Lubega v Nyanzi and Others (Miscellaneous Cause No.86 of 2024) [2025] UGHC 167 (5 March 2025)

Full Case Text

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

## **MISCELLANEOUS CAUSE NO.86 OF 2024**

LUBEGA HUSSEIN::::::::::::::::::::::::::::::::::: **VERSUS**

1. SAYAMA NABIYIKI

2. NAYIGA JULIANAH

3. LUBEGA HUSSEIN

4. LUBEGA IBRAHIM

5. ABUL MUTWALIBU ::::::::::::::::::::::::::::::::::::

## RULING.

## BEFORE: HON. LADY JUSTICE NABAKOOZA FLAVIA. K

This application was brought under Section 98 of the Civil Procedure Act Cap 17, Section 14 and 33 of the Judicature Act 13, Sections 38 and 39 of the Land Act Cap 227, as amended and Order 51 rule and 2 of the Civil Procedure Rules, seeking the following reliefs; -

- a. A declaration that the Applicant's Kibanja and the house thereon situate at Ndejja Kanyanya, Makindye Ssabagabo Municipality, Wakiso District, is not a family property and not affected by Sections 38 and 39 of the Land Act Cap 227 as amended. - b. A declaration that the Applicant doesn't need the consent of the 1st, 2nd, 3rd, 4th and 5th Respondents to execute any transaction in respect of his Kibanja and the house thereon, situate at Ndejje Kanyanya, Makindye Ssabagabo Municipality, Wakiso District. - c. An order that the Respondents pay to the Applicant punitive and exemplary damages. - d. The Respondents pay the costs of the application.

The grounds of this application are supported by the affidavit of Lubega Hussein, and a supplementary affidavit in support deposed by Namazzi Harriet. They briefly aver, that the Applicant and the 1st Respondent are not legally married but biological parents of 2nd, 3rd, 4th and 5th Respondents. That the Applicant owns a Kibanja and a house situate at Ndejje Kanyanya, Makindye Ssabagabo Municipality Wakiso District (hereinafter referred to as the 'suit property'). That the same is not matrimonial property or family property for which the 1st Respondent is entitled.

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That the Applicant and the 1st Respondent separated in 2007, and that the 1st Respondent has since given birth to a child by the names of Mirembe Aminah aged 14. That in the course of their cohabitation with the 1st Respondent, they were blessed with 5 children, namely; Nayiga Juiliya aged 35 years old, Lubega Hussein aged 32 years old, Nalubega Faridah aged 27 years; Lubega Ibrahim aged 25 years; and Abdul Mutwalibu aged 19 years old.

The Applicant deposed further that he resolved to sale the suit property but was stopped by the Respondents who claimed that the sale needed their consent since it is a family property, whereas not. That the 1st Respondent at one time sold the first portion of the land after consent by the Applicant to get money as compensation for the time she had spent with the Applicant, and that she cannot claim the remaining portion. That when the Applicant refused to jointly sale the suit property, the Respondents resorted to violence by beating him, throwing him out of the house and strangling him. That the Respondents have also resorted to using police and the RDC to compel the Applicant to give them a share of his property or part of the proceeds from the sale of the subject property.

The Applicant stated further that, all his children are adults with their own homes and children; and cannot leave their homes to give orders on how he should deal with the suit property. That due to the Respondents' refusal, the Applicant has been denied an opportunity to enjoy his right to property and is now incurring costs of hiring a lawyer to handle the instant application.

In the supplementary affidavit, the deponent averred that she has been a neighbor to the Applicant since 1994 and she signed on the purchase agreement for the suit property where a consideration of Ugx 300,000/- although she cannot recall the measurements. That the Applicant bought the suit property from the late Kiyaga Samwiri (a grandfather to her husband) and constructed a house thereon. That upon completing his house, the Applicant and the 1st Respondent moved in with their children. Further, that the Applicant revealed to her that he sometimes sleeps in the car for fear that the Respondents may kill him. That part of the Applicant's Kibanja was sold and is occupied by different people. That sometime back, the 1st Respondent created a scene, became violent and left the Applicant with young children. That the 1st Respondent then came back and forcefully entered the house, caused chaos by shouting and quarrelling stating that the house and the kibanja are family property of which she had rights to stay on. That the Applicant then reported

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the matter at police, LC1 office, and town clerk who advised the 1st Respondent to leave the Applicant's home, which she did. Lastly, that she received information that the Applicant wished to sale his house but his two sons beat him up.

On record there is an affidavit of service deposed to by Mr. Kibumba Harvey 65 Jonathan and dated 9th July, 2024, showing that the Respondents were served with this application. However, none of them filed their replies.

It is trite law that where certain facts are sworn to in an affidavit and they are not rebutted, they are presumed to have been accepted as being true (See Samwiri

Massa versus Rose Achen [1978] HCB 297; Makerere University Vs St. Mark Education Institute Ltd & Ors (1994) KALR 26). In this case also, I find that the facts stated in the Applicant's affidavits are accepted as being true.

