Birungi v Otim (Civil Suit 166 of 2014) [2015] UGHC 19 (1 December 2015)

Full Case Text

**THE REPUBLIC OF UGANDA**

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

#### **CIVIL SUIT NO, 166 OF 2014**

**STELLA BIRUNG! PLAINTIFF**

## **VERSUS**

**MOSES OTIM DEFENDANT**

### **BEFORE: HON. LADY JUSTICE P. BASAZA WASSWA**

#### **JUDGMENT**

*IO (herein afterreferred to as the "suitproperty") andland(a Kibanja) at Buyala, Budondo in Jinja (hereinafter referred to as "the land at Buyala", or* in the alternative for the payment to her in cash of the value of 50% of the suit property and the Buyala land. The Plaintiff also seeks mesne profits, general and punitive damages and costs of the suit. **[1]** The Plaintiff filed this suit in August 2014 against the Defendant. In her Plaint she seeks inter, alia for orders for the sale of land comprised in *Block 101 Plot 724 at Misindye in Seeta*

**[2]** In his defence the Defendant denied the allegations in the plaint and contended that he Purchased the suit property and that the Plaintiff contributed nothing at all to the purchase but The Defendant singlehandedly erected the residential house and is registered on the title. a developments on the suit property and the Defendant has no interest therein at all. He

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kill the Defendant, the Plaintiff poured boiling water on i also contended that in an attempt to •-'ertify that this is a'tru^

Copy of the Original '""'TSs 2 9 JAN 2G16 •sistani / Deputy Registrar **TTNJA**

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him but he survived with severe burns. The Defendant got restraining orders against the Plaintiff.

### Background

[3] The brief background to this case is that the Parties to this suit were lovers who cohabited /O extent that the Plaintiff was forced out of the home by virtue of a court order (EXB. P. 7), and the Defendant was hospitalised. While in cohabitation, the suit property was purchased and registered in their joint names, and the land in Buyala, Budondo, Jinja was acquired. The *i* S differences in opinion are the reason for this suit. for a number of years. Their relationship soared culminating into having three (3) children together. Regrettably the relationship then took an unpleasant turn and in 2012 soured to an

[4] In their joint scheduling memorandum filed in court on 19th January 2015, the Parties agreed on the following issues;

- 1. Whether the Plaintiff and the Defendant are entitled to equal shares in the suit property - 2. Whether or not the land at Buyala is jointly owned by the Plaintiff and the Defendant. - 3. Whether the Plaintiff is entitled to the remedies sought.

However at the commencement of the trial, both Counsel agreed to reduce the agreed issues to two issues, to wit; 1 & 3 above. Issue No. 2 was abandoned.

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[5] In their said joint memorandum the Parties listed the following facts as agreed facts;

- 1. The Plaintiff and the Defendant had since the year 2000 till late 2012 been cohabiting as girlfriend and boyfriend and had three (3) issues together of whom one is deceased and by court orders dated 16th May 2014 each have custody of one child. - 2. In 2007 and 2008, the Parties jointly acquired the land at Buyala.

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- 3. Both Parties are registered on the certificate of title to the suit property. - 4. The certificate of title and the Purchase agreement for the suit property is in the custody of the Defendant.

[6] At the trial the Plaintiff was represented by Mr. Gad Wilson of Messrs Kampala Associated Advocates while the Defendant was represented by Ms. Zemei Susan of Messrs Zemei, Aber Law Chambers. The Plaintiff did not call any other witness, she testified as PW I. The Defendant had three (3) witnesses; (DW I); Oloka Columban - a Civil Engineer, (DW II); the Defendant and (DW III); John Otim Apote - the Defendant's young brother.

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[7] The Plaintiff (PW I) testified (in summary) that;

I Certify that this is a true Copy of the Original 29 JAN 2016 Assistant / Deputy Registrar JINJA

