Lunkuse v Tamale and Another (Civil Suit 480 of 2012) [2023] UGHCLD 369 (31 October 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (LAND DIVISION) CIVIL SUIT NO.480 OF 2012

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RUTH LUNKUSE PLAINTIFF

#### **VERSUS**

## **1. HENRY SSALI TAMALE** 2. POST BANK UGANDA LIMITED -------------- DEFENDANTS

## BEFORE HON. LADY JUSTICE KANYANGE SUSAN **JUDGMENT**

The plaintiff's claim against the defendants jointly is the;

- a. A declaration that the dealings of the defendants jointly and or severally in respect of land comprised in Kyaggwe Block 110 plot 1869 at Seeta without the consent of the plaintiff are illegal, null and void. - b. An order to vacate the encumbrance noted as a mortgage on Kyaggwe Block 110 plot 1869 at Seeta - c. A permanent injunction restraining the defendants or their agents, assignees or legal representatives from any further dealings on the suit land without the consent of the plaintiff

d. Costs of the suit

#### Bockground

The plointiff Ruth Lunkuse is customorily morried to the lsr defendont Henry Ssoli Tomole. Thot they ocquired suit lond comprised in Kyoggwe Block I 10 plot 1869 ot Seeto together but in completing the process of mutotion ond tronsfer the I'i defendont registered it in only his nomes. They built there six oportments ond olso lived there sometime. They derive their sustenonce from there ond it is o fomily lond.

The I't defendont deolt with the suit lond ond obtoined o loon of Shs.90,000,000/= from the 2nd defendont Post Bonk without her consent. Thot the 2nd defendont connived with the I't defendont ond foiled to corryout due diligence os she wos residing on the suit lond ond it wos known to neighbours old Locol Council Authorities. The 2nd defendont hos fore closed ond odvertised the suit lond for sole ond threotens to evict the plointiff ond fomily.

The I't defendont overred thot though the suit property wos jointly ocquired, he wos the registered proprietor ond hod outhority to deol with the some. He foiled to poy the loon becouse of business losses ond the 2nd defendont refused to restructure his loon to enoble him to poy.

The 2nd defendont Post Bonk overred thot it corried out due diligence ond the l,t defendont mortgoged the suit property ofter getting spousol consent from his wife Nolunjogi Solimo ond thus it is o bonofide mortgogee of the suit property


### Representolion

Lin Advocoles represented the plointiff, Stonley Omony represented the 2nd defendont. The I't defendont ond plointiff entered into o consent judgment in the motter.

#### lssues

- l. Whether the suit lond is o fomily property - 2. Whether spousol consent wos obtoined prior to mortgoging the suit lond if so. whether it wos obtoined from the right person - 3. Whether the deoling of the defendonts jointly ond or severolly in respect of the suit lond ore illegol, null ond void - 4. Whether the plointiff is entitled to the remedies sought

### Resolution

# l. Whether the suil lond is o fomily lond

Fomily lond under S.3B A (4) (S.39) of the Lond Act is defined os lond.

- o. On which is situote the ordinory residence of o fomily ond from which the fomily derives sustenonce - b. On which is situote the ordinory residence of the fomily ond from which the fomily derives sustenonce - c. On which the fomily freely ond voluntorily ogrees sholl be treoted to quolify under porogroph (o) or b or


d. Which is treoted os o fomily lond occording to the norms, culture, customs, troditions or religion of lhe fomily.

# See olso cose of Tumweboze versus Mpirirwe & Anor HCT 05-CV-CA 039 of 2010 (2013 UG HCL49

counsel for the 2no defendont roised o sub-issue - Whether the ploinliff is o legol spouse of the Ist defendonf.

Counsel for the 2no defendont submitted thot there is doubt to the odmissibility of the consent letter written in vernoculor ond wonder how this wos so if fother knew how to reod. Fudher to this thot the soid consent letier from PWI's fother holds no probote volue os for os proving o morrioge os well os the octuol celebrotion of the customory morrioge. He referred to the coses of Kompolo Dislrict Lond Boqrd & Anor versus Venonsio Bobweyoko Civil Appeol No.2 of 2007 ond Boryomweebo Jomes versus Kobokonjo Abwoli & 6 olhers CS No.20 of 2017.

Thot the plointiff is not o spouse to the I't defendont.

ln reply counsel for the plointiff submitted thot the fother's letter wos o first requirement ond the l'1 defendont with other people went to the plointiff's porents which is the octuol function ond fother wos given o bicycle os 'Omutwolo' ond it completed the morrioge ceremony under the Kigondo customs. Thot thus the plointiff ond the I'i defendont were truly morried.

PWl - Ruth lunkuse testified thot the I't defendont Tomole Ssoli come for introduction of her porent's home Mubondo Kosowo Mukono District in 1995 on I llh December with 5 people. She tendered on o letter (PlA) from the fother to her husbond consenting to the morrioge ond letter from her ount to the fother

h, w

thot Ssoli wonts to be introduced PlB. Thot the husbond brought vorious gifts ond olso gove her fother o bicycle os o 'Omutwoto.' The plointiff ottempted to tender in o certificote of morrioge registered on 02-05-2014 but it wos ejected by court os it wos got 19 yeors loter ond it wos procured for the purpose of lhe cose.

