[2023] UGHC 325

#### **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **CIVIL APPEAL NO. 15 OF 2021**

## **(ARISING FROM KALISIZO CIVIL SUIT NO. 046 OF 2018)**

**NABULYA FATUMA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS**

## **VERSUS**

## **1. MUKASA MOSES**

**2. SSERWADDA RONALD ::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

## *Before the Hon. Lady Justice Victoria N. N. Katamba*

## **BACKGROUND**

The Appellant instituted Kalisizo Civil Suit No. 046 of 2018 against the Respondents for a declaration that the sale of the suit Kibanja between the 1st and 2nd Respondents required spousal consent, a cancellation order and that it forms part of matrimonial property between the Appellant and the 1st Respondent. The Appellant stated that when she returned from visiting her parents, she found when the 2nd Respondent had constructed a house at the windows level. She tried to stop him in vain and instead constructed a perimeter wall to separate his construction project from where the Appellant stayed.

In their defence, the 2nd Respondent stated that the 1st Respondent informed him that he had separated from the Appellant and that she had since married another man, a one Muhammad Kiggundu. It is against this background that he purchased the suit Kibanja and that he found it empty. The 2nd Respondent also stated that the 1st Respondent showed to him a statutory declaration that demonstrated that he had separated from the Appellant.

The trial Magistrate Grade one, His Worship Mfitundinda George who heard and determined the suit between the parties found for the Respondents. He specifically held that the suit Kibanja did not constitute family property as to necessitate the requirement of the Appellant's consent before its disposal to the 2nd Respondent.

## **Representation**

The Appellants were represented by M/s Justice Centres - Uganda

The 2 nd Respondent was represented by M/s Nyanzi & Nyanzi Advocates

At the institution of the Appeal, the Appellant raised Five grounds of appeal to wit;

- 1. That the learned trial court erred in law and fact when he selectively evaluated the evidence adduced by the Respondents and disregarded the one adduced by the Appellant hence arriving at a wrong decision. - 2. The learned trial court erred in law and fact when he decreed and ordered that the suit Kibanja does not constitute family land hence occasioning a miscarriage of Justice. - 3. The learned trial court erred in law and fact when he decreed and declared that the Plaintiff's consent was not a requirement thereby arriving at a wrong decision of dismissing the Plaintiff's claim.

The Appellant filed her written submissions on 20th May 2022. Throughout the hearing of this appeal, the 1st Respondent did not appear. It is the 2nd Respondent and the Appellant that have been appearing. At the last appearance, the 2nd Respondent's Counsel hinted on a desire to settle the matter out of court. He also requested for a schedule to file the 2nd Respondent's submissions. No mediation report on success or failure of out of court settlement has been brought to the attention of this court iodate and the 2nd Respondent has still not filed his written submissions.

# **APPELLANT'S SUBMISSIONS**

On ground one, the Appellant submitted that it is not in contention that the Appellant is legally married to the 1st Respondent. A marriage certificate to that effect was tendered on the court record as demonstrated at page 5 of the record of proceedings.

The Appellant cited the case of Rwabinumi vs. Bahimbisomwe Civil Appeal No. 10 of 2009 in which Lady Justice Esther Kisakye held that matrimonial property is that which the couple choose to call home.

The Appellant submitted that she testified that she was at her home when the 2nd Respondent came and started constructing on her matrimonial home land. It was then that she discovered that there was a sale agreement by her husband to the 2nd Respondent that she did not know about.

The Appellant further submitted that the 2nd Respondent knew that the 1st Respondent was married but was deceived that the couple had separated and that the LC1 Chairperson knew about the separation. The 2nd Respondent also relied on the 1st Respondent's statutory declaration which was itself inconclusive on the matter.

In conclusion on this ground, the Appellant submitted that the learned trial Magistrate relied on oral testimonies of defence witnesses that stated that the couple had separated. That the Appellant had since married a one Mohammed Kiggundu to conclude that the suit Kibanja was not matrimonial property to necessitate spousal consent before sale to 3rd parties.

The Appellant argued grounds 2 and 3 jointly;

The Appellant cited *S. 39(1)(c)(i) of the land Act Cap. 227 which provides that no person shall give away any land intervivos or enter into any other transanction on land on which the person ordinarily resides with his/her spouse and from which they derive sustenance except with prior written consent of the spouse.*

The Appellant argued that the learned trial Magistrate ought to have appreciated that the Appellant had a vested interest suit land/kibanja the same being the place where the matrimonial home of the 1 st Respondent and the Appellant has been situated since 2004 to date.

The Appellant by and large repeated her submissions on ground one to prove these other two grounds and prayed that the decision of the lower court be set aside with costs to the Appellant.

