Mukuba v Kiyimba Lubega (Miscellaneous Cause No. 107 of 2022) [2023] UGHCLD 38 (11 January 2023)

## THE REPUBLIC OF UGANDA

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

### MISCELLANEOUS CAUSE NO. 107 OF 2022

MUKUBA CHARLES :::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

VERSUS

JULIUS KIYIMBA LUBEGA ::::::::::::::::::::::::::::::::::::::::RESPONDENT

#### BEFORE: HON. JUSTICE BERNARD NAMANYA

### JUDGMENT

## Introduction:

1. The applicant brought this cause under Article 26 of the Constitution of Uganda (1995), Section 33 of the Judicature Act (Cap 13), Section 98 of the Civil Procedure Act (Cap 71) and Order 52 rules 1 & 2 of the Civil Procedure Rules (SI 71-1) seeking for: i) an order severing the joint tenancy between the applicant and the respondent in respect of land comprised in Block 253 Plot 1223, land at Lukuli, Kyadondo, Ssabagabo measuring approximately 0.121 hectares ("the suit land"); iii) a declaration that the applicant is entitled to approximately 16 decimals, being the developed portion, to be severed from the suit land; and iv) costs of the cause.

# Background:

2. The background to the case is that the applicant and the respondent are registered as joint owners of the suit land. The applicant claims to have solely developed part of the land with rental units, with one of the units currently occupied by the respondent freely without payment of rent. The applicant wishes to sever the joint tenancy so that the suit land is sub-divided, and each of the parties acquires a separate and independent certificate of title.

# Representation:

3. The applicant was represented by Mr. Njogu James Wangui while the respondent was represented by Mr. Asiimwe Mugumya Allan. Both parties filed written submissions which I have considered.

## Issues to be determined by the court:

- 4. The issues for determination by the court are: - i). Whether the suit land is held in joint tenancy by the applicant and the respondent. - ii). Whether there are grounds that merit severance of the joint tenancy. - iii). What are the remedies available to the parties? - 5. The determination of the case before me requires the application of common law principles and doctrines of equity as set out by Section 14 (2) (b) of the Judicature Act (Cap 13), which provides that:

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"(2) Subject to the Constitution and this Act, the jurisdiction of the High Court shall be exercised— (a) in conformity with the written law, including any law in force immediately before the commencement of this Act; (b) subject to any written law and in so far as the written law does not extend or apply, in conformity with— […] (i) the common law and the doctrines of equity […]" (underlining is mine for emphasis)

# Issue No.1: Whether the suit land is held in joint tenancy by the applicant and the respondent

6. I wish to begin the discussion of the issue at hand with Section 56 of the Registration of Titles Act (Cap 230) which provides that: "Two or more persons who are registered as joint proprietors of land

shall be deemed to be entitled to the land as joint tenants […]"

- 7. According to Megarry & Wade: The Law of Real Property, 9th Edition, Stuart Bridge, Elizabeth Cooke and Martin Dixon, Sweet & Maxwell, London, 2019 at paragraph 12-015), where legal title to property is vested in two or more persons they are presumed to be joint tenants. - 8. According to the certificate of title of the land, annexure A attached to the affidavit in support of the notice of motion, "Julius Kiyimba Lubega (respondent)" and "Mukuba Charles Lwanga (applicant)" were entered as

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registered proprietors of the suit land on the 3rd November 2015 under Instrument Number KCCA-00022572.

- 9. According to Section 59 of The Registration of Titles Act (Cap 230), a certificate of title issued under the Act is conclusive evidence of ownership of land, and shall be received in all courts as evidence of the particulars set forth in the certificate of title. - 10. It is abundantly clear to me that according to the evidence adduced by the applicant and the law, there exists a joint tenancy on the suit land held by the applicant and the respondent. - 11. Accordingly, Issue No. 1 is answered in the affirmative.