S.l (b) of the customory morrioge (Registrotion Act cop.248 Lows of Ugondo) defines o Customory Morrioge os follows "A morrioge celebroted occording to the rites of on Africon community ond one of the porties to which is o member of thot community on ony morrioge celebroted under port 1 1 I of this Act".

ln the cose of Sleven Bujoro versus Polly T. Bujoro CivilAppeolSl ot 2002 (2001 - 2005) HCB Vol. 3 o customory morrioge is complete if ;

- o. Customory proctices of the community/tribe hove been complied with or performed or if - b. lt does not offend lhe provisions of S.11 of cop.248 Lows of Ugondo.

These ore:-

- o. The femole hos not ottoined the oge of l6 yeors (now 1B yeors). - b. The mole porty hos not ottoined the oge of 1B yeors. - c. One of the porties is of unsound mind.

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- d. The porlies ore within the prohibited degrees of worship or the monioge is prohibited by the custom of one of the porties to the morrioge. - e. One of the porties hove previously controcted <sup>o</sup> monogomous morrioge which is still substiluting.

Under S. 6(l ) of the cuslomory morrioge registrolion Act, porties sholl nol loler thon six months, register detoils of their morrioge ond under S. Z [1 ) o cuslomory morrioge certificote sholl be issued. While under S.8 o customory morrioge moy be registered ofter the expirotion of 5 months.

ln the Kigondo custom, o letter is first got from on ounty written to the fother stoting the pending visit by the would be husbond. This wos done in the instont cose (PEX 1 B) ond plointiff hos proved thot folher wrote down consenting to the morrioge in PEXlA. Plointiff hos olso proved thot bride price of o bicycle wos poid ond gifts exchonged.

Ithereby find thot plointiff hos proved lhere wos o customorily morrioge between her ond the l'1 defendont.

### On whether the lond is o fomily lond

As I hove discussed before, fomily lond is defined os lond on which o person ordinorily resides with his or her spouse ond from which they derive their suslenonce. See cose of Lomulote Ssonu Nokonwogi versus Hoji Asumoni Jjumbo & 2 olhers - Mosoko High Court Civil Suil No.l8 of 2005.

r6 ln instont cose the plointiff olleged thot she wos stoying in one of the houses os her motrimoniol home ond derives sustenonce from the other units by collecting rent, poying schoolfees ond feeding, while the defendonts witness Brendoh lrene testified lhot she went to the property in issue ond found there Solimo Nolunjogi who wos morried to ihe ln defendont, ond there were rentol units.

This evidence thus proves it wos fomily lond though there is o dispute os to which wife wos residing there, the plointiff Ruth Lunkuse or Solimo ,ond who gove the consent.

lssue 2 - Whether the spousol consent wos obloined prior to the morlgoging of the suit lond.

S.39 (l) of the Lond Act provides thot no sell exchonge tronsfer pledge mortgoge or leose ony lond

(i) ln the cose of lond on which the person ordinorily resides with his or her spouse ond from which they derive their susienonce, except with the prior written consent of the spouse.

S. 5 of the Mortgoge Acl olso provides thot notwithstonding S.39 of the Lond Act, o morigoge of o motrimoniol home is volid if, o document used to opply for the mortgoge is signed by or ossented to by the mortgoger ond his or her spouse or spouses of the mortgogor living In thol motrimoniol home.

The 2nd defendont contends he obtoined spousol consent from Solimo Nolunjogi while the plointiff olleges she wos the wife residing in thoi home ond her spousol consent wos not obtoined.

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The I't defendont who introduced Solimo Nolunjogi os his wife ot the obtoining of the mortgoge consent in this suit with plointiff ond stoted thot he did not obtoin spousol consent.

Counsel for the 2no defendont submitted thot plointiff did not provide evidence to show she contributed to the property ond she foiled to odduce evidence thot she ordinorily resides there. She olso did not furnish proof thot she wos deriving sustenonce from there nor did she coll ony of the tenonls to testify who collects rent.

Thot cloims of contribution ore on ofterthought ond there is collusion between her ond the l,t defendont. He relied on cose of Olowo & 3 olhers versus Olowo & 2 others Civil Suit No.76 of 2012.

While counsel for the plointiff submitted thot the purported consent by Solimo does not indicote type of morrioge olleged to hove been controcted ond the illegol witnessing by Bukenyo Solomon wos illegol, null ond void since witness signed in obsence of witness ond it wos got from o wrong person.

Thot the plointiff hos been in full physicol ond octuol possession she relied on cose of Alice Okiror & Anor versus Globol Copilol Sove & Anor CivilSuit No.l49 of 20]0.

It wos the duty of the mortgoger in this cose the I't defendont to disclose truthfully his moritol stotus ond the correct spouse living in the home ond it wos olso the duty of the mortgogee in this cose the 2nd defendont to toke reosonoble steps to oscertoin whether the 2nd defendont wos morried to the spouse who gove the spousol consent.

