Bugembe v Namutebi (Civil Appeal No. 35 of 2020) [2023] UGHCLD 83 (31 March 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT AT KAMPALA (LAND DIVISION)

# CIVIL APPEAL NO. 0035 OF 2020 (ARISING OUT OF CIVIL SUIT NO. 70 OF 2021, CHIEF MAGISTRATE'S **OF MAKINDYE AT MAKINDYE)**

### BUGEMBE HUSSEIN ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### NAMUTEBI SARAH :::::::::::::::::::::::::::::::::::

### **BEFORE: HON. JUSTICE BERNARD NAMANYA**

### **JUDGMENT**

#### **Introduction:**

1. This Judgment is in respect of an appeal filed against the Judgment of His Worship Gakyalo Mpirwe Allan, Magistrate Grade I (as he then was) sitting at the Chief Magistrate's Court of Makindye at Makindye delivered on the 9th March 2020 in favour of the respondent.

# **Background**

$2.$ In the lower court, the appellant (PW1) averred that he is the lawful owner of a Kibanja interest of land located at Bunamwaya, Kyadondo (hereinafter "the suit property"). The appellant purchased the suit property from Namwandu Sofe Nanteza and Silve Mukasa on the 13th day of October 1991 with the permission of the registered proprietor and subsequently started building a house on the suit property. The contract for the purchase of the suit property is in the names of the

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appellant. The appellant lived on the suit property with his wife, a one Nantongo Shamim and their 8 children since 1994.

- The appellant's wife, Nantongo Shamim left their home in 2003 and the respondent $3.$ was hired as a housemaid to look after the appellant's children. After a while, the appellant entered into a sexual relationship with the respondent and they produced two children namely Ryan Nakkungu aged 9 and Iman Bugembe aged 7. In or about 2013, the appellant and respondent developed a misunderstanding in their relationship. The appellant offered alternative accommodation for the respondent and her children but the respondent refused to vacate the suit property. - $4.$ Aggrieved by the respondent's actions, the appellant sued the respondent in the lower court for trespass on the suit property. The appellant sought the following reliefs interalia: i) a declaration that the appellant is the rightful and lawful owner of the suit Kibanja; ii) a declaration that the respondent is a trespasser on the suit property; iii) an eviction order against the respondent; iv) permanent injunction; and $v$ ) general damages for trespass. - The following issues were framed for determination of the suit in the lower court: $5.$ - i) Whether the defendant made any contribution towards the development of the suit property? - ii) What remedies are available to the parties? - At the trial of the suit in the lower court, Bugembe Hussein (PW1), who is also the 6. appellant, was the only witness and so was the respondent, Namutebi Sarah (DW1).

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- The Trial Court carried out a locus in quo visit to the suit property on the 15th day 7. of January 2020, and both the appellant and the respondent testified, and were cross examined. - The learned Magistrate delivered Judgment on the 9th March 2020 with the 8. following key declarations and orders: - A declaration that the respondent substantially contributed to the i). development of the suit property; - ii). That the respondent is a joint owner of the suit property; and - iii). The suit property be disposed of and the appellant and the respondent share proceeds of the sale equally at 50%. - 9. Dissatisfied with the Judgment of the learned Magistrate, the appellant filed the instant appeal on two grounds: - i). That the learned Trial Magistrate erred in law and fact when he failed to properly evaluate the evidence on record and he arrived at an erroneous decision thereby occasioning a miscarriage of justice. - That the learned Trial Magistrate erred in law and fact when he directed $ii$ ). an equal share of the property without any supporting evidence on record hence arriving at an erroneous decision, thereby occasioning a miscarriage of justice.

### **Representation**

10. At the hearing of the appeal on the $7th$ February 2023, the appellant was represented by Mr. Mwigo Allan James of M/s Wagabaza & Co Advocates and the respondent was unrepresented. The appellant filed written submissions which I have considered.

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# Duty of the first appellate court:

11. The duty of the first appellate court was stated in the case of *Uganda Revenue* Authority v. Rwakasaija Azarious & 2 Others, Court of Appeal Civil Appeal No. 8 of $2007$ as:

> "This being the first appellate court, it is the duty [of court] to reappraise the evidence on record as a whole and come to its own conclusion bearing in mind that it has neither seen nor heard the witnesses and should make due allowance in that regard."

