Matovu v Oyeru (HCCS No. 681/1998) [2008] UGCA 26 (6 June 2008)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA

### ctvtl APPEAL i..i5. 15 0F 2CC6

#### FLORENCE NAMULI MATOVU ::::::::::::::::: APPELLAN"I VERSUS lr)

HELLEN OTERU :::::::: RESPONDENT

(Appeal from the Judgement of His Lordship H<:n. Justice Richard Oscar Okumu Wengi given on the 29th June 2005 in HCCS No. 681/1998)

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#### JUDGEMENT OF HAN. JUSTICE A. E,N,MPAGI-BAHIGEIN E JA

This appeal is against the judgement and orders of the High Court (Okumu WengiJ), dated 3'l't August 2005, at Kampala. The learned trial judge agreeing with the respondent's case made the following orders:

,r1 The plaintiff purchased the property in this suit for herself as a woman and owns it in its

entirety to the exclusion of her Advocate and any person claiming under him.

- The defendant never acquired part of the suit property rightfully and or for value or love gift $2.$ from the owner. - A declaration that the Plaintiff is at liberty to have the Certificate of Title to be corrected $3.$ and or rectified accordingly. - The Defendant's counterclaim is dismissed. $\mathbf{4}$ - Costs of the Suit in the counterclaim to be $5.$ paid by the Defendant."

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### **Facts**

The parties by their conferencing summary filed on 20-06-07 agreed that the brief facts shall remain as stated by either party in their respective conferencing memorandum. That being the position, the respondent's story was that sometime in 1979, she took up property comprised in Leasehold Register Volume 422 Folio 23 Plot 29 Borup Avenue, Kampala, which was partly owned by one Noah Doka, a relative of hers. The property had been mortgaged to M/s $25$ Grindlays Bank International (U) Ltd and was up for sale by the mortgagee.

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l0 The respondent thus decided to purchase the same and on 13th September '1979, instructed, in writing M/S ttlugen'va & Jvlatovu Advocates but specifically lvlr. Matovu (RlP) to handle the matter on her behalf, for a fee. After some delays, the respondent purchased the property by way of raising an overdraft with her Bankers, M/S Bank of Baroda (U) Ltd' However, on transfer, fearing the victimization, at that time, on account of being a West Niler, iiei' lawyer advrsed that they needed another person to nominally co-own the suit property, to give the impression that it was owned by two different people.

tt/r. lvlatovu, without the knowledge or approval of the respondent, nominated the appellant and caused her to be registered as a joint owner of the suit property. As it turned out after his death in 1990, the nominee was his legally wedded wife, the aPPellant. t5

ln 1991 the respondent started claiming the entire suit property as the owner thereof and repeated her attempts in 1998. She filed HCCS NO.681 of 1998 seeking inter alia a declaration that the property is owneo by her absolutely and 20

that the appellant had no proprietary right at all in the property. The High Court agreed with her.

However, according to the appellant, the facts are that she and the respondent are registered proprietors of the suit $\mathsf{S}$ property as tenants in common with equal shares having purchased the same under a mortgagee's power of sale. The parties were registered on the title on the 11th November, 1980. The respondent instituted proceedings in the High Court against the appellant seeking the cancellation $10$ of the Defendant's name from the certificate of title to the suit property.

The issues before the High Court were:

- Whether the suit was time-barred. 1. $15$ - Whether the defendant was a bonafide transferee $2.$ for value in respect of the property. - Whether the defendant was entitled to possession $3.$ and an account of rent. - $20$

#### Remedies. $4.$

Mr. Moses Segawa appeared for the appellant while Mr. Geoffrey Mutaawe was for the respondent. $25$

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The sole agreed issue before this court is "whether on the evidence as presented during the trial, the learned trial Judge was justified to hold that the appellant was not a joint b onafide transferee f or value of the suit property."