### Issue No. 2: Whether there are grounds that merit severance of the joint tenancy

- 12. The Registration of Titles Act (Cap 230) does not provide for ways through which a joint tenancy can be severed. This paves the way for the application of common law principles and doctrines of equity in severance of the joint tenancy. - 13. The law on severance of the joint tenancy is set out in Megarry & Wade [ibid] at paragraphs 12-036 to 12-043) where the authors say that a joint tenancy can be severed both at law and in equity. - 14. A joint tenancy may be severed in three ways: firstly, an act by any one of the joint tenants can sever his or her interest from the joint tenancy; secondly, a

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joint-tenancy may be severed by mutual agreement; and thirdly, the course of dealing between the joint tenants may lead to the inevitable conclusion that the interests of the joint tenants is severed [see the case of Williams v. Hensman [1861] EWHC Ch J51 70 ER 862, (1861) 1 J & H 546 per Vice-Chancellor Sir W. Page Wood].

- 15. The question of severance of a joint tenancy was considered in the case of Zachary John Olum v. Bongomin John Odora & 4 others, Civil Application No. 120 of 2015 (High Court of Uganda, Gulu). The brief facts of the case were that the applicant and the respondents jointly owned a chunk of land measuring 1,499.616 acres. The applicant sought an order from court for subdivision of that land so that the applicant could secure a title deed in his sole name to his 875.543 acres separate from the respondents' land. The respondents opposed the sub-division of the land, arguing among other things, that the applicant had procured registration as a co-owner of the land through fraudulent means. Justice Stephen Mubiru held that the course of dealing between the applicant and the respondents showed that the parties owned the land as tenants in common rather than as joint tenants, and that the applicant was entitled to a court order severing off his portion of land measuring 875.543 acres. - 16. In the affidavit of Mukuba Charles Lwanga, in support of the cause, the applicant testified that:

Type text here

- i). Both parties are the joint registered proprietors of the suit land; - ii). The respondent has made it impossible for joint usage of the suit land;

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- iii). There is need to subdivide the land held by the applicant and the respondent as joint tenants so that each can acquire a separate certificate of title; and - iv). The applicant has since developed part of the land, and would wish to possess his own independent title deed in his own names. - 17. On the other hand, the respondent (Julius Kiyimba Lubega) swore an affidavit opposing the severance of the joint tenancy. - 18. By a supplementary affidavit in support of the notice of motion sworn on the 28th September 2022, the applicant, especially in paragraphs 3, 4, 5 & 6, adduced evidence that he solely funded the construction of rental units which occupy approximately 16 decimals of the land, without any contribution from the respondent. The applicant further testified that the respondent forcefully entered and occupied one of the rental units that he constructed. - 19. At the instance of the respondent, the applicant, who resides in the United States of America appeared in court on the 11th November 2022 by Zoom video link, for cross-examination by the respondent's counsel. The applicant testified that he pays all the taxes and maintenance costs for the rental units. The applicant maintained his stand during the cross-examination that he funded the construction of the rental units without any contribution from the respondent. The applicant's evidence was not rebutted or controverted during the crossexamination or by affidavit evidence. - 20. The evidence adduced by the applicant is that he does not desire to continue with the joint tenancy. The course of dealings between the applicant and the respondent is such that the joint tenancy is deemed to have been determined and replaced by the tenancy in common.

21. I am satisfied that the applicant has proved his case on the balance of probabilities that he is entitled to an order severing the joint tenancy.

#### 22. According to Megarry & Wade [ibid] at paragraph 12-043

"Severance by a course of dealing depends upon the inferences drawn from conduct where there is no express act of severance. To fall within this head of severance there must be a "a course of dealing by which the shares of all the parties to the contest have been affected" […] the acts and dealings with the property must indicate an intention by them that they should hold in common."