12. I shall keep the above principle in mind while considering and disposing of, this appeal.

# *Consideration and determination of grounds of the appeal:*

13. I shall consider the two grounds of the appeal jointly since they are interrelated.

# Grounds $1$ and $2$ :

- 14. The appellant is dissatisfied with the finding of the Trial Magistrate that the respondent contributed to the building of the suit property. According to the appellant, there was inadequate evidence to support the finding of the learned Trial Magistrate. The appellant further contends that the respondent is not a joint owner of the suit property and is not entitled to a share of 50% as ordered by the learned Trial Magistrate. - 15. Counsel for the appellant sought to rely on section 56 of the Registration of Titles Act (Cap 230) in support of his argument that the respondent is not a joint owner Page 4 of 13

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of the suit property. With respect to counsel for the appellant, section 56 of the RTA does not apply to the issue at hand because the suit property is a Kibanja (customary holding) which is an unregistered interest. Section 56 of the RTA applies to registered land where one can tell the nature of ownership from the certificate of title.

- 16. It is not in dispute that the appellant initially acquired the land on which the suit property sits. The appellant purchased the suit property from Namwandu Sofe Nanteza and Silve Mukasa on the 13th day of October 1991 with the permission of the registered proprietor. This evidence is not contested. What is in contestation is whether the respondent contributed to the construction of the house that sits on the suit property. The respondent claims that she indeed contributed to the building of the house but the appellant disputes this. - 17. To assess the validity of the competing claims and counter claims, I will analyse the evidence on record adduced by the parties before the Trial Magistrate. - 18. In the lower court, the relevant part of the appellant's evidence in chief is as follows:

"That around [...] 1994, I began building a two roomed house on the suit land with my wife Shamim Ntongo [...] That around December 2003, my wife requested to temporarily leave my home and go to nurse her ill mother in Luwero and that I also employ a maid to take care of her young children $[...]$ That $I[...]$ employed a house maid a one Namutebi Sarah [respondent] to take care of my eight children [...] That around or about 2004, I and my wife decided to construct another house since the two roomed house we were residing in at the time had a very weak foundation $[...]$ That I began building the new Page 5 of 13

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house in phases $[...]$ That on or about 2007 I began a relationship with the housemaid [respondent] [...] That during the relationship, $I$ decided to shelter the defendant [respondent] on the suit land together with my eight children while my wife Shamim Ntongo was staying in the Bukuku Degeya village $[...]$ That on or around 2013 my relationship with the [respondent] broke down because she had poured salt in the engine of my personal car UAP 029K [...] That I began a relationship with the [respondent] when she had already sold off the kibanja house at Makerere 11 Zone $D$ [...] and I never saw nor utilised the proceeds in any way from the said house as alleged $[...]$ That the defendant never ever made any financial contributions for the improvements of the suit property."

19. In cross-examination, the appellant testified as follows:

"If I had capacity, I would have 4 wives $[...]$ My first wife was Nantongo Shamim $[...]$ Me and Nantongo we stay in Bukuku Nakaseke because I have a home there. I have 14 children; the other children are from other wives. Now I have one wife but produced from other women who are my wives $[...]$ I met the defendant in 2003. The defendant was my maid at my home $[...]$ After 2007, the defendant became a friend till 2013 [...] Me I never witnessed on the agreement of the defendant when [she] was buying Kibanja in Jokolera."