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- a) The Plaintiff was in a relationship with the Defendant between 2000 and 2012 and were not legally married. They stayed together for twelve (12) years and had three (3) children, one of whom is deceased. - written after all the money was paid. The Plaintiff paid % (UGX. 1,750,000/=) of the purchase price for the suit property in 2005 at the time she b) I he Plaintiff and the Defendant bought the suit property together which is registered in their joint names. Refers to the certificate of title, EXB. P. 1. bought the suit property at UGX. 3,500,000/= and the agreement (EXB. P.3) was was gainfully employed in MTN as a Customer Service Advisor reference to her employment contract; EXB D. 1 and D 2 (a - g). The Plaintiff and the Defendant - c) The Plaintiff contributed whatever she had forthe construction of the developments on the suit property. She contributed towards building materials, she did the kitchen and the garden. She had just delivered through Caesarean Section and used to give the *(5* Defendant the money. She has no receipts and cannot recall the actual figure of her 2009. The Defendant contracted the people who did the construction of the house, save the kitchen and the compound for which the Plaintiff contracted people personally in 2010. contribution. The construction of the house begun in 2007 and was completed in - d) The Plaintiff and the Defendant lived in the suit property with their children until the Defendant threw the Plaintiff out of the suit property in 2012 and denied her access by virtue of a court Order dated 19/10/12; EXB P. 7.

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e) The Defendant got someone else. She referred court to photographs of a traditional marriage of the Defendant with another woman on 8th January 2014; EXB P. 2

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- f) The Plaintiff was arrested in December 2012 when she was pregnant and she lost the pregnancy. She was arrested with her one year old baby. She and her son; Mario Otim, now three years old, have HIV and take Anti Retro Viral (ARV) drugs - order. Their nine (9) year old daughter lives with the Defendant in the suit property. g) By a court ruling dated 16'h May, 2014; EXB P. 5, in the Magistrate's Court at Mukono, the Plaintiff and the Defendant were each given custody of one child. The Defendant pays UGX. 350,000/= per month for the maintenance of Mario Otim by virtue of a court - h) The Plaintiff does not want to go back to the property as there is already someone been on medication since 2009. else. She and her son have nowhere to stay and she is not strong anymore and has - i) Criminal case no. 996 of 2012 that was against the Plaintiff, was dismissed for want of prosecution. Reference to EXB. P. 8. The Defendant accused the Plaintiff of causing him grievous harm. The Plaintiff and the Defendant had domestic fights while living together, and she left the home in December 2012 after one such domestic fight. She was beaten that day by the Defendant and she miscarried her baby. - **i)** The Plaintiff has never seen the Defendant in the state he was in as perthe photograph marked EXB. D.12. - k) The Plaintiff admitted during cross examination that she had a customary marriage with a one Kayuza Suleiman as per a certificate of marriage dated January 1998; EXB.

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married to another person. She did not hide her marriage to Kayuza from the Defendant.

I) The misunderstandings between the Plaintiff and the Defendant started when they lost their child Mathew in 2011 and the Plaintiff went into a depression. Three months after she realised the Defendant had an affair with a workmate who become pregnant.

[8] DW1; Oloka Columban testified (in summary) that; 70

- a) He is a civil engineer who was contracted by the Defendant in 2007 to do the drawings for his residential flat at Misindye. He prepared the drawings and the bills of quantities in 2007 and 2008 respectively. - b) He constructed the flat at a total cost of UGX. 476,785,617/= between August 2008 and August 2009. Reference to the Bills of quantities EXB. D. 4 and to a contract between himself and the Defendant dated 10/08/2008 EXB. D. 5. *i* - c) The Defendant purchased all the materials. He did not receive any contributions for the works from the Plaintiff.

[9] The Defendant (DW II) testified (in summary) that;

a) He met the Plaintiff in 1999 and started a relationship with her in 2003. They Cohabitated between 2005 and October 2012, and together had three children, the

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eldest is ten years old, born in 2005, the next child in 2009 and the last was born in 2011.

b) He acquired the suit property land in 2006 from Jomayi at UGX. 3,500,000/= as per a sale agreement (EXB. P. 3). He signed EXB. P. 3 as the Purchaser, while the Plaintiff signed as a witness. Both receipts for UGX 3,000,000/= and UGX 500,000/= (EXB P.2) are issued in his names

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- because by then they already had a child by 2005. c) He asked the land office and the seller; Jomayi to include the Plaintiff on the title / O - d) He singularly paid for all the developments on the suit property that total to UGX. 476, 785,617/= as shown by the bills of quantities and the construction contract. (EXB. D.4 and D.5 respectively) - e) He financed the construction of the developments on the suit property from various contracts / assignments he had with M/s Tullow Uganda, Umeme Ltd, Ministry of Energy, African Wildlife Foundation and with COWI Uganda Ltd as shown by EXBs D. 7(a-e), D.8(a- g), D. 9, D.10&D. 11. - f) The Plaintiff poured hot water on the Defendant; scalding him. He obtained a court order (EXB. P.7) restraining the Plaintiff from coming to the suit property. A Criminal case No. 996 of 2012 (EXB. P. 8) was also opened against the Plaintiff at the Chief Magistrates in Mukono. - When the Defendant learnt of it, it was g) The Plaintiff was married to someone else. not possible to get married and to trust the Plaintiff because she was in another

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[10] DW III; John Otim Apote, testified as the Defendant's young brother to the effect that; he $\varsigma$ did the clerical work on the site for the construction of the developments on the suit property. Purchases of all the building materials were done by either the Defendant personally or by DW III on behalf of the Defendant.

