[2024] UGCommC 122

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) CIVIL SUIT NO 0846 OF 2020

#### KYOBUTUNGI EDIDAH::::::::::::::::::::::::::::::::::: **VERSUS**

#### 1. GUMA GORDON

#### 2. CENTENARY RURAL DEVELOPMENT

BANK LIMITED ::::::::::::::::::::::::::::::::::::

### Before Hon. Lady Justice Patricia Kahigi Asiimwe

### Judgment

#### Introduction

- The Plaintiff brought this suit against the $2^{nd}$ Defendant for a $1.$ declaration that the mortgage agreement between the 2^nd Defendant and her husband (1^st Defendant) is illegal, null, and void because there was no spousal consent. - $2.$ The Plaintiff seeks the following reliefs: a declaration that the mortgage transaction contravenes section 39 of the Land Act which provides for spousal consent before mortgaging land, a permanent injunction restraining the $2^{nd}$ Defendant from selling, evicting the Plaintiff or dealing with the property in any way, general damages and costs of the suit.

### The Plaintiff's case

The Plaintiff's case is that the 1^st Defendant married her 3. customarily in 1996 under the Kinayankole custom. After their marriage, the Plaintiff and the 1^st Defendant acquired land comprised in Block 203 Plot 6925 at Namungona Rubaga division where they set up a family home. The Plaintiff has four

biological children and they all reside at the suit property with the 1^st Defendant.

- $4.$ Sometime around July 2020, auctioneers inspected the house and informed her that the $2^nd$ Defendant had mortgaged the suit land to the $2^{nd}$ Defendant. - 5. The Plaintiff was surprised to learn of that development since she did not give any spousal consent to mortgage the house where they ordinarily reside.

The $1$ ^st Defendant's case

6. The 1^st Defendant filed a Written Statement of Defence and stated that he informed the Plaintiff of his intentions to mortgage the suit property. The Defendant admitted that he applied for and obtained a loan facility from the $2^nd$ Defendant. He mortgaged the property in Block 203 Plot 6925 land at Namungona Rubaga Division in good faith in order to get money for the family's benefit.

The $2^{nd}$ Defendant's case

- 7. It's the $2^{nd}$ Defendant's case that on the 11^th day of June 2018, the 1^st Defendant applied and obtained a loan facility amounting to UGX. 100,000,000. On $15^th$ January 2019, he obtained a further bank facility of UGX. 15,000,000 at an interest rate of 24% per annum. - 8. He pledged property in Block 203, Plot 6925 Namugona, and a Kibanja as security for the outstanding loan sums. The above properties were taken as security with the consent of Rosette Bazaare, the 1^st Defendant's known spouse. Rosette Bazaare obtained independent advice and executed a spousal consent form.

- 9. The 1^st Defendant defaulted on his loan repayment obligations, and the outstanding is UGX. 78,861,856. - 10. The $2^{nd}$ Defendant issued a demand notice, notice of default, and notice of sale. Despite several notices to clear the outstanding balance, the 1^st Defendant failed to pay the outstanding monies, prompting the Bank to take on the foreclosure process. - $11.$ The $2^{nd}$ Defendant cross-claimed for the outstanding loan UGX. 78,861,856, Interest at 25% on the outstanding sum, general damages, and costs of the suit.

### Representation

12. The Plaintiff was represented by Bamwite Edward of $M/s$ Bamwite, Kakuba & Co. Advocates, and the 1^st Defendant was represented by Justus Agaba of $M/s$ Justus Agaba & Co. Advocates, the 2^nd Defendant was represented by Ivan Busulwa of $M/s$ Buwule & Mayiga Advocates.

### Issues

- 13. The issues for resolution are as follows: - $\mathbf{I}$ . Whether the mortgage transaction between 1^st Defendant and $2^nd$ Defendant over the suit property required spousal consent - $\mathbf{H}$ . Whether the mortgage transaction between the $1^{st}$ and $2^{nd}$ Defendants over the suit property is valid - III. What remedies are available to the parties?

### Evidence

14. The Plaintiff presented three witnesses, PW1- Edidah Kyobutungi (the Plaintiff), PW2-**Samuel** Ssegujja, Vice Chairperson of Namugona, PW 3- Guma Edmund Mwebesa, son

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to the Plaintiff and l"tDefendant and PW 4-Hamson Bamanya, brother to the Plaintiff.

15. The 1"1 Defendant appeared as the only witness in his case. The 2nrt psfsndant presented one witness: DW1- Sylvia Nakibuuka, a business administrator with Centenary Bank Bwaise Branch.

