[2024] UGHC 1189

## THE REPUBLIC OF UAGNDA IN THE HIGH COURT OF UGANDA AT MPIGI

### **CIVIL SUIT NO. 101 OF 2021**

#### NAMBAYAGWE SILVIA.............. **.. PLAINTIFF** . . . . . . . . . . . . . . . . . . .

#### **VERSUS**

### 1. NAIGA ANNET

2. MUWONGE AGUSTUS

efedenty

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK

### Judgment

#### **Brief facts:** $10$

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It is the plaintiff's case that she is a widow of the late salongo Matovu Mayanja having celebrated customary marriage together and with whom they had three children but at the time of his death they were survived with only one child called Namavania Judith Chloe.

That during 2014, the plaintiff and her deceased husband purchased the suit 15 property and took possession of the same. They built there on a residential/matrimonial home and also cultivated thereon

That upon the demise of her husband, the defendants started harassing her by threatening her life and that of the child and then entered onto the suit land and evicted the plaintiff together with her family and they took possession of the same hence this suit.

#### Representation:

Counsel Matovu Akram appeared for the plaintiff. The suit proceeded exparte against the defendants who despite being served did not file their Written Statements of Defence nor did they attend trial. The defendants chose to file their $25$ joint Written Statement of Defence and witness statements without leave of court and this was done after court had visited the locus in quo. The plaintiff filed written submissions

#### Issues:

1. Whether the plaintiff's marriage is valid and whether she constitutes a lega 30 widow?

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- 2. Whether the suit property constitutes matrimonial property and if so, what rights accrue? - 3. Whether the defendants are trespassers on the suit land? - 4. What remedies are available in the circumstances?

#### Resolution of issues: $\overline{5}$

## Issue 1: Whether the plaintiff's marriage is valid and whether she constitutes a legal widow?

Counsel for the plaintiff cited Article 31(1) of the Constitution of the Republic of Uganda, 1995 which provides that men and women of the age 18 years and above have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution. And the Alai v. Uganda, [1967] E. A 596 and Section 1 of the Customary Marriages Registration Act on what constitutes a marriage and a customary marriage respectively. Counsel submitted that it was the evidence of PW1 and PW2 that the plaintiff and the late Salongo Matovu Mayanja got married under the kiganda Kwanjua customary marriage ceremony on the 26^th May, 2018. This was corroborated by the marriage certificate and a letter written by the Kabaka's agent. As such, this is proof that their subsisted a customary marriage between the plaintiff and Salongo Matovu Mayanja.

- In regard to the burden of proof in civil cases Sections 101 and 102 of the Evidence 20 Act provide that the burden of proof rests on whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts to prove that those facts exist of who would fail if no evidence is adduced at all. Therefore, the plaintiff bears the burden to prove his or her case on the balance of probabilities. - $25$

Section 103 of the Evidence Act is to the effect that the party who alleges the existence of a set of facts to prove such facts, it provides thus; the burden of proof as to any particular facts lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

In the case of Sebuliba v. Co-operative Bank Ltd, [1982] HCB 129, court while considering the above sections held that; the burden of proof in civil proceedings lies upon the person who alleges, therefore, to prove the alleged trespass, the burden of proof was squarely on the plaintiff.

The plaintiff in the instant case adduced evidence to prove that she was customarily 35 married to the late Salongo Matovu Mayanja as per the kiganda culture in 2018 through photographs and the evidence of PW2 who was present at the function.

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One of the marriages recognized is Uganda is customary marriage provided for under the Customary Marriages (Registration) Act. Section 1(b) of the Customary Marriages (Registration) Act, defines a customary marriage as follows:

## "A marriage celebrated according to the rites of an African community and one of the parties to which is a member of that community, or any marriage celebrated under Part III of this Act".

I find that the plaintiff's marriage was valid and she constitutes a legal widow. This issue is hereby resolved in the affirmative.

Issue 2: Whether the suit property constitutes matrimonial property and if so, what rights accrue?

Counsel for the plaintiff submitted that the late husband of the plaintiff built a residential home that they stay in and she used to cultivate on the land as a source of livelihood. Counsel cited the case of Yayeri Musaija v. Musaija Gideon and Others, Civil Appeal No. 0078 of 2016 where court cited the case of Muwanga v. Kintu, High Court Divorce Cause No. 135 of 1997, where it was stated that;

"Matrimonial property is understood differently by different people. There is always property which the couple chooses to call home, there may be property which may be acquired separately by each spouse before or after marriage. Then there is property which a husband may hold in trust for the clan. Each of these in my view should be considered differently. The property to which each spouse should be entitled is that property which the parties chose to call home and they jointly contribute to."

Counsel added that the plaintiff relied on a copy of the land purchase agreement, copies of the busulu receipts, photos of the matrimonial home and garden. That the plaintiff having been in occupation of the suit property with her child before the death of her husband is entitled to remain occupying the same since it constitutes matrimonial property. (See: Makuba James v. Warsemba Sikola, HCT-04-CV-CR-0005 of 2003).

In the instant case the plaintiff told court that upon her late husband purchasing the suit land, they settled on the same whereof she cultivated various crops as a 30 means of livelihood and they considered the property as their matrimonial home. Matrimonial property has been defined as that which the parties chose to call home. (Muwanga v. Kintu, (Supra)).