Mr. Segawa submitted that the learned trial judge erred to cancel the appellant's name from the title of the suit property. He premised this argument on the provisions of section 176 of the Registration of the Titles Act (R. T. A) (Cap 230) which protects a registered proprietor against ejectment except inter alia as pleaded by the respondent in:

- . . . . . . . . . . . . . . . . . . . . $\overline{a}$ $15$ - . . . . . . . . . . . . . . . . . . . . $b)$ - The case of a person deprived of any land by fraud as against the person registered as proprietor of $\mathbf{c})$ that land through fraud or as against a person deriving otherwise than as a transferee bonafide for value from or through a person so registered through fraud: - . . . . . . . . . . . . . . . . . . . . $d$ ) . . . . . . . . . . . . . . . . . . . . $e)$

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and in any case other than as aforesaid the production of the registered certificate of title or lease shall be held in every court to be an absolute bar and estoppel to any such action against the person named in that document as the grantee,

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owner, proprietor or lessee of the land described in it, any rule of law or equity to the contrary notwithstanding."

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Citing the foregoing, Mr. Segawa pointed out that the appellant's title was thus not impeachable: The certificate of Title Ex P16 was conclusive proof of the appellant's title as a tenant in common with the respondent. Relying on Kampala Bottlers Limited V Damanico (U) Ltd, SCCA No. 22/92, counsel asserted that the trial judge merely inferred something 'akin to fraud' and not on the appellant, but on her advocate, who happened to be her husband. Fraud must not be merely inferred but must be attributable to the transferee. He submitted that there was no evidence on record to $15$ support the judge's finding and orders. He prayed court to allow the appeal and set aside the judgement and orders of the High Court.

Mr. Mutawe contended that the respondent was the rightful owner of the entire property. She started negotiating for its purchase way back in 1979 and subsequently instructed M/s Mugerwa and Matovu Advocates to handle the matter. The respondent used her personal finances from Bank of Baroda

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to meet the consideration. She became registered proprietor on 11th November 1980. The name Florence Namuli and not Florence Namuli Matovu was put on the Title, nominally, on the advice of her lawyer to protect her property from being grabbed, as was the case at the time against the people from West Nile, after the fall of Idi Amin's regime. Mr. Mutawe stated that the appellant was fraudulently claiming part of the suit property having furnished no consideration whatsoever.

The learned judge found:

......... The defendant thus put forth what one doctrine $\boldsymbol{\mathsf{of}}$ would have described the $as$ advancement. Only it went on to prove that she did not pay any money for the property. The evidence also indicates that Mr. Matovu did not directly pay for the property. The explanation advanced by Hellen Oyeru about protective coownership in the aftermath of the Asian regime sounds plausible however. It tends to undermine the advancement doctrine which does not envisage a rival woman or a co-woman in a polygamous arrangement making the advancement to the other women. I have not seen that one before. The defendant, while knowing the fact of sharing the man and business locations and a driver with her rival told court that she did not occupy the property at anytime. She also reminisced on

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some low points in the relationships. She told court that the plaintiff did demand the settlement of the house issue as Matovu lay ill ................. ........... She did not hide a hinge of jealous as the Plaintiff encroached on her matrimonial enclave. It was to harbour the desire to hold Overu at a ransom and to give her a run for the *money over the house ……………………………*

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The witness knew she had not paid for the property. She also knew that Matovu had not bought it and succumbed to the ploy to rob the Plaintiff. In effect the witness alluded to the sole purchase by the plaintiff and not Matovu and intimated a putative sale of half of the property to *herself or through* Matovu her. either to Unfortunately this scenario has no support from the evidence and there is also no evidence to support the counterclaim which would be dismissed. She knew she was a surrogate.

lam thus inclined to conclude that the Plaintiff purchased the property in dispute herself without any group contribution by Mr. Matovu or any other person. She owns the property. She has also provided an explanation how Mr. Matovu skillfully juggled his several roles of the African man in a catholic matrimony but doubly associated to another female. He acts as well as the lawyer and the versatile and strong handed male for two women. He is adept at political expedience and employs this in the family setting to appease each woman according to their own conditions and expectations .......

