Mugalula v Nalwanga (Misc Cause 7 of 2023) [2025] UGHCLD 46 (20 March 2025)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA ILAND DTVTSTONI Mrsc. cAUsE No. 07 0F 2023 MUGALULA JOHN APPLICANT VERSUS

## NALWANGAJACENT RESPONDENT BEFORE: HON. LADY JUSTICE ELIZABETI;I JANE ALIVIDZA

#### RULING

#### Background

This Application is brought under Article 50 (1), (2) and 26 of the Constitution of the Republic of Uganda, Sections 14 and 33 of the Judicahtre Act, Section 98 of the Ciuil Procedure Act Cap 71, The Judicature ( Rights and Freedoms) (Enforcement Procedure) Rules 2008 and Order 52 of the Ciuil Procedure Rules 5.1 71 - | seeking for orders that: -

> o. A declaration that the Applicant purchased the land Comprised in Busiro 40 1 Plot 1789 at Kisuku and Mawanyi measuring approimately 0.0250 hectare (subject land) and decided to have it registered jointly in his name and that of the Respondent.

> b. An order directing the partition, subdivision and termination of co-ownership of the subject land between the

Applicant and the Respondent to enable the Applicant appropriate and registrar his portion in his own narne.

c. An injunction restraining the respondents from interfering with the Applicant's proprietarSr right in the subject lard.

d. Genera-l damages for violation of the Applicant's right to property.

e. That the costs of this application be provided for

The Application is supported by the Affidavit of Mugalula John the Applicant dated 25th May 2022, which states the grounds of the Application as follows;

- 1 That on the 26th day of September 20 1 5, the Applicant acquired land comprised in Busiro Block 40 1 Plot 1789 at Kisuku and Mawanyi measuring approximately 0. O25O hectares (subject land) by way of purchase from a one Musa Nuwagaba at a consideration of UGX. 120, 000,000. - 2 That he trusted the Respondent and decided to have the land jointly registered in his name and those of his wife the Respondent. - 3 That the Respondent never contributed to the purchase of the subject land but the Applicalt later a-llotted 107o share in the subject land as a gift to the Respondent. - 4 That he is in possession of the subject land and has custody of the duplicate certificate of tittle.

<sup>2</sup> 6rr

- <sup>5</sup> That the Applicant has children with the Respondent and other children from his previous relationships and he desires to sell or mortgage his share in the subject land to carry out income generating activities for the sustenance of his family and payment of his debts, all which cannot be done because the land is jointly registered in the narnes of the Applicant and the Respondent. - That he has on several occasions approached and requested the Respondent to accept the mortgage or sell of part of the subject land but the Respondent has refused to co-operate yet the subject land is neither a family land nor matrimonial property. 6 - That the Respondent's consent and signature is required before any transaction can be effected on the subject land. 7 - That the Appticant has a right to unilaterally seek severance of the title without consent of the Respondent, yet the Respondent has, in violation of Applicant's constitutional rights to property, refused to co-operate in the proposed sub-division and physically partitioned and subdivided so that he can deal with his share the way he wants. 8 - That the Respondent has prevented the Applicant from exercising his rights in subject land, stopped him from mortgaging it, and stopped him from selling his share or developing it. 9 - That the Respondent's conduct is coercive, abusive and unfairly disregards the interests of the Applicant in the subject land yet l0

his interest in the subject land is inextricably interwoven with that of the Respondent therefore, there is a need to partition the subject land to enable the Applicant deal with his interest the way he wants.

- 11 That there is also a need terminate the co-ownership and subdivide the subject land to enable the Applicant appropriate and registrar his portion in his own name. - 12 That this Honourable Court has inherent powers to order the partition, subdivision and termination of co-ownership of the subject land as Court of competent jurisdiction and it is in the interest of justice that this Application be a-llowed.

The Respondent filed an Affidavit in reply sworn by Nalwanga Jacent, premised on the grounds below;

- I That with the help of her lawyers M/s. Mugera, Kusaasira & Co. Advocates, she read and clearly understood the contents of the Notice of motion and the accompanying Affidavit in support sworn by the Applicant and found the same to contain matters of irregularities and falsehood intended to mislead this honorable Court. - 2 That she has been advised by her lawyers which advise she believes to be true that this Application seeks this honorable Court to sanction an illegality and preliminary points of law shall be raised to the effect that. - 3 That this Application is incompetent and incurably defective as it seeks this honorable Court to order a subdivision of land

a{Y

measuring 0.0250 hectares in contravention of the directives of the National physical planning board forbidding registration of titles less than 0.46 hectares in wakiso District where the suit property is located.

- 4 That this Application is prematurely brought before court as the applicant had to first seek redress from the land tribunal on the failure by the Respondent to grant her consent to deal with the suit land. - 5 That the Application should be dismissed with costs for nonservice on the Respondent. That without prejudice to the above, she further depones this Affidavit in opposition to the Application as herein. - 6 That she was never served \Mith the Application in this matter but only got to know it from one of her sons Peter Ssendagala who received the Application via WhatsApp from someone anonymous and later informed her about the Application. - 7 That when her son informed her about the documents, she immediately contacted her lawyers M/s. Mugera Kusaasira & Co. Advocates on the 6th day of July 2023 who informed her about the contents of the Application and advised her to file a reply to the same and further inform Court about the nonservice by the Applicant. - 8 That the Applicant knows her residential address, but he never served her with the Court documents. That the Applicant and the Respondent are married, and they solemnized our marriage on the 29th day of February L992 in the church of Uganda at

Kasozi parish with four children Nsikobi Patrick, Nkata Fred, Kajjubi lvan and ssendagala Peter all who are of majority age but with Ssendagala Peter a dependent.