# ISSUE 1: Whether the Plaintiff and the Defendant are entitled to equal shares in the suit $10$ property

[11] In his written submissions, Mr. Gad Wilson for the Plaintiff argued that, since the Proprietorship of the Plaintiff on the certificate of title cannot be challenged, as no fraud was pleaded, the interest owned by the Plaintiff be determined. Counsel relied on sections 56, 59 and 77 of the RTA and Megarry & Wade, the Law of Real Property, 7th Edition page He submitted further, citing the case of Julius Rwabinumi vs. Hope 489-92 & 496. Bahimbisomwe SCCA No. 10 of 2009 that the Plaintiff made substantial non-monetary and some monetary contributions to the purchase and construction of the suit property and is entitled to an equal share therein.

[12] In answer, Ms. Zemei for the Defendant submitted that there was no evidence whatsoever adduced by the Plaintiff to prove that she made any contributions towards the purchase and development of the suit property except merely stating that she made She argued that the Plaintiff failed to contributions that she could not even estimate.

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discharge her burden to prove her allegations. Counsel relied for this on the casejof: **Jonathan Kirasha vs. United Assurance Co. Ltd HCCS No. 681 of 2004 and Progressive schools & Anor vs. Serunjogi** & **Others [2001** - **2005] 2 HCB12.** Counsel concluded by submitting that court rejects the evidence of the Plaintiff for being what she referred to as *'fertile imagination anda pack oflies" with* intent to defeat the ends ofjustice. She argued that the **Rwabinumi case (supra)** does not apply to the present case.

**[13]** In rejoinder, Mr. Wilson in principle^more or less reiterated his earlier submissions.

# **Decision of Court (Issue No. 1) I**

**[14]** It is not contested that both Parties to this suit are the registered proprietors of the suit property as shown on the certificate of title **(EXB.** P. 1). It is immaterial who of the parties, or that one party paid more or the other less or not at all, for the purchase of the suit property. The suit property belongs to both Parties jointly by virtue of both being registered as proprietors on the certificate of title. The Plaintiff claims to have paid UGX. 1,750,000/= as 50% of the purchase price of UGX. 3,500,000/=, while the Defendant in whose names the receipts (EXB. P. 2) for the purchase of the suit property were, claims that he paid the full purchase price of UGX. 3,500,000/=.

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**I** land in equal shares. See section 56 of the RTA. By virtue of the provisions of **sections 56 and** 59 **of the RTA, I** hold that the Plaintiff and the Defendant hold the suit property in the present case. equal shares. For this holding, I am guided by **SCCA No. 63 of 1995: Aziz Kalunqi Kasujja and Naume Tebekanya Nakakande,** whose facts are in principle, the same as the facts in two or more persons are entitled as tenants in common to undivided shares of or in any land, those persons shall in the absence of any evidence to the contrary, be presumed to hold that **[15]** It is settled law that every certificate of title issued under the Registration of Titles Act Cap. 230 (the RTA). shall be received in all Courts as conclusive evidence that the persons named therein as the proprietors are seized or possessed of that estate or interest or have that power in that land. See section 59 of the RTA. It is also trite law that where two or more persons are registered as joint proprietors of land, as is in the present case, the joint proprietors shall be deemed to be entitled to the land as joint tenants; and in all cases where

seeking inter alia orders that court severs owned so that it may vest in her solely as owner. **[16] In** the **Aziz Kalunqi Kasujja case (supra),** the Appellant (Kasujja) and the Respondent (Nakakande) grew up together as brother and sister and shared parcels of land they acquired together and registered some of them jointly in their names, until differences of opinion occurred between them. The Respondent sued the Appellant in HCCS No. 625 of 1984 her interest in each of the parcels of land jointly The Respondent resisted the Respondent's

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claims and countercfaimed that he was entitted to the whde of the iands registered in their joint names by virtue of a letter which he claimed offered some land exchange.