20. In re-examination, the appellant testified that:

"I have two children with the defendant $[...]$ It's me who bought the land in Jokolera. She never bought land there, she witnessed as my *friend on my purchase agreement.*" Page 6 of 13

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21. In the lower court, the relevant part of the respondent's examination in chief is as follows:

> "[...] I met the plaintiff in 2000 started cohabiting and moved into the plaintiff's two roomed shell house. That the plaintiff and I cohabited and begot two issues to wit; Ryan Nakkungu aged 9 years, Imran Bugembe aged 7 years and during that period, we demolished the two roomed shell house situated on the suit land [...] That the plaintiff and I constructed a new house with 2 bedrooms, 1 sitting room, and 1 dining room following a new plan $[...]$ That I expended proceeds towards the improvement of the property on the land in question $[...]$ That I introduced the plaintiff to the LC1 chairman, the defence secretary of the area who permitted him to collect rent from the 8 rental houses $[...]$ That the proceeds were used to make improvements $[to]$ the property in question and the general welfare of the family $[...]$ That I have single handedly provided for our two issues for the last 4 or so years and I have been doing odd jobs like washing clothes for pay, plaiting hair and cleaning people's compounds to be able to provide for the family $[...]$ That I made substantial contribution to the improvement of the house and the intention was to raise my children and the house was to be their shelter."

22. In cross-examination, the respondent testified that:

"[...] I sold my inherited land from my [grandmother's] estate and improved the suit house $[...]$ I put in 7,000,000 (seven million shillings) $[...]$ I have evidence that I injected money in building the disputed house. I have receipts [to prove that] I bought cement from Viva Hardware Shop. I [also] bought sand for the building [...] I am Page 7 of 13

Derrordlemeny in the house with the children. The plaintiff does not stay in that home, he has land at Jokolera and he stays there. I am suffering the *plaintiff does not look after the children.*"

23. At the locus in quo visit, the respondent testified that:

"We used to buy cement at Hima cement outlet at Kibuye [...] Most of the money for building was from my kibanja of Makerere and the *Mukono rentals*"

- 24. Counsel for the appellant criticized the respondent's evidence for being full of contradictory and inconsistent statements. He faulted the Trial Magistrate for not rejecting the respondent's evidence. - 25. Firstly, counsel for the appellant criticized the respondent for giving inconsistent evidence on how she got money for making improvements to the suit property. I have appraised the evidence on court record. The respondent has been consistent in her evidence that she sold her kibanja in Makerere that she inherited from her grandmother and used the sale proceeds (about 7 million shillings) to contribute to the construction of the suit property. She said so during cross-examination and repeated the same at the locus in quo visit. - 26. Secondly, counsel for the appellant claimed that the respondent's evidence on purchase of cement was contradictory. He submitted that during cross-examination, the respondent claimed to have purchased cement from Viva Hardware Shop while at the locus in quo visit, the respondent stated that she bought cement from Hima cement outlet at Kibuye. With respect to counsel for the appellant, I do not see any contradiction in the evidence given by the respondent. The difference in the two statements is that during cross examination, the respondent mentioned the name of Page 8 of 13

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the hardware shop where she purchased the cement while in the second statement, the name of the shop is not mentioned but the place where the shop is situated (Kibuye) is mentioned.

- 27. Thirdly, counsel for the appellant submitted that the respondent claimed to have contributed to the construction of the house and yet by the time the respondent started living with the appellant, the house had already been built and was complete. Counsel's submission is not supported by the evidence on court record. According to the appellant's own evidence, he started living with the respondent in 2003. In 2004, the appellant and the respondent decided to construct a new house because the old one had a weak foundation. From the appellant's own evidence, it is abundantly clear that the old house was demolished and a new house constructed with the active participation and contribution from the respondent. - 28. Overall, after appraising the evidence on record, it is my finding that the appellant's submission that the respondent's evidence is contradictory and inconsistent is not supported by any evidence whatsoever. Ground 1 of the appeal therefore fails. - 29. Counsel for the appellant criticized the Trial Magistrate for the finding that the appellant and the respondent owned equal shares in the suit property, and argued that there was no supporting evidence for this finding. Counsel argued that there was no evidence of the contribution made by the respondent to the construction of the house on the suit property. I am unable to agree with counsel's argument on this point. As I have held above, adequate evidence was adduced to prove that the respondent contributed financially to the construction of the house. Contrary to the claims that the evidence is contradictory and inconsistent, I am satisfied with evidence adduced by the respondent of the contribution she made to the construction of the house. The respondent's evidence was consistent during Page 9 of 13

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examination in chief, cross-examination, re-examination and evidence at the locus in quo. Consequently, I reject the criticism levelled against the respondent's evidence.