- 9 That in reply to paragraph 2 and 3 of the Affidavits in support, that during the subsistence of their marriage, they had a family business called Mutto Hardware in Entebbe from which they saved UGX, 150,000,000 which money the Applicant used to purchase the subject family land for the purpose of deriving family income and that it was registered in both their names as joint tenants with equa,l interest and share and, both of them had to contribute to the development of a storage building for generating family income. - <sup>10</sup>That in further reply to paragraph 5 of the Affidavit in support, she was the one overseeing, monitoring, and supervising the construction of the storage building on the land during the time when construction was taking place as well as managing the letting out of the completed floors and rooms of the storage building on suit land until this l"t May of 2022 when the Applicant forcefully took over the property. - <sup>11</sup>That in further reply to paragraph 6 of the Affidavit in support, her family used to derive monthly income from the ground floor of the storage building which income was being used for sustaining their family and that she has been making contributions for the construction of the storage building that is currently on the suit land.

<sup>6</sup> ail

- <sup>12</sup>That in specific reply to paragraph 7 and 8 the Applicant has always wanted to sell or mortgage the suit property and use the purchase sum or loan amount for his personal use at the expense of the family which transactions she has refused to consent in order to protect her family's livelihood. - <sup>13</sup>That the Applicant is in a habit of selling several family properties without her knowledge at the expense of his family. - <sup>14</sup>That from the time the Applicant forcefully took over management of the tenants, their family has been deprived of the income from rent since now the Applicant uses the rent for his personal use. - <sup>15</sup>That in specific reply to paragraph 9,11, and 12, she has been advised by her lawyer's M/s Mugera Kusaasira and company Advocates, that the suit land is less than 12 decimals and subdivision of the same to create separate titles contravenes the directive of the National Physical Planning board to title only land measuring 12 decimals. - <sup>16</sup>That in specific reply to paragraph 13 of the Affidavit in support, if Court grants this Application, this will lead to the destmction of the storage building on the land which will deprive their family of the current income it was deriving from the storage building. - l7That it is in the interest of justice and her family that this Application is not granted but dismissed by Court with costs and, the Applicant be ordered to return the management of the

suit property to her in order to enable my family access income to sustain it.

Counsel filed written submissions. I have carefully considered the arguments raised.

### Consideration of Court

I have determined this Application in three main a-reas. I sha-ll start with procedural issues.

## Whether the Application is properlg before Court

The Respondent submitted that the Applicant should have gone to the Land Tribuna-l for redress where he felt oppressed and not to this Court.

I am aware that Land Tribunals ceased to exist in2006. On December l,2006, the Chief Justice issued Practice Directiue No. 1 of 2006' allowing Magistrates of Grade One and above to exercise land-related jurisdiction in accordance with Section 95 (7) of the Land Acl, until new chairpersons and members of District Land Tribunals are appointed or otherwise. As a result, from December l, 2006, Magistrate Courts regained jurisdiction over land matters.

The Applicant wants the suit land subdivided and his share registered into his names. This will require cancellation of the existing certificate of title jointly held by the parties. These remedies can only be given by the High Court.

Therefore the objection lacks any merit.

The Respondent argued that the subdivision of the suit land was impossible given its size. This can only be proved at implementation stage.

I a-lso note that there is nothing hypothetical in the ownership/coownership in this instance as both parties agree to the same and concretized with a certilicate of title and physical presence of the actual suit property which has caused the loss of peaceful possession/enjoyment from both parties and involves deprivation. There is therefore no fault in the procedure used.

Respondent's Counsel's submission that this matter should have been handled by the Land Tribunal is rejected.

#### Familu land/ matrimonial oropertu.

The facts reveal that the parties are husband and wife. They have a family together and co-own property together. The Respondent's Counsel argued that the suit land is family land/ matrimonial property. That the Respondent had a justifiable cause not to consent to the sell and or partition of the suit property.

This makes this matter a family dispute that should be handled in the Family Division of the High Court. The parties are advised to go for mediation and counseling to resolve this issue.

I also note that both parties in their pleadings mentioned different amounts used to purchase the suit land. The Applicant stated that he purchased the suit land at UGX 120,000,OO0 using his own funds. The Respondents stated that the funds amounting to UGX 150,

000,000 came from their family business. There is need for evaluation of evidence to ascertain the existence of key facts.

The facts as outlined in the Affidavits need further interrogation. It is not clear whether the parties'marriage was dissolved and martia-l property distributed or whether it is still valid. The status of the marriage determines the outcomes of each party rights to the suit land.

It is my conclusion that there is need to bring a proper ordinary suit that can be heard on merit. This will enable to Court reach a fair and just decision made based on the law and evidence.

For the reasons stated above the Application is dismissed.

Each party bears their own costs.

I so order.

E,lizabe Jane Alividza

#### Judge

#### Date

20th March 2025

Ruling delivered on ECCMIS


Elizabeth Jane Alividza

Judge