# 23. In the case of David Dunbabin v. David Dunbabin [2022] EWHC 241 (Ch), HHJ Paul Matthews, Judge, while deciding to severe the joint tenancy, held that:

"In my judgment, the evidence satisfies me that there was a course of conduct […] which showed that one party (indeed, each party) made clear to the other that one desired that their property should no longer be held jointly but be held in common."

24. In accordance with the law, especially the cases of David Dunbabin (supra); Williams v. Hensman (supra); and Zachary John Olum (supra) as well as the textbook by Megarry & Wade [ibid] at paragraph 12-043), it is my decision that the conduct of the parties, and the way in which they have dealt in the suit land over time, shows that for all intents and purposes, they hold the suit land

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as tenants in common rather than joint tenants. It is my holding therefore, that sufficient grounds exist in the case before me, for severance of the joint tenancy.

25. Issue No. 2 is therefore answered in the affirmative.

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

- 26. On the 5th day of December 2022, I carried out a locus visit to the suit land located at Lukuli, Nanganda – Makindye in accordance with Direction 3 of The Chief Justice's Practice Direction No. 1 of 2007. - 27. Present at the locus visit were the following: - i). Njogu James Wangui counsel for the applicant - ii). Asiimwe Mugumya Allan counsel for the respondent - iii). Julius Kiyimba Lubega the respondent - 28. At the locus visit, I made the following observations: - a) Part of the suit land is developed with five rental units which are occupied by tenants; - b) The applicant wants to sever the developed portion of the suit land which is occupied by rental units, from the rest of the land; - c) The respondent occupies one of the rental units; and - d) The respondent carries out a carpentry business on the undeveloped lower section of the suit land which borders the main road. - 29. The applicant prayed for the following reliefs:

- a) An order severing the joint tenancy between the applicant and the respondent in the suit land; - b) A declaration that the applicant is entitled to approximately 16 decimals of the suit land; - c) An order directing the partitioning or sub-division of the suit land to enable the applicant own a separate certificate of title for his portion of the land; and - d) Costs of the suit.

## An order severing the joint tenancy

30. I have already ruled in Issue No. 2 that there are sufficient grounds for severance of the joint tenancy. I therefore, issue an order severing the joint tenancy between the applicant and the respondent in the suit land.

## A declaration that the applicant is entitled to approximately 16 decimals of the suit land

31. I am satisfied with the evidence adduced by the applicant that he solely funded the construction of rental units on the suit land. I therefore, declare that the applicant is entitled to ownership of a portion of the suit land measuring approximately 16 decimals currently occupied by the rental units.

### An order directing the sub-division of the suit land

32. To enable the applicant to procure a certificate of tittle for his portion of the suit land, I issue an order directing the Commissioner for Land Registration to sub-divide the suit land, and process two certificates of title, one for the portion of land owned by the applicant, and the other for the portion of land owned by the respondent.

## Costs of the suit

33. I note that the applicant and the respondent are brothers, and in the interest of promoting family reconciliation, harmony and unity, I order that each party shall bear its own costs of the suit.

### Conclusion:

- 34. In conclusion, I enter Judgment in favour of the applicant, and grant the following reliefs: - i). An order severing the joint tenancy between the applicant and the respondent in the suit land. - ii). A declaration that the applicant is entitled to ownership of a portion of the suit land occupied by the rental units measuring approximately 16 decimals. - iii). An order directing the Commissioner for Land Registration to subdivide land comprised in Block 253 Plot 1223, land at Lukuli,

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Kyadondo, Ssabagabo measuring approximately 0.121 hectares (30 decimals), and process two certificates of title:

- a. firstly, a title deed for the applicant in respect of a portion of land currently occupied by rental units (measuring approximately 16 decimals); and - b. secondly, a title deed for the respondent in respect of the remainder of the portion of land currently utilised for carpentry business (measuring approximately 14 decimals). - iv). An order that each party bears its own costs of the suit.

I SO ORDER.

BERNARD NAMANYA

JUDGE 11th January 2023