[2000] UGHC 37

THE REPUBLIC OF UGANDA

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IN THE HIGH COURT OF UGANDA CIVIL SUIT NO. 0828/94

PLAINTIFF

## **VERSUS**

. DEFENDAN

BEFORE: THE HONOURABLE MR. JUSTICE R. O. OKUMU WENGI

PELLY SASIRA....

JOHN MUTEGEKI........

## JUDGEMENT

The parties to this suit cohabited as man and woman and were soured blessed with several issues. As their union secured over the years a separation that is twelve years old now, was inevitable $l$ -ading to claims over the assets. In this suit the female partner sued the man for a share in property to wit land and house in Kitintale Luzira Kampala on the basis that the same had been purchased on equal basis by the two. She also claims damages for deprivation and an order restraining the defendant who had subdivided the land from disposing off parts thereof. In the written statement of defence the defendant vehemently denied being a Tanzanian titizen as pleaded in the plaint and contended that the property subject of the suit was his personal property having been acquired by him to the *written* prior to his meeting the plaintiff. Annexed statement of defence are a copy of Uganda Passport No. 552(1 and a Certificate of Title for Mailo Block 243 indicating the already subdivided plots. The Registered proprietor is the defendant who Was sequifiered $\sqrt{w.e.f}$ 23/4/1976.

At the hearing it was established that the parties had at

least three children the eldest of whom was born in 1975. The defendant however disclaims paternity to the latter born children of the plaintiff who number six. According to exhibit P.1 the first born of the couple was born on 5th December 19 $\sqrt{5}$ with the defendant as the father. This would imply that the parties began to cohabit in a personal way as far back as early 1975 before the suit land was acquired the following year. Besides this first child the plaintiff put in proof of her marriage to the defendant an identity card referred to as a marriage identity card issued on 15/8/82. It has the photographs of the then younger couple on either side of the inside of the card with descriptions of each other signed by the plaintiff as holder and by the defendant as The card is also signed by the Mengo Paris! Chief and Husband. describes the marriage as a customary one.

In his testimony the defendant admitted to the relation; hip having started in 1975 and enduring to the point when they had three 1988 the It also transpired that in children he accepted. plaintiff was involved in a terrible motor accident. There were $Septemb-*i*$ also exhibited letters dated November 1987 and Nov. 1988 when the plaintiff endearingly referred to the defendant as "Nama Moses" (after the first born). The letters referred to certain financial: transactions that were of a joint nature. And this is the case of the plaintiff that in their union there were joint business and accounts run by them and out of this joint effort the suit land was acquired and partially developed. On his part the defendant denies any joint contribution by the "plaintiff.

Having heard the evidence on either side, it is not in doubt

that the two as of now loathe each other in a particularly bitter way. This disgust with which the defendant regarded the plaintiff lurked throughout the trial and at times burst out into in outrage requiring court intervention for order to prevail. On the other hand there was an ominous calmness on the part of the plaintiff who is in occupation of the suit property, that way most amoving and taunting to the defendant. On the whole therefore though I find that there was a customary union between the two people and several issues that union long ceased to exist. In court there was always a tense atmosphere of the cat and dog animosity as each one resented and repelled the other greatly. Looking back at the nice f aces in the marriage identify card photographs, it was difficult to believe how hate and may be age had transformed the two love birds into monsters to one another. Any slight word by the plaintiff would gall the defendant into a ferocious outburst made even worse by the plaintiffs taunting calm. There was also admission that the plaintiff had entered and occupied the house on the suit land and remains in possession thereof up to today. She first occupied the house in 1988 just prior to the fall out or as a prelude to it. There is also no doubt that the land is registered in the names of the defendant who thus asserts an indefeasibility of title and wants the plaintiff removed therefrom forthwith. The defendant asserts that he purchased the land and built the house single handedly. He further asserts that the defendant seized and occupied the house without his consent. However on this one there is evidence that he was aware that she ! was moving to occupy the house while he was away, but his consent

was not express or forthcoming. She also could have gone into the house out of necessity to find a roof over her hea $\mu$ with the children, regardless of defendants consent or indeed inspite of culti lack of it.

main issue therefore to be decided is whether the claim The by the plaintiff to contribution in the acquisition and $\phi$ evelopment of the suit property is sustainable in law and what remedy is available to her and or to the defendant in the circumstances of There is some evidence that the two had, joint this case. commercial undertaking. But the acquisition of the land in the: names of the defendant tended to exclude the woman from making a allegedly make legal claim founded on this contribution in circumstance of mutual It is clear that even if the woman contributed which affection. she did in some way, this was not reflected in the certificate of title. She could then only claim a spollsal equity in the property. Such equity can flow if there is evidence which seems to be sufficient to show that she made some contribution. And naturally there is a convergence of women's and children's rights in family. property such that the rights of the children bolster the spotsal equity in favour of the woman since they all occupied the house tenable as affirmative with the mother. This would clearly be action to protect such interests based on equity. Indeed the 1995 constitution of Uganda advances the principle of equality as between the partners in the family and also emphasizes the interests of the child. But I am aware that this is sue is of controversial proportion such that the proposed Domestic Relations law h as got stalled on this very issue.