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lam satisfied that the defendant did not acquire the property for value or love and that the action by her advocates amounted to a serious mistake or misrepresentation amounting to a breach of trust akin to fraud however naturally innocent it was thought to be .......

I accordingly enter judgement for the Plaintiff against the defendant .........."

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The appellant's testimony was that she was informed by her husband of the gift of a house he had bought for her. However, on learning that she was to share it with the respondent she hesitated to sign the application for the transfer and strongly objected because she knew her as her co-wife. The late husband threatened her with a sack if she did not sign the application. As she packed her properties ready to leave, a neighbour/friend intervened, counselled and dissuaded her against leaving the home. She eventually signed the application $-$ EX P15.

She further stated:

Matovu explained the document to me. Any $\cdots$ wife or mother would have been happy to get a property. I never doubted Matovu over the property. I knew Hellen Oyeru and I respected her. She was my late husband's mistress. We respected each other. We shared business

$\overline{Q}$ property. Amber Pharmacy for off counter things. She occupied upstairs. We shared the same driver. The landlord was late Matiya Matovu .......... I shared family driver Nsubuga Musa with Oyeru. The Malcom X house was also used by Matovu to store tin offe from his Mbarara mine. The tin ore was kept in the house where Ms. Oyeru lived. I came to understand that some tenants moved into part of the house. I was not going there ......" (sic)

Under cross-examination,- She clarified:

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... Yes I visited the property twice. First time Hellen said she was going to visit our husband in a Germany hospital in 1991. I went talked to her and sent him my regards through her. We were on talking terms. ....... She took interest in my husband's sickness. The second time I went to ask her for rent two months before my husband died. Soon after that my husband died.

I did not get the rent Oyeru objected strongly. She said Matovu never bought that house. She was however not so shocked on the issue that I claimed one wing. I did not demand share of house. As he was very sick and dying I promised him that we would settle the house issue.

In my life I was known as Florence Namuli Matovu. Yes I was in touch with Ms. Oyeru. I can't remember what name she used to call me.

It was Florence. I don't know to tell the truth if she knew my name Namuli. Overu came to the house to drop Matovu at the gate at 8.00 to 8.30pm.

It's not happy memory to see your husband dropped in the morning by another woman. She kept on dropping him. My own house was also in Malcom X near the suit property. ................................... don't know how my husband raised the money to buy this property ....... All I ask is my wing to be mine. Whatever my husband gave to me would be given to me in the absence of my husband who would give it.----

...................................... never challenged my name being on the title. She never shown any bitterness before."

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Their driver, Matiya Kagwa (DW2) confirmed the appellant's story that he was driving both families and added:

"I know Hellen Oyeru since 1980. I was introduced $25$ to her by Mr. Matovu. I was working for Mrs. Oyeru. She used to pay half of my salary and Mr. Matovu could pay me other half ....... At the time the plaintiff was staying near the Chinese Embassy ...... the house belonged to Mr. Matovu. He would at 30 times stav at Overu's house. He had many wives. He had 4 wives. One is Mrs. Oyeru, then Namuli, Eseza and Mary."

This witness was consistent throughout the crossexamination by lllr. Mutaawe.

The gist of the respondent's story is as stated under her version of the background facts to the case. 5

It is clear from botir tiie appeiiant and the respondent were co-wives and knew each other quite well despite the respondent's adamant denials. I thus find it a little difficult to believe that the respondent on seeing the name of Florence Namuli (granted she did not know that of 'Namuli) on the title deed she could have failed to ask the Advocate who that co-owner actually was and whether it was the Advocate's wife by any chance because she a t least knew one of the names. lt is highly improbable that she could have kept mum about it. Any reasonable person would be expected to ask who thcse names belonged to. A co-owner could not be a fictitious person. A title deed is not just any document. lt is property and any piece of information on it is vital. What would happen if she needed to assign or mortgage the property? There is also ciear evidence that the appellant's husband was using the suit property as owner by keeping in t0 l5 20

certain merchandise or commodities. The appellant might not have found it necessary to visit it frequently when the husband was still alive for as she testified, he used to do everything for her. She, however, testified having dropped in once in a while but after the husband's demise she did not hesitate to assert her right immediately.

