Namagembe v Kawala (Divorce Cause No. 1 of 2017) [2023] UGHCFD 6 (7 February 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAillLY DlvlSlON) DlvoRcE CAUSE NO.001 0F 2017

NAMAGEMBE WINNTFRED M. KAWAKA PETITIONER

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PADDY MATSAGA KAWAKA :::::::::::::::::::::::::::::::;::::::::::::::::: RESPONDENT

## BEFORE: HON. JUSTICE DR. FLAVIAN ZEIJA

#### JUDGMENT

#### Brief Backqround

The Petitioner filed Divorce cause No. 001 of 2017 seeking for orders to dissolve her marriage with the Respondent on grounds of adultery, cruelty and desertion, an order granting her 5070 ownership of the matrimonial property that had jointly been acquired during the subsistence of the mamage, alimony in the sum of UGX. 10,000,000 (Ten Million Shillings)' damages, costs and any other relief this Court deems fit'

According to the amended Petition the Petitioner and Respondent were united in a civil maniage on 9rh May 201 1 at Kampala Registry of Marriages, They jointly purchased, owned and developed property comprised in Busiro Block 337 Plot 996 land at Mugongo, Busiro Block 383 Plot 2433 land at Kitende. They begot no issues in maniage. However, the Respondent contracted another customary marriage and begot one male child named Kevin The Respondent, since contracting the customary marriage, became cruel to the Petitioner in several ways which included verbal insults as well as physical beating and slapping

The Respondent filed an amended answer to the Petition and a Cross Petition in which he stated that whereas it is true that the Petitioner and Respondent contracted a Civil Maniage

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on 9th May 2011, the same was a nullity. That the Petitioner has never made any contribution directly or indirectly to any of the properties listed in the petition and has no claim of right thereto as the same were acquired way before the impugned marriage. The Respondent averred that it is instead the Petitioner who, during the subsistence of the marriage, committed adultery with several men and deserted him.

In rejoinder to the petition and answer to cross petition, the Petioner averred that she and the Respondent had been dating since their youth and that she personally sent money to a one Lumunye Ronald to purchase property comprised in Busiro Block 383 Plot 2433 Kitende Wakiso district. That the Respondent convinced her, and she agreed, that since this was supposed to be matrimonial property, it should be registered in the husband's name in accordance with the African Buganda culture as a sign of manhood and commendation among the husband's peers. Later in 2008, she again sent money to Lumunye Ronald to purchase property comprised in Busiro Block 337 Plot 996 land at Mugongo but this time, she insisted to be registered as joint owner on the Certificate of Title and the Respondent obliged. The Petitioner maintained that she requires alimony for her feeding, clothing, utility, medical insurance, shelter, out of pocket expenses, travel, holidays, vacations, entertainment and other miscellaneous expenses to maintain the lifestyle that she lived since the Respondent deserted her.

The Respondent filed a rejoinder to the Cross- Petition wherein he denied as untrue, all the Petitioner's averments contained in the answer to the cross-petition.

#### Representation

The Petitioner was represented by Nexus Solicitors and Advocates while the Respondent was represented by M/s Newmark Advocates

Before commencement of the trial, the parties entered into a consent settlement which was endorsed by court and agreed as follows;

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- a) The marriage between Namagembe winnifred M Kawaka and Paddy Matsaga Kawaka solemnized at the Kampala Registry of Marriages on 9rh May 201 1 be dissolved and a decree nisi be issued. - b) The Petitioner and Respondent shall share the land (and developments thereon) comprised in Busiro Block 337 Plot 996 at Mugongo, Kyengera, Wakiso district in equal proportions of 500/o /50% (fifty /fifty percent). - c) The ownership of property comprised in Busiro Block 383 Plot 2433 at Kitende shall be tried and determined bY court.

Counsel for both parties informed court that they had therefore zeroed down on one issue i e whether property comprised in Mengo- Busiro Block 383 Plot 2433 at Kitende is jointly owned by the Petitioner and the Respondent? Consequently, the matter proceeded to trial on only one issue as to the ownership of Busiro Block 383 Plot 2433 at Kitende

Three witnesses (including the Petitioner) adduced evidence for the Petrtioner while the Respondent's evidence was adduced by two witnesses including himself'

ln her sworn testimony, the Petitroner (PW1) testified that whiie she and the Respondent stayed in South London Sutton United Kingdom, the Respondent was not working. The Petitioner having travelled on a Visito/s Visa could not access employment in the United Kingdom formally but she was able to start working 'underground' using somebody else's papers from late 2004 up to 2010. That her first job was in Costco warehouse where she was earning 11 pounds per hour. Thereafter she started working two iobs in two separate nursing homes at the same time. lt is out of eamings obtained from this 'underground' work that she was able to send Lumunye Ronald (a very good friend to the Respondent) money in the year 2005to purchase property comprised in Busiro Block 383 Plot 2433 Kitende, Wakiso district on which they agreed to construct a double storied house, to be their matrimonial home. That the Respondent then successfully convinced the Petitioner that in the African Buganda culture. the matrimonial home should be in the husband's name as this is a sign of manhood to command the husband respect among his peers, That the Petitioner contributed towards the construction of the double storied house on Busiro Block 383 Plot 2433 and it therefore only fair that the tangible products of her sweat and hard work are not taken from her