There is however authority for me to uphold the sponsal as a spouse equitable interest of the plaintiff in the part of the plaintiffs land which she is in physical possession of and the acquisition of which she made a modest contribution for. In her evidence the plaintiff testified that she operated a joint account with the defendant. It is probably this joint account that was the subject of the defendants note to the plaintiff of November 1987 (exhibit P.6) and September 1998 (exhibit P.7). Although they relate to a period long after the acquisition of the suit property these exhibits indicate that an account was being jointly operated during The plaintiff testified that she contributed shs. the Union. $12,000/$ = in 1976 for the second installment for the property. This money she stated was from her personal account. Thereafter in 1983 the plaintiff went to plant crops on the land which was Later in 1985 she again signed a joint eventually developed. cheque for shs. 3000,000 out of the joint Burascho Wood Industry accordup.lo-her account. The developments on the land were also accomplished out of proceeds from the joint business. From the evidence on record the union lasted the couple were sufficiently endowed the time Indeed the defendant in a with some considerable affluence. peculiarly boisterous masculine claim asserted that he made his own money as an indentor and wholesaler. He further testified that he acquired several estates in land at Kalinya (64 acres) one square I am convince, having mile at Singo and other lands in Masaka. listened to the plaintiff that she truthfully testified in proof of However the land was her contribution while the union lasted. registered in the defendants names to her exclusion. This in my

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an finilable view is not conclusive evidence that she was not a stakeholder. Indeed it is my view that she had an unregistered interest in the land. The registration of the title in the defendant's names could this unregistered interest. Taking this argument be subject further it would have been unlawful for the defendant to evict the plaintiff from the house on grounds of equitable estopped as will become clear.

There is authority as I stated earlier on this if it is Although the English Womens Property Acts 18 2 are not needed. part of our law, their principles were applied through precedent in our jurisprudence: See Moonlight Sengooba vs Administrator in this Case General (1974). This court stated that it had power to determine ownership of matrimonial property. Where a wife contributed a substantial amount of money in building a matrimonial home the courts have held that such home is beneficially owned by the husband and wife jointly in equity and neither party is entitled as of right to expel the other: Edith Nakiyingi vs Merekisadeki HCB 107. The same principle of spo $k$ sal equity $\sqrt{a}$ s upheld $(1978)$ in <u>Lule Salongo vs Makulata Nalongo</u>. Miscellaneous Application No. 12 of 1982 (unreported) The former case of Nakiyingi vs Merekizadeki followed the English decision in Heseltine vs Heseltine (1971) I AER 952. The direct contributions $c$ a house falien further and wife have been settled by the Court of Appeal of Tanzania in the case of <u>Hawa Mohammed vs Allysefu</u> Civil Appeal No. of 1983 (unreported) where domestic services of a house wife were taken to constitute a contribution in the acquisition of matrimonial<br>In this case There is evidence of financial Contribution beyond dompstre concerned

property. This court is therefore inclined to find that on the

evidence in the present case the plaintiff contributed to the acquisition of the property subject of this suit as well as its subsequent development. The title of the defendant is subject to that contributory interest of the plaintiff. She is therefore entitled to hold on to the piece of the land currently in her occupation which should be parcelled out of the now subdivided plot tole deed issued in the public herself and for the benefit of the defendants children with her. In the nterim an injunction is issued to restrain the defendant from interfering in il Subruct the plaintiffs occupation, user and convership of this property since he has on his own accord subdivided parts of the original plot 50 and sold off the parcelled plots to his personal advantage without taking into account the interest of the plaintiff.

There is another angle to this approach. This is that under 1995 contribution of Uganda (and the defendant rehemently the denied being a Tanzanian National) woman and man have right to marry and to found a family and are entitled to equal rights during marriage and at its dissolution. Women are also to be accorded equal dignity of the person with men. In the family enterprise for production and reproduction there arise rights and obligations. As such laws hitherto applicable such as the doctrine of indefeasibility of title to land would apply in such $\mathfrak h$ way that Einstable they conform to womens property rights in property aquired in marriage and in particular when a woman has contributed to its acquisition and development. The hither patriarchal and male dominant culture of registering such property in the husband's name to defeat the unregistered but basic interest of the wife $\mathsf{must}$ give

way to the new gender paradigm in the constitution. Indeed in this case the defendant has subdivided the original plot into six or so different sub plots. This is not equality even if she retains one piece and the defendant sells as he has done all the rest. In my mind equality must mean 50% for each equal partner. But since we are dealing with Constitutional and spotsal equity and since there is no valuation of the piece the plaintiff has taken as against those pieces the defendant has alienated the plaintiff has to contend herself. with the piece she has acquired through the $\angle$ private remedy of feminine spite and stubborn resilienc.

This brings me to the other aspect of this matter. $|$ It is now 12 years since the plaintiff forced her way into the suit property against the consent of the defendant. There is a doctrine $\alpha$ of prescription founded on adverse occupation. There could be no less adversarial occupation like in this case when spoksal love got replaced by the repulsion of a marriage gone sour. Section 6 of $i$ wi $G$ the Limitation Act would come in and enable the self help act of a defected woman to enforce her equitable rights and give her a legal title. If further authority is required, the Kenya Court of Appeal $\mathcal{L}$ has decided on this point of limitation in the case of $K$ see Maweu and others vs Kiu ranching Cooperative Society (1982 - 88) I KLR I would hold that the adverse occupation of the pioperty by 746. the plaintiff from 1988 to January 2000 for wold have 12 years had given rise to an unequivocable right of the plaintiff to But this convert be so since part of that period connectes with the pendency of the

property. A In-so doing I must find for the plaintiff and grant her what she gets is nive-limiths of the herefore an order for registration of her name as owner of the lime with c<br>is possessing to the sclusion of the part defendant of the sie of lard<br>on which the house aborrontly party defendant of the city on which-the house she currently occupies stands and therefor and Who may not alienate the program

erdert rectifying the register. She is also entitled to costs of this suit and an injunction restraining the defendant his servants agents or assigns from disturbing her quiet enjoyment of the land occupies and developments. The court also orders that the plain iff bolds this land in the further trust for the children she bego: with the defendant.

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R. O. Okumu Wengi

<u>Judge</u> 28/3/2000

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Mr Richard Olialany for Smell An Prevenda for $|z| = -1$ Defenced and confictance

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