I find that the suit property in this case constitutes matrimonial property since it is what the plaintiff and her late husband chose to call home.

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$25$

In the case of Ambayo Joseph Waigo v. Aserua Jackline, C. A. C. A No. 0100 of 2015, Hon. Muzamiru Mutangula Kibeedi, J. A. observed that;

"After the enactment of the 1995 Constitution of Uganda, decisions regarding the property rights of married persons are now governed by Article 31(1)(b) of the Constitution of the Republic of Uganda, 1995 which provides for equal rights of spouses in the following terms: 'A man and a woman are entitled to marry only if they are each of the age of eighteen years and above and are entitled at that age...to equal rights at and in marriage, during marriage, and at its dissolution."

The Constitution also set out the other more general principles which court should always be mindful about when dealing with property rights of spouses namely: the supremacy of the Constitution (Article 2); equality and non-discrimination of all persons (Article 21): the right to private property (Article 26)', rights of the family (Article 31), affirmative action in favour of groups marginalized on the basis of gender, age, disability, or any other reason created by history, tradition or custom (Article 32); rights of women (Article S3): rights of children (Article 34; the general rules of international law and Conventions ratified by Uganda as part of our law (Article 123); and the values, norms and aspirations of the people of Uganda (Article $126(1)$ ".

I find that the plaintiff having occupied and utilized the suit property as her matrimonial home and derived sustenance from the same during the life time of her spouse is entitled to remain thereon even upon her husband's demise. This issue is hereby resolved in the affirmative.

#### Issue 3: Whether the defendants are trespassers on the suit land? $25$

Counsel for the plaintiff submitted that it was proved by the plaintiff through her testimony that there was unlawful entry by the defendants who unlawfully broke into her house and evicted her from it and went ahead and changed the padlocks denying her total access to the same. And the utilization of the defendants of the suit land was observed during the locus in quo visit. That the plaintiff also statedthat her late husband was the one who purchased the suit land and a sale agreement was executed to that effect and they used to pay busuulu for the suit land. That this was corroborated by PW2 and PW3 who stated that they found the plaintiff in possession and occupation of the suit land as a wife of the late Matovu. That the acts of the defendants amount to trespass and are not justifiable.

According to the case of Justine E. M. N. Lutaaya v. Stirling Civil Engineering Co. SCCA No.11 of 2002, trespass to land is premised upon interference with the

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$15$

possession of land. It was the testimony of the plaintiff that while she was away grieving the demise of her husband the defendants broke into her home, changing the locks and keeping her way from the same for about two when they called her to come and pick her belongings. The matter was reported at Jeza Police station. That since then the plaintiff has never been able to access her home and this has

$\mathsf{S}$ also cut her way of livelihood that she used to derive from the land.

I find the acts of the defendants constitute trespass. This issue of resolved in the affirmative.

### Issue 4: What remedies are available in the circumstances?

Counsel for the plaintiff relied on the case of **Obongo v. Kisumu Council, [1971]** 10 **E. A 91 at 96,** where court held that; when damages are at large and a court is making a general award, it may take into account factors such as malice or arrogance on the part of the defendant and this injury suffered by the plaintiff, as, for example, by causing him humiliation or distress. Damages enhanced on account to such aggravation are regarded as still being essentially compensatory 15 in nature.

That in the instant case the defendants chased the plaintiff from the suit land and have been in possession of the suit land since 2020 denying her access to her matrimonial home and garden for subsistence thus disorganizing the living and way of life of the plaintiff. That all effort to settle the dispute amicably has fallen on deaf ears and only resulted into insulting and abusing the plaintiff. Counsel implored court to exercise its discretion to award general damages it finds suitable.

The plaintiff also prayed for exemplary damages, a permanent injunction and costs.

In the case of **Charles Acire v. Myaana Engola HCCS No. 143 of 1993** it was held 25 that;

> "A Plaintiff who suffers damage due to the wrongful act of the Defendant must be put in the position he or she would have been if she or he had not *suffered the wrong."*

It is also trite law that in exercising the discretion to grant general damages, Court 30 should not punish the Defendant for the breach but, rather put the Plaintiff in the position he or she was prior the breach complained of. (See: Boschcon Civil & Electrical Construction Co., (U) Ltd versus Salini Construttiri Spa HCCS No. 151 of **2008).** Taking account of the inconvenience suffered by the Plaintiff as a result of the Defendant's acts, I am inclined to award UGX $5,000,000/$ = as general 35 damages to the plaintiff.

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I will make not award exemplary damages in this case because I find no justification of doing so.

I find that the plaintiff has proved her case against the defendants on a balance of probabilities and judgment is hereby entered in favour of the plaintiff in the following terms:

- a. A declaration that the plaintiff is the lawful owner of the suit land. - b. A declaration that the defendants are trespassers on the suit land. - c. An order of vacant possession against the defendants is hereby issued. - d. A permanent injunction restraining, prohibiting and or stopping the defendants, and/or their agents from entering, interfering with the plaintiff's ownership and possession of the suit land is hereby issued. - e. General damages of UGX 5,000,000/ $=$ are hereby awarded to the plaintiff. - f. Costs of the suit are awarded to the plaintiff.

I so order.

Right of appeal explained. 15

OYUKO ANTHONY OJOK

JUDGE

01/10/2024 $20$

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