During cross examination, the Petitioner stated that she left the documents in support of her fictitious identity and employment claims in England and was therefore, not able to adduce the same in evidence. That she sent money for construction of their matrimonial home through Western Union. She does not know the names of the neighbors to the matrimonial home except for a one Hadji because she has at all material times been hindered by the Respondent from visiting. She is not aware of the number of bedrooms in the house. The construction of the house started in mid or late 2005 and it is situated on Bwebaija hill, Entebbe Road' Shown paragraph 7 of her supplementary witness statement where she indicated the location of the residential house as Kitende, she maintained that it was one and the same location She stated that she did not know the name of the LC1 Chairperson where the disputed property is located and she was unaware of the definitive direction to the location of the property.

PW2 who is a Forensics document examiner received a request from M/s Simon Tendo Kabenge Advocates, then Counsel for the Petitioner on 4th March 2009 to examine and compare signaturm on several documents including land purchase agreements and pleadings signed by the Respondent for purposes of establishing whether the Respondent purchased the disputed land comprised in Block 383 Plot 2433 land at Kitende. During cross examination, he testified that he did not see the original sale agreements but ratfrer depended on photocopies. He stated that he could not confirm with certainty whether the signature on the sale agreement of Block 383 Plot 2433 land at Kitende belonged to the Respondent or not.

pW3, Lumunye Ronald in his sworn statement testified that he got to know the Petitioner through the Respondent in the year 2002 when the Petitioner and Respondent were dating as boyfriend and girlfriend. That in the year 2005, the Petitioner, while in the United Kingdom sent him money to purchase land comprised in Busiro Block 383 Plot 2433 land at Kitende, That neither the Petitroner nor the Respondent signed the sale agreements but rather' PW3 is the one who signed both as witness and purchaser. The Petitioner and Respondent both directed PW3 to enter the Respondent's name alone on lhe Certificate of Title of the disputed land.

During cross examination however, PW3 stated that he was a foreman at the Respondent's construction site and he used to receive money from the Respondent for several purposes including construction of the residence on the disputed land until the year 2010 when he was relieved of his duties.

The Respondent's evidence adduced in his sworn witness statement is that he solely purchased the disputed property comprised in Busiro Block 383 Plot 2433 land at Kitende in the year 2005 even before he met the Petitioner and the Petitioner has never made any monetary contribution to its purchase or development. That in 2002 when he left Uganda for the United Kingdom, he obtained employment as a security officer in a company offering private security services. In the year 2004, he asked his friend Lumunye Ronald to help him identify some land on a hilly location along Entebbe Road. It was in 2005 that the said Lumunye Ronald found some land on sale around Bwebajja near Bwebajja gardens. That the Respondent purchased the said property at UGX. 12,500,000 and paid the first instalment of UGX. 10,000,000 which he sent to Lumunye Ronald who represented him at the signing jointly with another colleague of his called Kiyimba Godfrey. That the Respondent paid the balance after one month after which he was given transfer forms and he also sent money for processing the land title in his names as it involved subdivision from the bigger title which was in the names of the original proprietor Mr. Ssekitoleko. That in order to secure his land from encroachment, DW1 had to sell off his BMW Motor vehicle back in the United Kingdom because he needed immediate cash to start fencing off the land. That at the time of purchase and development of the disputed land in 2005, DW1 had not met the Petitioner as he was still married to another woman. He got to first physically meet the Petitioner in late 2006 through a colleague called Geoffrey. That between 2006 and 2007, the Petitioner was operating under the radar and had no work because she was illegally staying in the UK and only started work at an elderly persons care home in 2007 when DW1's friend Hussein got her working papers in the names of Habiba Kalekezi who happened to be Hussein's sister. That he returned to Uganda in late 2010 and got married to the Respondent in 2011 after he had already developed his property on the disputed land and even put up cottages. That the 2nd phase of construction was managed by Hussein who had resettled back in Uganda from the United Kingdom. That DW1 stopped PW3 Lumunye Ronald from managing his projects because he had misappropriated funds sent for his projects and the said Lumunye Ronald had also connived with a one Luzige (brother to the Petitioner) to impersonate DW1 and use the certificate of title of the disputed land to obtain a loan facility from centenary bank. It is from

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Centenary Bank that DW1 retrieved his certificate of title in 2010 after paying over UGX. 12, 500,000 to release the mortgage. That PW3 Lumunye Ronald has since become hostile towards DW1. DW1 further testified that his neighbors at the disputed land are Gerald, Asiimwe, Balaam and Bwebajja gardens on the other side. There is no such neighbor to the disputed land named Hajji and the Petitioner therefore has no valid claim of ownership of the disputed property. DW1 maintained his evidence during cross examination that the disputed property was obtained before getting married to the Petitioner and that the Petitioner made no financial contribution to the developments thereon.