## Submissions

### The Pl aintiff s su bmissions

- 16. Counsel for the Plaintiff submitted that Secfion 39 (1) of the Land Act cap 227, as amended bg the Land Amendment Act 2004, prohibits any person lrom mortgaging land where the person ordinarily resides with their spouse or where they derive their sustenance, except with the spouse's prior written con sent. - 17. Counsel for Plaintiff submitted that the Plaintiff adduced evidence of her children and the iocal council to prove that she resides in the house situated at Block 2O3, Plot 6925 Namugona, with the 1.1 Defendant and her four children. - 18. He lurther submitted that the suit property, which constituted family land/ matrimonial property, was mortgaged to the Bank without her consent. Counsel asserted that the wording of Section 39 is mandatory and it leaves no room for deviation. He concluded that since spousal consent was not obtained, the mortgage transaction was illegal, null, and void.

# The 7"1 Defendant's submission

79. Counsel for the l"t Defendant submitted that the l"t Defendant was never informed about the spousal consent requirement. He argued that the l"t Defendant was only given loan forms to fiIl in at the Bwaise Branch. He asserted that the loan oflicer of the 2"d Defendant filled in the spousal consent forms.

20 He explained that the 1., Defendant never presented any spouse named Bazaare to the 1"t Defendant. He concluded that the mortgage transaction was illegal, null, and void without spousal consent from his wife (the Plaintiff).

### The 2"d Defendant's submission

- 21. Counsel for the 2"d Defendant submitted that the Plaintiff has not proved her marriage to the 1s Defendant. He submitted that the majn witness PW3 who was meant to prove the fact that a customary marriage took place did not adduce any evidence of photographs, video, or any other witnesses to the marriage ceremony. He a,lso conceded that the dowry was never paid in 1996 and stated that the dowry was paid to him in 2019 after the death of his father. - 22 Regarding the cross-claim for UGX. 78,86 1,856. He submitted that during cross-examination, the 1"t Defendant admitted indebtedness of UGX. 56,584,421 . He explained the loan was rescheduled and the 1"t Defendant continued paying insignificant amounts which attracted interest and made the outstanding go up to UGX. 78,86 1,856. - He concluded that the 2"d obligations under the loan outstanding monies. Defendant has breached facility and should pay its the

### Resolution

- Issue I: Whether the mortgage transaction between lst qn6l )ut Defendant ouer the suit required spousal consent - 24. Under Section 39 (1) of the Land Act cap 227, as amenrled, no person shall mortgage family land except with except with the prior consent of his or her spouse. Under Section 38A (4) of the

Land Act family land is defined as land on which is situated the ordinary residence of a family. The same provision defines ordinary residence as the place where a person resides with some degree of continuity apart from accidental or temporary absences.

- 25. In the present case, the Plaintiff's witnesses of PW2 Samuel Ssegujja, Vice Chairperson of Namugona, and PW3 Guma Edmund Mwebesa, her biological son, testified that the family has lived on the suit property for over 15 years. PW2 stated that they had been residents of the area and in the suit property for over 20 years. Therefore, the suit land constitutes family land. The question then is whether the Plaintiff is a spouse of the Defendant. - Black's Law Dictionary 8^th Edition at page 3084 defines 26. marriage as the legal union of a couple as husband and wife. In the instant case, the Plaintiff states that the 1^st Defendant married her under a customary marriage in 1996. The 1^st Defendant also asserts that the Plaintiff is his customarily married wife. - 27. Under Section (1) b of the Customary Marriage Registration Act. Cap 248, a customary marriage is a marriage celebrated according to the rites of an African community in which one of the parties is a member of that community. - 28. In Uganda versus Kato & Others (1976) HCB 204, Court held that in order for a union to be a marriage under customary law. the parties must have gone through the ceremony of marriage required under the community.

 - 29. In the case of Hellen Okello Versus Akello Jennlfer Ocan, Civil Appeal No. OO84 of 2OL9, Justice Stephen Mubiru held that what is sufficient to prove a customary marriage is ^a celebration and/or blessing of the union in a manner that treats it as a marriage by the customs of the respective families to which the parties belong, followed by cohabitation. - 30. In the present case, the Plaintiff states that she got married under the Kinyankole custom. In Bruno Kiwuwa vetsus Isaac Serunkuma Civil Suit No. 52 of 2o06, the court defined ^a custom as "a practice that has been followed by a particular locality, in such circumstances that it is to be accepted as part of the law of that locality." - 31. In the same case of Bruno Kiwuwa versus Isaac Scrunkuma (supra), the court held that it is settled law that where customary law is not documented or so notorious, it has to be proved before the court. Under Sections lol and 102 of the Euidence Act, Cap. 6 the burden of proof lies with the person who would fail if no evidence at all were given on either side or on the person who wishes the court to believe the existence of a fact. - 32. To prove the customary marriage, the Plaintiff called her brother PW 4 - Hamson Bamanya who testified that the l.' Defendant married the Plaintiff at a traditional function where he was introduced to her parents and family. During crossexamination, he stated that he does not have any photographs or video to prove that there was a customary marriage, and neither does he have a customary marriage certificate. - 33. PE 4 also adduced in evidence a letter he authored. I have found it necessary to reproduce the letter below:

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Rganshana Kashengi ward Bushengi Ishaka 1s/ 09/ 2020

## To uhom lt mag concern

I, Hamson Bamabya B. confirm that Edidah Kgobutungi is mg daughter uho got married to Gordon Guma, the son of Mrs. Buhwiremu Adine of Ryashamire, Kajara Ntungamo Dstict in the gear 1996.

