[2024] UGHC 360

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI

### CIVIL SUIT NO.005 OF 2022

## (FORMERLY CIVIL SUIT NO.019 OF 2019)

# KATUSIIME FRANK MATAMA ::::::::::::::::::::::::::::::::

#### **VERSUS**

1. TEREZA KAKURURU

2. MUSIIME JACENTA ::::::::::::::::::::::::::::::::::::

## BEFORE: HON. JUSTICE TOM CHEMUTAI, JUDGE. JUDGMENT

The Plaintiff filed this suit in this Court against the Defendants seeking for; a declaration that the suit land comprised in Block 4, Plot 850 located Nyakayina, Kigez, belongs to him, a declaration that the Defendants' actions on the suit land amounted to trespass to land, an order vacating the 1^st Defendant's caveat on the suit land's Certificate of title comprised in Block 4, Plot 850 land at located Nyakayina, Kigezi, a permanent injunction against trespassers, general damages, interest and costs of the suit.

The Plaintiff contended that in 2017, Kakururu Kelesensio approached him. That he informed him about his intention to sell him the suit land so as to able to raise money for his specialized medical treatment. That the Plaintiff carried out the necessary due diligence and agreed to purchase the suit land. That on the 5^th January, 2018, the Plaintiff purchased the suit land from the

John Kelesensio Kakururu/ registered proprietor. That he completed payment of the purchase price that same day. That on 10^th January 2018, the Plaintiff was handed full possession of the suit land and was given a Certificate of title, transfer forms, and all other documents to effect a transfer. That the suit land lacked an access road and the seller created an access through his neighboring piece of land. That Before the Plaintiff made the transfer of the suit land, the 1^st Defendant lodged a caveat on the certificate of title claiming that she had a matrimonial home on the suit land. That further she derived livelihood with her children from it.

That the late John Kelesensio Kakururu promised the Plaintiff that he would settle the complainants of 1st Defendant and also assured him that the suit land was his independent portion which he owned. That the late John Kelesensio Kakururu passed on before the 1^st Defendant removing the caveat from the Certificate of title. That the 1^st and 2^nd Defendants' workers entered the suit land and harvested the Plaintiff's growing trees and also destroyed part of the fence put up by the Plaintiff.

The Defendants filed a joint written statement of defense together with a Counter- claim and sought for; a declaration that the suit land is a family land, a declaration that the suit land forms part of the estate of the late John Kelesensio Kakururu, a declaration that the purported land sale agreement of the suit land was unlawful, an order of permanent injunction against the Plaintiff/ Counter Defendant, an order that the Plaintiff hands over the suit land's certificate of title to the Administrator of the estate of the late John Kelesensio Kakururu, general damages and costs of the suit.

$\mathbf{2}$

They Defendants claimed that the 1st Defendant got married to the late Kakururu Kelesensio, the registered proprietor of the suit land on 30^th April, 1958 in a church marriage. That they lived together as husband and wife and remained so up to the time the late Kakururu Kelesensio passed away on the 9^th September, 2020. That during the subsistence of their marriage, the 1^st Defendant and the late Kakururu Kelesensio acquired some properties which they alleged to include the suit land. That the suit land had been used as family grazing land and they derive livelihood from it. That 1st Defendant lodged a caveat on the suit land and the same was registered with the Registrar of Titles on 14^th June 2018. That the 1^st Defendant on 12^th March 2021, petitioned this honorable Court, vide Administration Cause No. 018 of 2021, to be granted Letters of Administration to the estate of the late Kakururu John Kelesensio.

#### Representation

During the hearing of this matter, the Plaintiff was represented by Counsel Mark Mwesigye from M/s Mark Mwesigye & Co. Advocates while the Defendants were represented by Counsel Samuel Ejoku from M/s Amber Solicitors and Advocates.

The following issues were framed at trial;

- 1. Whether there was a valid sale of land comprised in Plot 850 Block 4 Kigezi, between the Plaintiff and the late Kakururu Kelesenso. - 2. What are the available remedies to the parties?

Plaintiff's submissions.

Counsel for the Plaintiff contended that there were inconsistencies in the Defendant's evidence concerning whether the Defendants derived livelihood from the suit land and if the Defendants had a matrimonial home on it and whether the 1st Defendant had separated with the husband (the late Kakururu Kelesensio). He averred that the evidence of DW1 and DW2 should be rejected because they were deliberate lies intended to mislead the Court.