Secondly from the respondent's own story, the respondent seems to have been familiar and on terms with the 1979 $10$ Liberators, for she never ran away despite having been very close to the Executive in Amin's regime. She seems to have been moving freely and rubbing shoulders with very high ranking Liberators and could even have some of them removed from the suit property so that she could take it over. 15 She testified:

.... In 1979 after the Liberation these owners ran away like every body else from West Nile ran away from Kampala to Sudan after war. I was here in Kampala after the war. I went to check on this house. I found Army Officers staying in the property as government had taken it over. I saw late Oyite Ojok army chief of staff and explained to him that it was private property and not government

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property. He allowed me to stay in it and he withdrew the army officers. When the army was removed I entered and repaired it as it had been looted .........."

Clearly this evidence does not project a terrified person and one whose property would be grabbed if solely registered in her name. When she went to ask for it from the then most feared Army Chief of Staff, in recent memory she was alone. She entered and occupied it. Very few mortals could tread that path at that time.

Furthermore, it is noteworthy that the suit property was transferred into both parties' names as tenants in common $15$ on 11-11-1980 vide Instrument No. 207916-Exp 15. The issue of being a West Niler ceased to be of any relevance during 1986 when the National Resistance Movement took over power and tried to reconcile the different fighting groups. However, it seems that the respondent never 20 bothered to move court to cancel the nominal name from the Title. It is a little strange that it is only after Mr. Matovu's death that she is asserting her right over the entire property.

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Be that as it may the respondent's pleadings target the appellant's advocate/husband who was instrumental in the preparation of the purchase in accordance with the respondent's instructions. Paragraph 12 and 13 of the plaint read:

'12. The Plaintiff shall also aver that the Defendant's claims are fraudulent, the particulars of which are:

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- Misrepresenting to the Plaintiff that the Defendant's $(a)$ name was nominally put on the Title to safeguard the Plaintiff's interests therein - Misrepresenting to the Plaintiff that the Defendant $(b)$ $15$ will never claim any proprietary rights in the Property. - Allowing the Defendant's name to be registered on $(c)$ the Title when the Defendant did not give any value for the Property. - Allowing the Defendant to be registered as a Tenant $(d)$ in common with the Plaintiff when the Defendant has no proprietary or any other interest whatsoever in the Property - Allowing the Defendant to describe herself as one $(e)$ of the purchasers of the Property when the Defendant knew for sure that she was not.

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A Photocopy of the Sale by Mortgage Deed dated 3rd November 1980 reflecting the above is attached hereto and marked "O".

neglecting and/or refusing $(f)$ Failing. to obtain information or explanation from the Defendant's Late Husband or to inquire from him as to how the **Defendant was becoming a Tenant in Common with** a total stranger, the Plaintiff.

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The Plaintiff shall further that she has suffered loss **13.** and damage and that any action on the part of the Late Matovu which was fraudulent and or dishonest so as to deprive the Plaintiff of her absolute Title to the Property should be visited on the Defendant who was the direct beneficiary thereof."

Paragraph 13 makes it clear that the said advocate's fraud 20 should be visited upon the appellant. This prayer is not legally sustainable. It is trite that fraud has to be pleaded and strictly proved. The burden of proof being slightly higher than in ordinary civil suits. This is because it is a very serious allegation and therefore requires stricter proof. Most $25$ importantly, it is well-established that fraud must relate and the transferee ... it must be attributable to "be attributable either directly or by necessary implication to the transferee. The transferee must be guilty of some

fraudulent act or must have known of such act by somebody else and taken advantage of such act." Kampala Bottlers V Damanico (U) Ltd, SCCA No. 11/92.