They paid me all the dowry according to the Kinyankole norrns and I accepted them to get manried.

I am Hamson Bamanya B.

Confi.nned by:- Asiimute Asaph Chairman LCI Ryanshana II.

- 34. In the case of Namukasa Joweria Vs Kakondere Livingstone Divorce Cause No. 30 of 2O10 it was held that "lt is now settled law in our courts that payment of the full bride price requested by the bride's lamily is proof that a customary marriage has been celebrated between two parties." - 35. Regarding the above letter, PW 4 testihed that he wrote the letter on behalf of his late father as the heir. He further clarified that

he received the dowry on behalf of his father and that he received the dowry after his father's death.

- 36. He further testified that the Plaintiff's father died in October 2019, and a death certificate marked PE 5 was adduced to prove death. The death certil-rcate indicates that his father died on 22"d Oclober 201.9. - 37. It should be noted that the dowry was paid and received by PW 4 after the loan agreement was entered into. The agreement was signed by the parties on the 11rh of June 2O18. As noted above the dowry was received by PW 4 after his father's death, therefore at the time of the loan transaction (June 2018) the Plaintiff and the 1"t Defendant were not customarily married. - 38. In the case of Olowo Edith Nakyesa & 4 others versus Olowo Edward & others Civil Suit No. O76 of 2OL2, Justice Namundi found that the Plaintiffs had failed to prove that any customary ceremonies had taken place in relation to the customs of the community or tribe and therefore there was no customary marriage. - 39. The Plaintiff and her witnesses PW 2 the loca-l council chairman, and PW3- the Plaintifl's son testilied that the 1.1 Defendant (his father) and the Plaintiff have lived in the suit property for many years. However as was held in the case of Hellen Okello Versus Akello Jennifer Ocan, Civil Appeal No. OO84 of 2OL9, by Justice Stephen Mubiru cohabitation alone is insufhcient to constitute a customary marriage. I therefore find that the evidence of cohabitation is insulficient to prove a customary marriage.

- 40 This court Iinds that the Plaintiff did not adduce evidence to prove that there was a subsisting customary marriage with the 1.' Defendant at the time of entering the loan transaction. Therefore, the 1"t Defendant did not need to seek her consent before mortgaging the suit property as security to the Bank. This issue is answered in the negative. - Issue 2: Whether the mortgage transaction betueen the l"t and 2"d Defendants ouer the suit propertg is ualid - 41. Having lound that the Plaintiff was not customarily married to the l"t Defendant at the time when he mortgaged the suit property and that therefore there was no need for him to get spousal consent, I find that the mortgage transaction between the 1"' and 2nd Defendants is valid. This issue is answered in the affirmative.

## lssue 3; What remedies are auailable to the Parties?

- 42. Jhs lntt Defendant sought remedies from this court by f-rling a cross-claim against the 1"1 Defendant. The 2"d Defendant prayed that court orders the 1"' Defendant to pay the outstanding loan UGX. 78,86 1,856, interest at 25ok on the outstanding sum, general damages, and costs of the suit. - 43. The l"t Defendant in his testimony admitted that he had not fully paid back the loan. He further admitted that he is indebted to the tune of UGX. 56,OOO,OOO. In the Reply to the cross-claim, the figure admitted is UGX. 56,450,000. The bank statement admitted as DE 12 indicates an outstanding balance of UGX. 77,OOO,745. The 1.t Defendant in his testimony stated that he had since paid more money but that he did not know how much exactly he had paid. The l"t Defendant did not adduce any

evidence to prove that he had paid the outstanding balance. In the absence of evidence to the contrary I find that the 1^st Defendant is liable to pay the $2^{nd}$ Defendant a total of UGX. 77,000,745.

- 44. In conclusion therefore the main suit is dismissed. The Plaintiff and the 1^st Defendant shall each bear their costs. - 45. The cross-claim is allowed on the following terms: - a) The $1^{st}$ Defendant shall pay the $2^{nd}$ Defendant the outstanding loan balance of UGX. 77,000,745; - b) The $1^{st}$ Defendant shall pay interest on a) above at the rate of 18% from the date of filing the cross-claim; and - c) The $1^{st}$ Defendant shall pay the costs of the $2^{nd}$ Defendant.

## Dated this 25^th day of April 2024.

Patricia Kahigi Asiimwe Judge Delivered on ECCMIS

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