# **DETERMINATION OF COURT**

I am alive to, and I have discharged the duty of this first appellate court which is to re-appraise the evidence and subject it to an exhaustive scrutiny and come to its own conclusions was as stated in a plethora of authorities like *Uganda Revenue Authority versus Rwakasanje Azariu & 2 Ors; CACA No. 8/2007; Fr. Narsensio Begumisa and 3 Ors versus Eric Tibebaga; SCCA No. 17 of 2002 and Banco Arabe Espanol versus Bank of Uganda; SCCA No. 08 of 1998.*

As earlier noted in the background, the 1st Respondent did not appear to defend this appeal. I have perused the record of this appeal and found no proof that he was notified of the Appeal. This court cannot make a decision against the 1st Respondent in the circumstances as to do so would be to

condemn him unheard contrary to Article 28 of the constitution of Uganda 1995 and the rules of natural justice.

In the premises, this appeal is dismissed against the 1st Respondent with no order as to costs and will only proceed against the 2nd Respondent.

The Appellant raised three grounds of appeal but her appeal is really about one aspect; Whether the suit land/kibanja is matrimonial property and that the trial Magistrate erred in finding to the contrary. This is the issue that is the three grounds. The Appellant actually struggled to submit on all the three grounds separately by having to repeat the same submissions.

This court will therefore resolve all the grounds jointly in the above stated issue.

The evidence on the record of this court shows that the 1st Respondent was married to the Appellant on 29/08/2004. The marriage certificate was well tendered on the court record without any objection from the defendants.

The Appellant testified that in April 2008, the 2nd defendant put bricks and sand on the compound of her home while she was at work. A child reported to her at the hotel where she works. She came and stopped him. When she went to visit her parents, she found when the 2nd Respondent had constructed a house on her land and it was at the windows level.

The Appellant testified that she did not consent to the sale between the 1st and 2nd Respondent of the suit Kibanja and that she only got to know about it when the 2nd Respondent brought sand and bricks on the land. She also stated that she had planted beans and banana plants on the suit land but the 2nd Respondent destroyed them.

The Appellant's testimony was not challenged in cross examination.

DW4, Lutaaya Khalid Busungu testified that the Appellant used to be the 1st Respondent's wife but that that they separated. He also testified that he witnessed the sale agreement and that there were scattered banana plants on the suit Kibanja.

I note that DW4 testimony is in tandem with that of the Appellant that indeed there were banana plants on the suit land. This narration supported the Appellant's case that the suit land was matrimonial property from which the family drew sustenance.

I also note that whereas the Appellant proved her marriage to the 1st Respondent, the Respondents and their witnesses did not prove their allegations that she had separated from the 1st Respondent nor that she was divorced from him. The claim that the appellant was remarried to Mohammad Kiggundu was not substantiated nor was the claim that she had given birth to two more children with the said Mohammed Kiggundu.

I have also examined DEX DE1which is a statutory declaration that the 2nd Respondent relied on to confirm that the Appellant had separated from the 1st Respondent and made the following observations;

- 1. It was addressed to FINCA Bank and not to the 2nd Respondent. - 2. It contains falsehoods that the Respondent has been involved with a woman in a known marriage but is currently unmarried without proof of divorce. - 3. It has another falsehood that his spouse is abroad without evidential proof.

The burden of proving that the vendor has good title to what s/he is selling lies with the intending purchaser. This is the principle of caveat emptor or buyer beware. A careful examination of this statutory declaration was sufficient to deter a bona fide purchaser from committing to this kind of transaction. One cannot say in the same statutory declaration that he is married, then states that the spouse is abroad and that for that reason he does not require a spousal consent to dispose of matrimonial property. What if the spouse is abroad on study leave? Would s/he still be considered separated and does separation confer proprietary rights to a spouse? Answering these questions does not justify transacting in matrimonial property.

In conclusion, since the Appellant proved her case of marriage to the 1st Respondent and even the defendants' witnesses acknowledged that the suit land had on it banana plants, I find that the learned trial Magistrate erred in finding that the suit land was not matrimonial property and that spousal consent was not required before its nor that she was divorced disposal.

The learned trial Magistrate overly relied on sweeping statements that were made by the Respondent's witnesses that the Appellant was married to another man and had separated from the 1 st Respondent. Separation was never proved and besides separation without a formal court pronouncement on distribution of property does not confer sole proprietorship rights to the spouse in possession to justify dealing in them as s/he wishes.

The grounds of appeal are upheld and the appeal is allowed against the 2nd Respondent.

Orders:

1. The Appeal is allowed against the 2nd Respondent.

2. The Judgment and orders of the lower court are set a side

3. The Orders of the learned trial Magistrate are substituted with the reliefs that were sought by the Plaintiff to wit;

a) An order issues nullifying the 2nd Respondent's purchase of the suit Kibanja

b) An eviction order issues against the 2nd Respondent.

c) A permanent injunction issues restraining the 2nd Respondent from further trespassing on the suit kibanja.

3. The 2 nd Respondent is to meet Appellant's costs of this court.

Dated this 16th day of February 2023.


# **VICTORIA NAKINTU NKWANGA KATAMBA**

**JUDGE**