Kaheeru v Kabazarwe (Civil Appeal 30 of 2024) [2024] UGHC 980 (18 October 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KIBOGA CIVIL APPEAL NO.0030 0F 2024 (FORMERLY MUBENDE CIVIL APPEAL NO. 028 OF 2022) (ARISING FROM CIVIL SUIT NO.010 OF 2019) KAHEERU JOSEPH:::::::::::::::::::::::::::::::::::: **VERSUS**

KABAZARWE FRIDAH::::::::::::::::::::::::::::::::::::

# **BEFORE: HON. MR JUSTICE KAREMANI JAMSON. K**

## **JUDGMENT**

## Background.

Kaheru Joseph (hereinafter referred to as the appellant) was the defendant in the Chief Magistrate's Court of Kiboga at Kiboga while Kabazarwe Fridah (hereinafter referred to as the respondent) was the plaintiff.

## Respondent's case at trial.

The respondent's cause of action against the appellant in the lower court was for a declaration that the suit land belongs to the respondent, a declaration that the appellant was a trespasser, an eviction order and an order for vacant possession, general damages and costs of the suit.

Jan man

## Appellant's case at trial.

The appellant denied trespass. He contended that the suit land was matrimonial property and comprising of family land as well. That the suit land was wrongly sold to the respondent without his consent. He prayed that the suit be dismissed with costs.

#### **Decision of the trial court.**

The trial court found that the suit land belonged to the respondent, declared the appellant a trespasser thereon and issued an order for vacant possession and eviction of the appellant from the suit land.

The appellant being dissatisfied with the findings of the trial court appealed to this court on the following grounds:

- 1. The learned trial magistrate erred in law and fact when he held that the suit house/property is not the appellant's matrimonial home; - 2. The learned trial magistrate erred in law and fact when he held that the suit house/property is not the appellant's family land; - 3. The learned trial magistrate erred in fact and in law when he held that Kayitesi Joy was legally right to sell the suit property without the consent of the appellant; - 4. The learned trial magistrate erred in law and fact when he held that the respondent is the rightful owner of the suit house / property and she legally purchased the same; - 5. The learned trial magistrate erred in law and fact when he totally failed to evaluate the evidence on record and thereby came to a wrong conclusion.

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He prayed that the appeal be allowed, judgment and the orders of the trial magistrate be set aside, the respondent be ordered to pay costs of the appeal and the lower court and any other reliefs the court deems fit and proper.

#### Representation.

The appellant was represented by Ms. Omvia Caroline of $M/S$ TIAM Advocates (formerly Tumusiime, Irumba and Co. Advocates).

The respondent was represented by Mr. Kiyingi Emmanuel of $M/S$ Lawtons Advocates.

#### **First Appellate court's duty.**

This is a first appellate court in this matter. The duty of the first appellate court was clearly elucidated in the case of **Kifamunte Henry V Uganda SCCA No.1 of** 1997 and the case of Father Narsensio Begumisa & 3 Ors V Eric Tiberaga SCCA No.170 of 2000 [2004] KALR 236 where it was held that:

"This being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion"

The appellate court has to always bear in mind the fact that it did not have the opportunity of hearing and seeing the witnesses testifying to test their demeanour.

### Consideration of the grounds of appeal.

I find that grounds 1, 2 and 3 can be resolved together.

- 1. The learned trial magistrate erred in law and fact when he held that the suit house/property is not the appellant's matrimonial home; - 2. The learned trial magistrate erred in law and fact when he held that the suit house/property is not the appellant's family land;

Man wan

3. The learned trial magistrate erred in fact and in law when he held that Kayitesi Joy was legally right to sell the suit property without the consent of the appellant.

#### **Submissions**

Learned counsel for the appellant submitted that the learned trial magistrate based on the fact that the suit land was solely in the name of Kayitesi Joy and that the appellant used to work far from home to determine whether the land was matrimonial property. Counsel cited Section 2 of the Mortgage Act on the definition of matrimonial property. Counsel further stated that the trial magistrate ignored the evidence of DW1, DW2 and DW3 when they stated that as a family, it had been agreed that the suit land be bought in the name of the wife Kayitesi Joy since the appellant had a grudge with the then vendor. That the money used to purchase the suit land was got from the sale of the appellant's two cows. He relied on the case of Ambayo Joseph Waigo V Aserua Jackline CA No. 0100 of 2015 on the proposition that the property being written in the sole names of one party did not by itself disqualify the contested property from being treated in the same *manner as matrimonial property which the parties acquired after marriage.* That on the other hand, the trial magistrate ignored the inconsistencies in the evidence of PW1 Kayitesi Joy on how she obtained the money to purchase the suit land.