- The evidence does not disclose any wrongdoing by the $\mathsf{S}$ appellant either expressly or by implication apart from signing the application form for the transfer Ex P15 as directed by the husband. - A further and succinct illustration of this principle is the $10$ Australian case of Stuart & Anor V Kingston & Others 32 CLR 309 where Knox CJ held: - ....... Although A's wife had knowledge of the trust " and the facts which made the agreement of April 15 1899 a breach of trust, in taking the transfer of the seaside residence she had in the circumstances of the case acted without personal dishonesty or moral turpitude, and that consequently she was not guilty of fraud within the meaning of section 69 of 20 the Real Property Act 1886, that she took the transfer bonafide within the meaning of sections 69 and 71, that she had not cited fraudulently or been a party to 'fraud' within the meaning of S. 187, and that she was a bonafide subsequent transferee for $25$ valuable consideration within meaning of the section 249 and therefore that she had acquired an absolute and indefeasible title under the Act to the

Seaside residence, and her representative was entitled to hold it free from the trusts of the testator's will."

The foregoing notwithstanding, the learned Judge classified the advocate's conduct as being "akin to fraud."

The word 'akin' is defined by the Longman Dictionary of Contemporary English as "from the same family; related; having the same appearance, character, etc; $10$ like: His beautiful writing is akin to drawing":- To my mind, therefore, the phrase 'akin to fraud' would indicate that the learned Judge did not find actual fraud against the advocate but some other conduct which he could best explain as being 'like' fraud.

I would thus allow the appeal and make the following orders:

The respondent is to render an account of the a) income derived from the appellant's wing of the property comprised in Leasehold Register Volume 422 Folio 23 Plot 29 Borup Avenue, (of which both of them are registered proprietors as tenants in common) from 30-10-1991, the date when a formal demand was made, till payment in full.

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This is to be complied with within 2 months of the date of this judgement, before the Registrar of the Court of Appeal. - Interest thereon at 20% per annum till payment in $\boldsymbol{b}$ ) full. - An order for legal possession of the said wing of $c)$ the property. - $d)$ A permanent injunction against the respondent, her servants and agents from interfering with the respondent's wing. - Costs of the suit here and below. $e)$

Since my Lords A. Twinomujuni and C. K. Byamugisha JJ. A both agree the appeal succeeds with orders as above $15$ indicated.

Dated at Kampala on the $\frac{1}{2}$ day of $\frac{1}{2}$ day of $\frac{1}{2}$ 2008.

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Ser life a

HON. A. E. N. MPAGI-BAHIGEINE, JA JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA L HON. JUSTICE A. TWINOMUJUNI, JA HON. JUSTICE C. K. BYAMUGISHA, JA

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## CIVIL APPEAL NO. 15 OF 2006

#### FLORENCE NAMULI MATOVU.................................... $15$

## **VERSUS**

# <table> HELLEN OYERU....................................

## JUDGMENT OF HON. JUSTICE A. TWINOMUJUNI, JA

I have had the advantage of reading, in draft, the judgment of my Lord.

Justice Mpagi-Bahigeine. I agree with it and the orders she proposes to $25$ make. I have nothing useful to add.

$\overline{6}$ day of $\overline{5}$ unl 2008. Dated at Kampala this.......

uno

Twinomujuni

Hon. Justice Ands

JUSTICE OF APPEAL.

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEIENE, JA. $\mathsf{S}$ HON. JUSTICE A. TWINOMUJUNI, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.

#### CIVIL APPEAL NO.15/06

## **BETWEEN**

FLORENCE NAMULI MATOVU::::::::::::::::::::::::::::::::::::

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### AND

### HELLEN OYERU::::::::::::::::::::::::::::::::::::

20 Appeal from the judgment and orders of the High Court of Uganda sitting at High Court Kampala Circuit (Okumu- Wengi J) dated 31st August 2005 in HCCS No.681/98

#### Judgment of Byamugisha, JA

I had the benefit in reading the draft copy of the judgment that Mpagi-Bahigeine $25$ J. prepared. I agree with her that this appeal ought to succeed. However I have a few remarks of my own to make for emphasis.