Counsel submitted that it was the evidence of PW1, PW2 and PW3 that on 5^th January 2018, the Plaintiff and the late Kakururu Kelesensio entered into a land sale agreement for the suit land comprised in Plot 850, Block 4, measuring 6.1 acres at a consideration price of Shs. $85,000,000/$ = (Shillings Eighty-Five Million Only). That Shs. 20,000,000/= (Shillings Twenty Million Only) was paid through the Vendor's Centenary Bank Account and the balance was paid on 8^th January 2018.

Counsel contended that all the prerequisite conditions for the valid contract/ agreement were satisfied in the land sale transaction between the Plaintiff and the late Kakururu Kelesensio.

On whether the suit land was a family property, Counsel submitted that the provisions of Section 38A of the Land Act as amended which restricts dealings on land without spousal consent are not applicable in this case. This is because Section 38A (5) of the Land Act as amended, provides that the section shall not apply to spouses who are legally separated. He added that PW1 knew that DW1 had separated with the vendor/ husband at the time of the purchase of the suit land. Counsel submitted that at the time of the sale, the vendor was not living with DW1 because they had separated through a Court process.

Counsel submitted that there was no need for 1st Defendant's consent to deal/ sell the suit land because was the registered proprietor of the suit land at the time. Counsel submitted that there was a valid land sale transaction between the Plaintiff and the late Kakururu Keresensio.

Counsel for prayed for Shs. 10,000,000/ $=$ as General damages be awarded to the Plaintiff for the inconveniences and loss suffered as a result of the Defendants' actions and costs of the suit.

#### Defendants' submissions

Counsel for the Defendants submitted that the 1st Defendant was legally married to the late John Kelesensio Kakururu vide a church marriage solemnized in 1958. That DW1 and the late Kakururu Keresensio purchased the suit land and thereafter started using it as farmland for grazing animals and growing food crops.

Counsel contended that the law does not require that the family land to be registered in the names of both spouses but it instead gives different parameters which are all fours with the facts at hand. Counsel contended that the suit land was used a farming for over 42 years until 2018 when the Plaintiff purportedly purchased it from the late John Kelesensio Kakururu.

Counsel submitted that the purported sale of the suit land was done without prior consent of the spouse (1st Defendant).

Counsel prayed that Plaintiff be ordered to return the suit land's certificate of title to the 1st Defendant who was the was appointed Administrator of the estate of the late John Kelesensio Kakururu. He also prayed that a permanent

injunction should be issued, restraining the Plaintiff or his agents from interfering with the quiet possession of and enjoyment of the suit land by the Defendants.

He proposed general damages of Ugx. $120,000,000/$ = (Uganda Shillings One Twenty Million Only) for the trees cut from the suit land by the Plaintiff's caretakers, the mental and psychological anguish suffered as a result of the Plaintiff's actions.

#### Court's determination

There is no doubt that the suit land comprised in Block 4, Plot 850, land at Nyakayina, in Kigezi is registered in the name of the late John Kelesensio Kakururu.

The Plaintiff contended that he purchased the suit land from the late John Kelesensio Kakururu at the total purchase price of Eighty-Five Million. The Plaintiff was able to prove by evidence the payment of the said purchase price to the John Kelesensio Kakururu. The Plaintiff took possession of the suit land after the execution of the purchase agreement. Thereafter was given by the late John Kelesensio Kakururu, the suit land's certificate of title and other documents to effect the transfer. However, the 1st Defendant lodged a caveat claiming the suit land to be the family land.

The Defendants contended that the 1st Defendant was the wife of the late John Kelesensio Kakururu having gotten married in 1985. The Plaintiff, however, averred that the 1^st Defendant had separated with the said the late John Kelesensio Kakururu by the time of execution of the land sale agreement on 5^th January, 2018. The major issue for the Court's determination is whether the suit land was family land and whether it was supposed to be subjected to spousal consent before being sold off to the Plaintiff.