In his Judgment, *Karokora JSC stated;*

/O *entitled to trace the other halves of each of the Plots from the trustee. Jn my view, in the absence ofevidence that the Appellant was a trustee for the benefit \ "It must be observed that the land is registered in both the Respondent's and the Appellant's names as joint tenants. The title deed of the Plots specifically state that they are both joint tenants. I don't think that there is any amount of oral evidence that would change the status quo, unless there was evidence, which was not adduced, that the Appellant was holding the other halfon behalf and for the benefit of the Respondent in which case the Respondent would be of the Respondent, I think section 56 of the RTA would leave the land in the names ofthe persons appearing on the title deed. No amount of oral evidence or other evidence according to section 90 of the Evidence Act would change proprietorship ofthe Plots...since there was no evidence offraud on the part of the Respondent regarding acguisition of the Plots referred to in paragraph 4\_gf the Plaint, each of the Parties must get half of each of the Plots enumerated in that paragraph''* (Emphasis added).

deemed to be entitled to the suit land as joint tenants; [17] Likewise, in the present case, since the Plaintiff and the Defendant are registered as joint Proprietors of the suit property, they are

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*3* and in the absence of any evidence to the contrary, are presumed to hold the suit property in equal shares.

*/o* was not the cause of their challenges. She attributed their challenges to the loss of their child [18] I nave addressed my mind to the issue raised by the Defendant at the hearing; that the Plaintiff was customarily married to a one Suleiman Kayuza as shown in a customary Marriage certificate **(EXB.** D. 3) and that when he discovered this, it was not possible to get married to the Plaintiff nor to trust her because she was in another marriage, and that, that is when they started having challenges. On her part, in answer, the Plaintiff contending that her customary marriage to Kayuza, from whom she had separated in 1998 before meeting the Defendant, depression, and to an affair that the Defendant had with a workmate who later become pregnant. It is apparent that this argument by the Defendant was an attempt to impute dishonesty and misrepresentation and thus fraud on the Plaintiff in a bid to support his claim that she is not entitled to an equal share in the suit property. In *Black's Law Dictionary, 9th. ed. At page 731, Fraud is defined as; "a knowing misrepresentation of the truth or concealment ofa material fact to induce another to act to his or her detriments* Mathew, in 2011. She asserted that the loss of their child resulted into her going into a

**12** This was not done. It is now **[19]** I hold the view that these assertions of the Defendant being forms of fraud, cannot be sustained on account that they ought to have been specifically pleaded and strictly proved, well settled that fraud means actual fraud or some acts of

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dishonesty and or misrepresentation, and that fraud must be specifically pleaded and strictly proved. Theprovisionsof0.6rule3oftheCPRaremandatory. The provisions are couched in mandatory terms that:

*In all cases where the party pleading relies on any misrepresentation, fraud, breach oftrust, wilful default or undue influence, and in all other cases in which particulars may be necessary, the particulars with dates shall be stated in the pleadings"* (Emphasis added) JO

Also see the celebrated cases of: Frederick Zaabwe vs. Orient Bank Ltd & 5 Others SCCA No. 4 of 2006, Kampala Bottlers Ltd vs, Daminico Ltd, SCCA No, 22 of 1992 and J. W. R Kazoora vs. M. L. S. Rukuba SCCA No. 13 of 1992 that enunciate this strict requirement.

The Defendant ought to have shown and proved in his pleadings and evidence that there was misrepresentation or dishonesty by the Plaintiff that induced him to register the suit property in their joint names, and that such misrepresentation and or dishonesty warrant the disentitlement ofthe Plaintiff to share equally in the suit property. On the contrary, the defendant told court in reference to theirjoint proprietorship on the certificate of title that, I quote,

*"It was my request to lands and to Jomayi to have her included in trust for the sake ofmy children. I made a formal Request".*

This reason given by the Defendant, out of his own conviction, for including the Plaintiff on the title Is still a valid reason. The Plaintiff bore the two children that the Parties share, this has not changed and will not change. The Plaintiff remains their mother.

