. 4 of 1990 (L. Sewanynna Vs. Martin Aliker) to support the view that Kabale Municipal Council'could not allocate plot 61 because it was not available for allocation. He further referred me to the case of Katarikawe Vs. Katwiremu /19777 HCB 188 and also Supreme Court Civil Appeal No. 12 of 1987 (J. Okello Vs. UNEB). .

Even if I take the view that the Written Statement of Defence presented by the defendant as a lay person (in actual fact the Written Statement of Defence is couched in reasonably good pleading), in the evidence in court she departed from her pleadings by asserting that she was a joint purchaser. The question of ownership of the plot is interesting.

The defendant does not feature anywhere in the sale transaction. She is neither mentioned by PW2 nor in Exh. P.6.

The lease offer which might have been given to the deceased was not exhibited because there was no dispute about it. However, I have perused a copy of the lease offer form Exh. D.3 dated 14th March., 1989 wherein defendant was offered the lease of the disputed plot. First^conditions 5 and 8 are partinent. They state

"3 Consent to transfer or sublet will not normally be considered until the building covenant has been fulfilled. Exception may be in favour of executors of the deceased lessee. /11

8 the offer is subject t© land being available and also free from disputes at the time of survey"

These must be presumed to h^ve been in lease form offered to the deceased.

Covenant No. 3 appears to support Mr. Zagyenda's information that in Kabale Municipal Council, a plot of a dead allocattee is always allocated to estate of the deceased as a matter of practice.

And the 8th Covenant certainly shows Kabale Municipal Council would not give the plot to the defendant since there is a dispute. This dispute would be considered at the survey stage. However a perusal of Exh. D.2 (instructions to survey) show that right from 2nd September, 1986, when the Assistant Commissioner (S & M) instructed the District Surveyor, Kabale District to survey the disputed plot, all stages of survey were being done for the benefit or on behalf of Kateeka, the deceased. I think that although the tenure offered as a lease might have expired? and here I should say there is no cogent evidence about the date of expiry, the inference is that by the time the defendant lodged her own application presumably on 16th September, 1988, the estate of the deceased still had some interest in the plot. I don't accept her averment in paragaph 6 of Written Statement of Defence that after death of deceased the plot automatically reverted to Council and allowed Council to disregard interest of deceased. As the deceased appears not to have been registered as owner for the initial period because the survey exercise was still going on, his customary tenure which enured to him by virtue of purchase of the plot and the trees thereon still subsisted. He had deposited building materials on the plot to show his interests continued. Since the deceased purchased land the valuable trees thereon, the sale did not contravene S. *I)* (2) of the Land Reform Decree, 1975\* . ..•••/12

And I say valuable trees because the evidence on record shows it was the felling and selling of these trees which aroused suspicions of the plaintiff.

I am supported in my view that deceased and therefore his estate had customary tenure on the plot by the case of Eric Okadapao Vs. Omuse,(HCCS No. 70^ of 1982)(See page 5 of the judgment) and Uganda Court of Appeal Civil Appeal No. 7 of 1978, Matovu & Others Vs. M. Sseviri and Another /19787 HCB.

On the facts available on record I find as a fact that the defendant applied for the plot when she was aware of the existing unregistered interest of the estate of the deceased.

In my considered opinion this amounted to fraud which was intended to defeat the interests of deceased's interest. That conclusion is inescapable. I believe the plaintiff when she stated that she was a mere friend of the defendant having been schoolments. I further believe the plaintiff when she stated that she simply allowed the defendant to grow seasonal crops like beans on the plot and I find that as a fact. I don't believe the defendant in her assertion that she contributed Shs. 800,000/= towards the purchase of the plot. I think that this is an afterthought. Her evidence is}as I said earlier, in contradiction to her pleadings. She is uncertain aS to the basis of her claim to the plot. I don't believe that S. 51 of Registration of Titles Act would protect the defendant either.

In my view as the registration procers had not been completed presumably because of the apparent cumbersome process exemplified by various minutes on Exh. D.2, if land had to be offered to any other applicant, the representatives of the estate of the deceased had to be ...... /13

heard first before the plot could be allocated to anybody alse •

In any case if defendant's evidence were believed that within a few days after she applied for the plot, the plaintiff visited the Town Clerk claiming for the same plot then plaintiff was entitled, to a hearing first.

I should also o-bserve that the deceased had in fact left a proper carbon, copy of Txh< 3X2 -with the plaintiff as she testified. In my view the 4efe-ndant must have presumably simply caused Exh. 9.2 to be -secured. by means of from photostarting the original / official files. That is why it bears minutes of various officials which minutes must have been intended for departmental purposes and in furtherance of the interests of the deceased.

I think that the principles in the caces of Katarikawe a-nd Okadapao (supra) .fully support **flte.**plaintiff's case.

Having considered all the evidence, submissions and the law relevant to the 4th issue, my conclusion is that Plot No. 61 Kabale/Kisoro Road belongs to the estate of re j the deceased.

## ISSUE NO. **5:**

There is overwhelming evidence that the plaintiff has the mandate of members of the deceased's family and even RGs to apply for grant of Letters of Administration. In any case the defendant is ruled out aS a beneficiary to the estate. Moreover none of the beneficiaries to the estate has presented any evidence in opposition to the application of the plaintiff.

## ISSUE NO. 6:

My answer is yes. The plaintiff is entitled to grant. In fact even after the defendant lodged a **Caveat,** she apparently never filed a statement in support of caveat to warrant its continued existance. I hereby direct that ....... /14

the plaintiff be granted Letters of Administration to the -.1

estate of the deceased G. W. Kateeka.

ISSUE NO. 7:

Yes, The plaintiff is entitled to other reliefs prayed

for, namely:

Thait the defendant is hereby ordered not to interfere with.any part of the estate of the deceased and in particular that piece of land known a^s Piet ^No.'.61, Kabale/Kisoro Road situate at Nyabikoni/Rwakaraba, in Kabale Municipality.

The defendant is ordered to pay to the plaintiff

the costs of this, suit.

Judgment entered for the plaintiff accordingly.

- ■\* - -,;U . /'

TSfeKOOKO

JU ^D ^G ^E

18/4/1994 at 9\*00 a.m.

**Plaintiff** present.

Zagyenda for the plaintiff.

Defendant present.

Ssensonga court clerk.

Judgment delivered in Chambers as open court

j<vln; tsekooko

JUDGE

18/V'l99lt