30. Other than the satisfactory evidence adduced by the respondent, the position of the law also favours the respondent. The respondent contributed to the suit property in both monetary and non-monetary terms. I have already appraised the evidence of the respondent's monetary contribution which I am satisfied with, and I need not repeat it. The non-monetary contribution of the respondent was in the form of dayto-day care for the appellant and the children, household chores such as cooking, cleaning, shopping, laundry, and other forms of domestic work. The Court of Appeal of Uganda in the case of *Ambayo v. Aserua (Civil Appeal 100 of 2015)* [2022] UGCA 272 considered non-monetary contribution of a spouse in a family, and held that:

> "There is no doubt that the non-monetary contribution of spouses is valuable and of great economic significance at the family and national or macro level. At the global level, the nonmonetary contribution of spouses is part and parcel of what is termed as the "unpaid care and domestic work'. The expression "unpaid care and domestic work is used to cover all forms of work not compensated by way of wages which women and men carry out on a daily basis. It includes caring for the children, elderly and the sick members of the family, household chores like laundry, grocery shopping, cooking, cleaning, construction and repairs, cultivating food for the family *subsistence, fetching water and firewood* [...]"

31. Although the facts of the case before me are distinguishable from the case of Ambayo to the extent that the appellant and the respondent were not legally married Page 10 of 13

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and were only cohabiting, the legal principles espoused by the case of *Ambayo* are nevertheless relevant in the determination of the issues before me. To this extent, the respondent testified that she is taking care of the children single handedly after the appellant abandoned his parental responsibilities. The respondent further testified that her contribution to the house on the suit property was to ensure that her children have shelter.

- 32. The course of dealing between parties in relation to the suit property is relevant in determining whether the parties own land as tenants in common (see the case of Williams v. Hensman [1861] EWHC Ch J51 70 ER 862, (1861) 1 J & H 546 per Vice-Chancellor Sir W. Page Wood; see also Megarry & Wade: The Law of Real Property, 9th Edition, Stuart Bridge, Elizabeth Cooke and Martin Dixon, Sweet & Maxwell, London, 2019 12-036 to 12-043). In the case of Zachary John Olum v. Bongomin John Odora & 4 others, Civil Application No. 120 of 2015 (High Court of Uganda, Gulu), Justice Stephen Mubiru held that the course of dealing between the applicant and the respondents showed that the parties owned the land as tenants in common rather than as joint tenants, and that the applicant was entitled to a court order severing off his portion of land. See also my earlier decision in the case of Mukuba Charles v. Julius Kiyimba Lubega, Misc. Cause No. 107 of 2022. - 33. In the case before me, the respondent adduced evidence that she sold a Kibanja piece of land inherited from her grandmother and injected the sale proceeds in the suit property. The respondent further testified that she entrusted the appellant to collect rent from 8 rental houses in Mukono. - 34. The course of dealing between the appellant and the respondent is one that leads to the inevitable conclusion that the suit property was owned in equal shares. On the authority of Megarry & Wade (supra); Zachary John Olum (supra); and Mukuba Page 11 of 13

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*Charles (supra)*, it is my finding that the suit property is owned by the appellant and the respondent in equal shares.

35. I agree with the finding of the learned Magistrate that the appellant and the respondent own the suit property in equal shares, and that if the suit property is be sold, the two parties should share the sale proceeds equally at 50%.

## **Conclusion:**

36. In conclusion, I find no merit in this appeal. The appeal is dismissed. The Judgment and Orders of the learned Magistrate Grade 1 delivered on the 9th March 2020 are upheld. Since the respondent did not appear to argue the appeal, I make no order as to costs.

## I SO ORDER.

comen BERNARD NAMANYA **JUDGE** 31st March, 2023

31 March 2023 at 9:17am.

Mr. Mwigo Allan James of M/s Wagabaza & Co. Advocates

Counsel for the appellant

Cheptoek Liz

Court Clerk

## Mr. Mwigo Allan James:

The matter is for Judgment. We are ready to receive the Judgment.

Court:

Judgment delivered in open chambers.

BERNARD NAMANYA **JUDGE** 31st March 2023

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