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- **[20]** I have also addressed my mind to the Defendant's other assertions against the Plaintiffs entitlement to an equal share in the suit property on account that he believes he singularly constructed the developments thereon, to a tune of **UGX. 476,785,617/=.** He relied on the estimates in the Bills of Quantities and the valuation report marked **EXB.** D. 4 & D. 6 respectively. With all due respect to the Defendant's Counsel; Ms. Zemei, this argument has no merit. I hold this view in light of my earlier holding, but also propped by the recognition of various courts in a wealth of cases of the *non-monetary contributions of one spouse, to* - *non-monetary expenses may include payments for household expenses, preparation of food, purchase of children's clothing, organising children for school, andgenerally enhanced welfare ofthe family that amounts to substantial indirect contribution to the family income and assets. These contributions entitle a spouse to an equal share in the couple's jointproperty. It is impracticable to take accounts ofthese contributions of the Parties in the management of the home.* For this rationale; see the Judgment of Dr. Esther Kisaakye JSC in **Julius Rwabinumi vs. Hope Bahimbisomwe SCCA No. 10 of 2009** where she cited the following cases with approval, where this principle was enunciated; *enable the other spouse to either acquire or develop the property in question. These* **/ P** - **Appeal of Kenya !. Muthembwa vs. Muthembwa [2002] 1 EA page 186, Judgment of the Courtof** - **2. Kivuitu vs. Kivuitu 1990-1994 E. A Kenya age 270, Judgment of the Court of Appeal of -XO** - **14 3. Kagga vs. Kagga H/C Divorce Cause ftp. Mwanqusya J (as he then was) -4tof 2005 (unreported) Judgment of " \* 'ie** *23 JAN 2016 \**

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## **4. Sempiqa vs. Sempiqa Musajjawaza H/c Divorce Cause No. 7 of 2005 (unreported)**

## **5. Muwanqa Vs. Kintu H/C Divorce Appeal No. 135 of 1997.**

in those cases can be squarely applied to the present case, even if the Parties in this suit were not married to each other. I hasten to qualify though, that if the Plaintiff and the Defendant were not joint proprietors of the suit property where sections 56 and 59 of the RTA applied, my decision would have been different. **[21]** Although these cases cited were, unlike in the present case, in respect to married couples, the concept of two people staying together in the family way, is however the same. The couples in each scenario shared a home and children and therefore the rationale applied

**[22]** For the reasons given under paragraphs **[14** - **21]** above, Issue no. 1 is accordingly answered in the affirmative; *the Plaintiff and the Defendant are entitled to equal shares in the suitproperty comprised in Block 101 Plot 724 at Misindye in Seeta.*

## **ISSUE 2: Whetherthe Plaintiff is entitled to the remedies sought 2-0**

**[23]** Having held as I have under issue No. 1, and the parties having agreed in their joint scheduling memorandum that they jointly acquired the land in Buyala Budondo in Jinja, **(Section 57 of the Evidence Act), I** decide this issue in the following terms;

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- **1.** *Buyala, Budondo in Jinja.* an equal share in the land *(Kibanja) at* The Plaintiff is entitled to an equal share in the Suit property comprised in B/oc/r **101 P/of** *724 at Misindye in Seeta* and - 2. use of the suit property by virtue of a court order in Miscellaneous Application No. 209 of 2012 **(EXB** P.7) that was as a result of circumstances for which both Parties ZO were responsible, and not out of his own selfish conduct. The Plaintiff is not entitled to mesne profits as prayed for or at all, nor to general or punitive damages. I have considered that the Defendant retained possession and

**[24]** In the final result, I Order that;

- 1. The Defendant shall retain the suit property comprised in *Block 101 Plot 724 at Misindye in Seeta* and is ordered to pay to the Plaintiff **UGX. 227,000,000/= (Two Hundred Twenty Seven Million)** being 50% ofthe value of the suit property, taken as **UGX. 454,000,000/= (Shillings Four Hundred Fifty Four Million)** as per the Valuation Report marked Exhibit D. 6. - 2. The Plaintiff shall retain **the land at Buyala, Budondo in Jinja** and is ordered to pay to the Defendant 50% of its value. The value of the land shall be determined by the Chief Government Valuer at the joint cost of both Parties.

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- 3. The payments hereby ordered under 1 & 2 above, shall be paid by either party to the other within Six (6) months from the date of this judgment. If payment is not made to the other party within the six months specified then I Order that; - a) The Party in possession of such property shall vacate the property to pave way for the sale thereof, whereupon the property shall be sold and the /O proceeds shared between both parties in the terms of this judgment. - b) The payments ordered to be made shall carry interest at the court rate with effect from 1st June 2016 until payment is made in full. - his or her own costs of this suit. 4. Considering the circumstances of this case, and that the Parties share children, for the sake of harmony and cooperation between the parties, each Party shall bear

P. BASAZA WASSWA

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1/12/2015

**\*** *s^o* JUDGE **•J**