The learned counsel for the respondent submitted that the suit land was not matrimonial property and neither was it family land. That PW1 had a right to dispose it off being her solely owned property. Further that the right to own property in individual names cannot be taken away as was held in the case of Julius Rwabinumi V Hope Bahimbisomwe SCCA No. 10 Of 2009.

Analysis.

and relain

Section 1 of the Mortgage Act cap 239 (formerly S.2) defines a matrimonial home to mean a building or part of a building in which a husband or wife, as the case may be, wives and their children, if any ordinarily reside together.

I must state that this definition is for purposes of mortgaging the property.

However, I find the same definition applicable to any other matrimonial home and I adopt it.

Case law has had a wide interpretation of what amounts to a matrimonial home or property.

Lady Justice Esther Kisakye in Julius Rwabinumi V Hope Bahimbisomwe (supra) cited with approval the case of John Tom Kintu Muwanga V Myllious Gafabusa Kintu; High Court Divorce Appeal No. 135 of 1997, (Unreported) in which Bbosa I observed that;

"matrimonial property is understood differently by different people. There is always property which the couple choose 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 should in my view be considered differently. The property to which each spouse should be entitled is that property which parties choose to call home *and which they jointly contribute to."*

From the above authorities, it follows therefore, that the test is on whether the parties choose to call the property their home and whether they jointly contributed to the acquisition and development of the same.

James Man

I would also add that there should be evidence of residing thereon whether continuously or gradually for it to be called a home and for the land to qualify to be family land they should be deriving sustainability from the same.

In this case, the trial magistrate found that the suit land and the home were not matrimonial property because the land was purchased by and in the name of the appellant's wife (PW1) only. That throughout their marriage, the appellant never contributed to the building of any of the houses. That the wife resided thereon with the children and that the appellant never provided for the family.

From the evidence of PW1, it was stated that she purchased the suit land in 2007. That by this time, her and the appellant were residing at the appellant's employer's farm a one Moses Mukungu where they were taking care of cows. That indeed, the appellant only witnessed the sale agreement (PE1). That nothing was done on that land by the appellant and his wife PW1. That it was only until 2008 when the appellant was imprisoned, and PW1 was chased away from the farm of their employer that she decided to go and settle on the suit land with the children.

The trial magistrate believed the evidence that even when the appellant came out of prison, he did not settle on the land in issue but came to check of them occasionally. This evidence was not disputed by the appellant.

From the above, it is clear that the appellant and PW1 did not choose to reside on the suit land as their home and the appellant never settled on the property. I equally believe that evidence.

The next issue is whether the appellant contributed or provided money for the purchase of the land in issue. The law is to the effect that contribution need not be direct/monetary but it can also be indirect/ non-monetary. In the case of **Kivuitu** V Kivuiti [1990-1994] EA 270, the court held that;

$\left| \frac{u}{u} \right|$ "the wife had indirectly contributed towards payments for household expenses, preparation of food, purchase of children's clothing, organising the children for school and generally enhanced the welfare of the family which also amounted to a substantial individual contribution to the family income *and assets which entitled her to an equal share in the couple's joint property."*

In this case, it was the evidence of PW1 that the appellant despite coming out of prison and finding that she had settled on the suit land with the children, he decided to leave for work in a faraway place in Mbarara and never contributed to the wellbeing of the children and the family. PW1 further stated that she first resided in a hut that was built by the residents when she came on the land. That she later built a mud and wattle house which was later destroyed by the storm in 2014. That the residents helped her put up a small structure using the iron sheets from the previously destroyed house where she stayed for almost a year. That in 2015 she decided to construct another house that is currently on the suit land. That all this was done without the participation of the appellant. No evidence was adduced by the appellant to show his contribution to qualify him as having a share in the suit land/house as his matrimonial property. Even when asked which schools his children went to or what class they stopped in, he did not know. It was the evidence of PW1 that she constantly requested the appellant to build a home for the family on the land they owned in Bikko but he did not.

Basing on the above, it was clear that the suit land did not constitute a matrimonial property or home of the appellant and the trial magistrate was right in finding so. On the issue of the suit land, being family land, Section 39 (4) of the Land Act

defines family land to mean land;

(a) on which is situated the ordinary residence of a family;

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- (b) in which is situate the ordinary residence of the family and from which the family derives sustenance; - (c) which the family freely and voluntarily agrees shall be treated to qualify under paragraph $(a)$ or $(b)$ ; or - (d) which is treated as family land according to the norms, culture, customs, traditions or religion of the family.