The family land within the premise of **Section 38A (4)** is defined as;

## "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 the family derives sustenance; - c. Which the family freely and voluntarily agrees shall be treated to qualify under paragraph $(a)$ or $(b)$ ; - d. Which is treated as family land according to the norms, culture, customs, traditions or religion of the family;

Section 38A also provides land from which a family derives sustenance to 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

(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.** (underlining for my emphasis)

In the case of Oryem David Vs Omony Phillip, Civil Appeal No. 0100 of 2018, it was held that:

"It is not in dispute that the appellant and Rose Oryem were at all material time husband and wife. The main rule is that spouses have full right of disposition over their own personal property and assets in marriage, regardless of whether the spouses practice community of property or have separate property. This applies to both the property that is acquired prior to and during the marriage. A spouse has the right to sell, give away and use her own assets. Equally, spouses do not have right of disposition over the other spouse's assets.

Whereas ownership vests the owner with the most complete powers over land, but where a couple is married and the land in question is family land, ownership is restricted in various ways which prevent an owner the full entitlements towards his or her property. Under section 39 (1) (c) of The Land Act, no person may sell or enter into any other transaction in respect of land. on which the person ordinarily resides with his or her spouse and from which they derive their sustenance, except with the prior consent of his or her spouse. This rule applies regardless of which of the spouses owns or rents / leases the family land. According to section 39 (2) of the Act, the consent has to be in the manner prescribed by regulations made under the Act."

The Court visited *locus in quo* on 7^th July, 2023. The suit land had plants, sunflower and sweet potatoes which belonged to the Plaintiff. There is no doubt that the Plaintiff entered in possession of the suit land after the execution of land sale agreement between him and the late John Kelesensio Kakururu.

The Defendants claimed that the suit land was family land which they derived substance from. However, at Locus in quo, it was revealed that the suit land was a bush before and it was the Plaintiff who had put up crops after the purchase of suit land.

The late John Kelesensio Kakururu was registered proprietor of the suit land and the said late John Kelesensio Kakururu had two wives who included the 1^st Defendant. From the evidence, it is clear that the late John Kelesensio Kakururu exclusively owned the suit land and he sold the suit land to the Plaintiff to secure funds for his medical treatment. The Defendants had never derived livelihood from suit land and there was no ordinary residence on the suit land as alleged by the Defendants.

Furthermore, the 1^st Defendant stated at the trial that she had legally divorced the husband (the late John Kelesensio Kakururu) about 15 years before the land sale transaction was executed. He added that at the time the sale agreement between Plaintiff and John Kelesensio Kakururu was executed, they were still in separation.

I concur with the Counsel for the Plaintiff that Section 38A of the Land Act as amended which restricts dealings on land without spousal consent is not applicable in this case at hand, where parties are legally separated.

It can also be inferred that after the separation between the 1st Defendant and the late John Kelesensio Kakururu, each party took separate ways and each owned their properties individually. They were at liberty to dispose of their individual property after the separation without seeking each other's consent. Therefore, the late John Kelesensio Kakururu, individually owned the suit land at the time he sold it to the Plaintiff. Hence the suit land was not family property and the was no need for spousal consent from the 1st Defendant before being disposed of.

Accordingly, I find that there was a valid land sale agreement of the suit land between Plaintiff and the late John Kelesensio Kakururu. The Plaintiff is accordingly granted prayers in the Plaint.

It is settled law under section 27 (2) of the Civil Procedure Act that costs shall follow the event unless Court shall for good reason otherwise order. In the instant case there the 1st Defendant was the former wife of the late John Kelesensio Kakururu and the 2^nd Defendant was the biological daughter of the late John Kelesensio Kakururu and the 1st Defendant. The Defendants were interfering with the suit land with the mistaken belief that it was family land whereas not. Hence it will not be prudent to condemn them with costs, henceforth each party will bear its own costs.

Consequently, Judgment is entered for the Plaintiff in the above terms and the following **Orders** are hereby made

1. That the suit land described as Block 4, Plot 850 Nyakayina, Kigezi belongs to the Plaintiff, having legally purchased it from late John Kelesensio Kakururu.

- 2. That the Defendants' actions on the suit land described as Block 4, Plot 850 land at Nyakayina, Kigezi amount to trespass on the suit land. - 3. I order that the 1^st Defendant's Caveat on the suit land's Certificate of Title for Block 4, Plot 850 Nyakayina, Kigezi be vacated. - 4. I find no merits in the Defendants' Counter-Claim and the same is hereby dismissed. - 5. Each party is to bear its own costs,

$\overbrace{\cdots}$ day of $\overbrace{\cdots}$ $\overbrace{\cdots}$ $\overbrace{\cdots}$ Delivered at Rukungiri this.. $\ldots 2024.$

> **TOM CHEMUTAI** JUDGE