Nevertheless, as stated in Tororo District Administration vs Andalalapo Ltd (1997) IV KALR 126, this court will go ahead and subject the said fact to a test of 75 whether they cogency and of probative value.

Representation; the Applicant was represented by Counsel Mpagi Sunday of M/s Mpagi Sunday & Co. Advocates who filed written submission. Counsel raised the following issues:

- Whether the Applicant's kibanja and the house thereon situate at Ndejje $\dot{i}$ . Kanyanya, Makindye Ssabagabo Municipality, Wakiso District, is family Land envisaged under Section 38 and 39 of the Land Act? - Whether the Applicant needs the Respondent's consent to execute any $\dddot{\text{ii}}$ . transaction in respect of his Kibanja and the house thereon, situate at Ndejje Kanyanya, Makindye Ssabagabo Municipality, Wakiso District? - $\overset{\ldots}{\text{iii}}.$ What remedies are available to the parties?

I note that the Sections quoted in issue one were revised and are now stated as Sections 39 and 40, respectively, under the revised Land Act Cap.236, without any 90 changes in the provisions. Therefore, I shall adopt the revised Land Act Cap.236 in determining the issues at hand.

Further, I also note that issue one and two are interrelated, on ground that a finding on the provisions of Section 39 and 40 of the said Act in respect to the suit property will dispose of the second issue. For that reason, the two issues shall be answered concurrently.

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100 Resolution of Issue One and Two: Issue No.1: Whether the Applicant's kibanja and the house thereon situate at Ndejje Kanyanya, Makindye Ssabagabo Municipality, Wakiso District, is family Land envisaged under Section 39 and 40 of the Land Act? Issue No.2: Whether the Applicant needs the Respondent's consent to execute any transaction in respect of his Kibanja and the house thereon, situate at Ndejje 105 Kanyanya, Makindye Ssabagabo Municipality, Wakiso District? The Applicant averred that when he refused to jointly sale the suit property, the Respondents resorted to violence by throwing him out of the house on the suit land. In the supplementary affidavit, the deponent averred that the Applicant informed 110 her that he sleeps in the car at times for fear of the Respondents; and that the 1st

The above facts indicate that the Applicant considers the suit property as his 115 exclusive residence, since it is where he "resides with some degree of continuity apart from accidental or temporary absences..." (Section 39(4) of the Land Act Cap.236). Such a residence is considered family land under Section 39(4)(a) of the Land Act Cap.236, which defines such as "land on which is situated the ordinary residence of a family." Therefore, I find that the suit property is family land. 120

the house thereon, claiming that she has a right to stay therein.

Respondent at once left the suit property but later returned and forcefully entered

Section 39(1) of the Land Act Cap.236 confers security of occupancy on family land to only a spouse. Subsection (3) of the same mandates that every spouse has a right to withhold his or her consent to any transaction which may affect his or her security of occupancy on family land; and Section 40(1) of the same Act provides for the transactions to which a spouse must consent to, that is; sale, mortgage, transfer, among others.

In this case, the Applicant clearly averred that he is not married to the 1st Respondent but merely cohabited with her; and that the rest of the Respondents are his adult 130 children. This then implies that none of the Respondents is his spouse.

> As alluded to, the law envisages that consent to transactions on family land is required from only a spouse. Thus, whereas the suit property is family land, the Applicant is not legally required to obtain the Respondents' consent prior to

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transacting on it. Accordingly, issue one is found in the affirmative; and issue two in the negative.

Issue No.3: What remedies are available to the parties?

Having succeed on issue two, the Applicant is hereby granted the following reliefs (1) It is declared that the Applicant does not need any consent from all the respondents to do any transaction on the suit Kibanja and house situated at Ndejje Kanyanya Makindye Ssabagabo Municipality.

(2) The court is unable to grant relief (a), as reproduced in the paragraph No.5 of this ruling, given the finding that the suit land is family land.

(3) With respect relief (c), in the same paragraph; I note that punitive and exemplary damages mean one and the same thing. To that extent, such damages are granted where there is proof that the Respondent's conduct has been calculated to make a profit for himself or herself. These punitive damages are meant to punish the defendant. In this case, there is no proof that the Respondents made any profit from their acts against the Applicant. (see Supreme Court in Esso Standard (U) Ltd Vs. Semu Amanu Opio SCCA NO. 3/93).

Lastly, the Applicant sought for costs; and since he substantially succeeded in his 155 cause against the Respondents. However, since they are family members, I make no orders to costs let each party bear their own costs of this application.

Signed, dated and delivered at Kampala this $\frac{1}{2}$ day of ... Larch.2025.

Nabakooza Havia. K **Tudg**

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