Section 40 of the Land Act restricts the transfer of family land except with the consent of the spouse.

Throughout trial, PW1 made it clear that despite residing on the suit land with her children for 8 years, she did not intend it to be family land with the appellant. That most of the time, the appellant was never available and she maintained the family as a single parent with the help of residents who often helped her in putting up structures for the home. Counsel for the respondent further contended that PW1 brought evidence to prove that she often obtained mortgages from the bank using the suit land as security without the respondent's consent. This position was not disputed by the appellant at trial. This implies that the acts of PW1 of obtaining a mortgage without the consent of the appellant would have been contrary to section 40 of the Land Act (formerly S.39) had it been family land. All this evidence was sufficient to prove that the suit land was not family land. PW1 Kayitesi did not require the consent of the appellant to dispose of her property.

Grounds 1, 2 and 3 accordingly fail.

Jaw

### Ground 4.

The learned trial magistrate erred in law and fact when he held that the respondent is the rightful owner of the suit house /property and that she legally purchased the same.

Counsel for the appellant submitted that the respondent did not legally acquire the suit land since the whole transaction is tainted with illegalities and fraud. That he cannot hide under the doctrine of bonafide purchaser. That the respondent is a family member of the appellant and staying in the same village therefore she bought the suit land well knowing about the claims thereon. He cited the case of Sir John Bageire V Ausi Matovu CACA No. 07 of 1996 on the position that *land* is not vegetables that are bought from unknown sellers. Land is very valuable property and buyers are expected to make thorough investigations not only about the land but also about the seller before the purchase.

Counsel for the respondent on the other hand submitted that the respondent proved that she was the lawful owner of the suit land having proved that she bought the suit land from a one Rudasingwa Twaha on $15/12/2019$ who testified as PW2 and confirmed the sale.

Further that the said Rudasingwa Twaha gave the respondent a copy of the agreement (PE2) from which he had purchased the suit land from PW1 Kayitesi Joy. Counsel cited **Section 10 of the Contracts Act** on the contents of a valid contract.

### Analysis.

According to the case of Lwanga V The Registrar of Titles Misc. Cause No.74 of 1997, an owner of land was defined as a person who claims or possesses registerable interests in land whether the interests are equitable or legal.

I wan

It is trite law that for one to be able to pass on title, they must have good title themselves except where one is a bona fide purchaser for value without notice.

The principle of *nemo dat quod non habet* is to the effect that no one can pass what he possesses not. In other words, a transferor cannot give better title than what he possesses.

This is incorporated in Section 29 of the Sale of Goods and Supply of Services Act which provided that "Subject to this Act, where goods are sold by a person who is not the owner of the goods and who does not sell them under the authority or with the consent of the owner, the buyer acquires no better title to the goods than the seller had..... $"$

In the instant case, the respondent purchased the suit land from a one Twaha (PW2) which Twaha had purchased the same from Kayitesi (PW1). The respondent presented Exh. P.3 which is her purchase agreement with PW2 of the suit land. PW2 confirmed that he freely sold to the respondent the suit land. This evidence was corroborated by the evidence of PW6 Lubinga Joseph the LC1 chairperson of Bikko village where the suit land is situated.

He confirmed that the respondent had bought the suit land from PW2 who had bought it from PW1. The trial magistrate rightly found that the suit land was not matrimonial property nor family land, a lawful title was passed on from PW1 to PW2 and subsequently to the respondent. It follows therefore that the respondent lawfully owns the suit land as held by the trial magistrate.

Ground 4 fails as well.

## Ground 5.

# The learned trial magistrate erred in law and fact when he totally failed to evaluate the evidence on record and thereby came to a wrong conclusion.

The learned counsel for the appellant submitted that the trial magistrate relied on the fact that the appellant was rarely home to hold that the suit land was not a family land. That there is no any other evidence that the appellant had any other home. That the trial magistrate failed to evaluate the evidence available.

The learned counsel for the respondent submitted that the trial magistrate evaluated the evidence and came to the right position. I have looked at the evidence which was adduced and the judgment of the trial magistrate and it is my finding that the trial magistrate properly evaluated the evidence availed and came to the correct conclusion.

## Ground 5 fails

The appellant has failed to prove all the grounds of the appeal raised, this appeal fails and is dismissed with costs for the respondent in this court and the court below.

I so order.

18.10.2024

Mau

KAREMANI JAMSON. K JUDGE