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The plointiff testified thot she is the one residing in one of the units os her motrimoniol home though sometimes the husbond does not live with her.

Thot in 1996 they bought the suit lond by on ogreement from their Choirmon the lote Bukonjo Solomon. Thot she sold port of her mother's kibonjo ond built rentols ond they were living in one. Thot she signed on the ogreement. Thot she collects rent from the houses ond uses it for school fees.

Further to this thot she come to heor of the mortgoge when one of her tenonts showed her o newspaper where the house wos odvertised for sole. She denied signing ony of the mortgoge documents ond thot she did not know Nolunjogi Solimo to be o wife of her husbond. She soid Solimo does not stoy on those houses. She did not know whether the lond hod o title ond olso did not know if money borrowed from bonk wos used to construct the houses. She olso did not know how mony wives her husbond hos.

While DWI Brendo lrene Nontobo o Credit Administrotion Officer in Post Bonk Ltd testified thot she interocted wilh the l't defendont in respect of o different mortgoge ond they hod spousol consent. Thot in oll deolings Solimo Nolunjogiconsented os the spouse ond she interfoced with her. Thot the Choirperson of the oreo Bukonjo Solomon verified this. Thol lhey were living of one of the units on the suit property ond there were photos of Solimo in the house ond mortgoge sholl be volid notwilhstondlng the prohibition of S.39 (l ) of the Lond Act os omended if there wos complionce with the provisions of section 5 of the Mortgoge Act.

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ln the cose of Motly Ntore versus Equity Bonk (U) Ltd Misc. Couse No. l6 of 2015 (2015) UG Comm. 200 (25th September 2015) Justice Modromo held thot the duty to oct in good foith connot be over emphosized. lt is the linchpin thot ossures thot the tronsoction complies with the low ond ovoids breoch of S.39 (l) of the lond. lt ensures thot fomily lond or motrimoniol property con be mortgoged without controversy. lt further protects o finonciol institution such os the 2no defendont in this suit from froud perpetuoted by spouses.

ln instont ccse, I find the I't defendont presented Solimo Nolunjogi os his spouse ond spousol consenl wos obtoined. The 2no defendont contended they corried out due diligence ond found she wos the one living in the house os her photos were there ond the LC.l Choirmon confirmed. This LC. Choirmon is the one the plointiff cloimed to hove bought from the Iond. The 2nd defendont thus complied with oll the stotutory provisions ond did not commit on offence. lf there wos ony offence committed il wos by the first defendont.

The plointiff Ruth Lunkuse wos not registered on the title which is in the nomes of the I'i defendont ond neither wos there o coveot on the suit lond to enoble someone to know she existed os o spouse. The 2no defendonts witness found photos of Solimo in the house ond she is the one they interocted with in previous mortgoges os the spouse.

The evidence I hove on record is for plointiff olone ond one defence witness.

Sl03 of the Evidence Acl provides thot the burden of proof os to ony porticulor focts lies on the person who wishes the court to


believe its existence unless it is provided thot proof of thot foct sholl lie on o porticulor person.

S.l01 of the Evidence Acl olso provides thot whoever desires ony court to give Judgment os to ony legol right or liobility depending on the existence of focts which he or she osserts, he or she must prove those focts exist.

The plointiff in this cose did not bring ony other witness to buttress her cose thot indeed she living in thot house. No neighbours nor relotives nor tenonts were brought fo court. Though court con depend on evidence of one witness, the evidence of the plointiff in light of the 2nd defendonls evidence leoves doubt in my mind os to whether she ond noi Solimo wos the one residing in thot house. She odmits her husbond does not live there oll the time, meoning he hos other wives. The onus loy on her to prove her cose on o bolonce of probobilitywhich she hos foiled ond I'm more inclined to believe the 2no defendont.

I thus find thot spousol Consent wos obtoined from Solimo Nolujongi prior to the mortgoging of ihe suit lond.

## 3)Whether the deolings of lhe defendonls jointly ond severolly in respect of the suil lond ore illegol, null ond void.

I hove found in issue 2 thot spousol consent wos obtoined from Solimo Nolujongi thus the deolings between the defendonts' were lowful ond not null ond void. I hove olso looked of the Judgment in Civil Suit no 729 of 2016 between the defendonts ond it wos for recovery of the debt os money hod ond received under the loon ogreement. lt wos stoted in thot cose, thot this suit is ongoing. I thus do not ogree with plointiff's counsel thot the mortgoge itself wos overtoken by events.

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Therefore, I find that the dealings between the defendants were lawful.

In conclusion I find that the plaintiff has not proved her case. It is hereby dismissed with costs to the 2<sup>nd</sup> defendant.

DATED AT KAMPALA THIS -----3-150<br>DATED AT KAMPALA THIS -----3-150<br>DAY --October -- 2023

**KANYANGE SUSAN** AG JUDGE LAND DIVISION.

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