The appellant and the respondent became registered proprietors of the suit

property comprised in Leasehold Register Volume 422 Folio 23 Plot 29

Malcolm X Avenue Kololo in Kampala on 11th November 1980 as tenants in 30 common. The transaction was handled by Messers Mugerwa &Matovu Advocates on their behalf. The late Matovu was a partner in the law firm and a husband to the appellant. He specifically handled the transaction and was paid his legal fees according to the respondent.

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At the trial, the respondent claimed that because she was from West Nile she feared victimization as most of her tribes' men and women had fled the Country after the fall of Amin's Government. Her advocate advised her to have another person to nominally co-own the property. She agreed to the proposal but did not

know the identity of the person whose names was put on the register. She also $\mathsf{S}$ denied that she was late Matovu's mistress.

The appellant's case was that her late husband informed her that he had purchased the property in question for her as a gift. She knew the respondent as her late husband's mistress and she knew she was being registered on the suit

10 property with her although she first resisted but agreed after being persuaded by a friend of the family.

The respondent filed the suit in the High Court seeking a declaration that the appellant had no proprietary interest in the suit property and the rectification of the certificate of title to remove the appellant's name from the register.

15 The learned trial judge gave judgment in favour of the respondent based on the fact that the appellant supplied no consideration.

The word consideration is defined in **Osborn's Concise Law Dictionary** thus: "To constitute a simple contract $(q, v)$ an agreement must amount to a bargain, each of the parties paying a price for that which he receives from the other. This price is referred to as consideration. In Currie v Misa $(1875)$ L. R. 10 Ex 162 consideration was defined as "some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or

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responsibility given, suffered or undertaken by the other". If therefore one party e.g gives a right or benefit, he gives consideration. Equally, if a party incurs or undertakes responsibility, he gives consideration."

It is clear to me at least from this definition that consideration does not have to be monetary in nature. It can be in kind.

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The evidence of the respondent was that she was advised by her advocate which advice she accepted that as some one from West Nile she needed protection from victimization and needed a co-owner. Therefore whatever name was put on the title, there was a consideration for it. There was a price for her being on

$10$ the title although not a monetary one. It is immaterial that the names that were put on the title turned out to be that of the legal wife of her advocate. It not enough for the respondent to say that if she had known the identity of the appellant she wouldn't have accepted her on the title. In my view this court is not concerned with the intricacies of the relationship between late Matovu and the women in his life. Our duty is to enforce the law as it is. 15

The appellant having been registered as proprietor she could only be ejected under section 176 of the Registration of Titles Act if the respondent succeeded in bringing herself within its ambit. The section provides that the production of a certificate of title shall be held in every court to be an absolute bar and estoppel to any action of ejectment "any rule of law or equity to the contrary" notwithstanding". The respondent had to show that she was wrongfully deprived

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of'hcr land through liaud on the part ol-thc appcllant or that she kncw olthe Iiaud on thc part ol'sonrcorrc clse ancl t(x)k advantagc ol' it. 'l'hc liaud had to bc actual or inrplicd. 'l hc las, has lonq bccn cstahlishcd that ihc registcr is o cvcr\ th in!l

In the instant appeal the evidence that was adduced by rhe respondent in the lou,,.:r court and which formcd the basis olthe decision of the learned judge rvas not in proolol'fraud by the appellant at the time she became registered. The evidence was to prove that she n,as the sole purchascr ofthe suit propert),.

t0 She did not prove that she was deprived of land at the tine o1'her registration on I l'r' November 1980 through lraud or thercafte r by the appellant.

Her evidence contradicted the transf'er fbrm (Exhibit p. I 5 ) which she signed and uhich stated in clause 3 thereof that the consideration of l, 500,000/: was paid by the purchasers. The rule has long been established that a party is bound

I5 by declarations and recitals in a document which are certain, precise and unambiguous. Clause three ofthe transfer form is clear and precise. The respondent is bound by it.

Her oral and documentary evidence that contradicted or tried to vary the above clause was inadmissible under the provisions of sections 9t and 93 of the

20 Evidence Act.

would allow the appeal in the terms proposed in the lead judgment.

Dated at Kampala this....................................

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C. K. Byamugisha Justice of Appeal