DW2 Hajji Hussein Luyirika testified that he first met the Petitioner in the year 2006 in Reading -London. That while in the United Kingdom, he personally used to drive the Respondent to the place where he sent money to Lumunye Ronald through MoneyGram. That the Respondent stayed together with the Petitioner in London since the year 2006, she was not working at initially but he (DW2) later got her papers in his sister's names to work in the home of the elderly.

## Decision of court

I have carefully considered the pleadings and the evidence adduced by the parties and the submissions of counsel in support of their respective cases.

Counsel for the Petitioner raised an objection that the Respondent's witness statements were filed out of time without leave of court and as such, they were admitted in evidence in error. This argument by Counsel for the Petitioner is absurd to say the least. At the point of their admission, both Counsel were present in court and Counsel for the Respondent raised no objection but went ahead to cross examine on the same having been allowed sufficient time to study the contents together with his client. I therefore can see no injustice occasioned where Counsel was accorded the opportunity sufficient time to study the witness statements and to cross examine the authors of the said witness statements. Therefore, I find no merit in the aforementioned objection and it is hereby overruled.

I now turn to resolve the only issue which is; whether property comprised in Mengo- Busiro Block 383 Plot 2433 at Kitende is jointly owned by the Petitioner and Respondent.

## Guidinq orinciples

First, the burden of proof and standard of proof. ln law, a fact is said to be proved when Court is satisfied as to its truth. The general rule is that the burden of proof lies on the party who asserts the affrrmative of the rssue or question in dispute. When such a person adduces evidence suffcient to raise a presumption that what he cserts is true, he is said to shift the burden of proof: that is, his allegation is presumed to be true, unless his opponent adduces evidence to rebut the presumption. The standard of proof is on a balance of probabilities with a few exceptions.

Relating the above principles to this case, the Petitioner alleged that she sent money out of her personal eamings to a one Lumunye Ronald for the purchase of the disputed property comprised in Busiro Block 383 Plot 2433 land at Kitende and that she made monetary contributions towards the developments thereon and that the Respondent's registration on the certificate of tifle was simply in fulfilment of the customary Kiganda culture that a man ought to be registered on the certificate of title of the matrimonial home. The burden therefore rests on her to prove lhese claims.

Manifestly, neither the Petitioner nor the Respondent adduced any documentary evidence to support the claim that they (whether jointly or individually) sent rnoney to PW3 either for the purchase of the disputed property or to put up the developments thereon. Reliance is therefore largely on the oral testimony of the witnesses preented to court.

According to section 59 of Ihe Eviderce Act, oral evidence must in all cases whatever, be direct. That is to say, it must be based on direct personal knowledge or experience. Testimony based on what a witness has heard from another person rather than on direct personal knowledge or experience is refened to as hearsay and therefore inadmissible with a few exceptions.

The evidence on record points to the fact that the disputed property comprised in Busiro Block 383 Plot 2433 land at Kitende is registered in the names of the Respondent having been registered thereon on 27th September 2005 vide lnskument Number K1A28130. ln the absence of impeaching factors, under Section 59 Registration of Titles Act possession of a certificate of title by a registered person is ordinarily conclusive evidence of ownership of the land described therein As at the date of the Respondent's registration on the cerlificate of

tifle in 2005, it is uncontested that the Petitioner and Respondent were not yet married. Their maniage certificate indicates that they were united in a civil maniage at the Uganda Registry of Marriages on th May 2011.

The petitione/s case is premised on the claim that she made monetary contribution towards the purchase and development of the disputed property This is a question of fact. The petitioner testified that she travelled to the United Kingdom in 2004 on a visito/s visa but the said visito/s visa did not allow her to get employment in the United Kingdom but she started working 'underground' using somebody else's papers from late 2004 to 2010 The Petitioner did not attach any of her travel documents to assist this court determine with certainty the date of her travel. She also testified that she sent the money for purchase of the disputed property through Western Union but did not attach any receipts to support the assertion neither did PW3 who is the supposed recipient. Her only explanation when asked why she did not attach the evidence was that she left the documenB in England. PW1 while testifying, did not know at what stage the construction of the residential house on the disputed land is, she had no definitive direction to the property, she did not know the LC1 Chairperson of the area where the property is located, she had no knowledge of how big or the number of rooms in the residential house and she was glaringly unaware of who the neighbors to the disputed property are. Put differently, the Petitioner has no clear definition of what she claims to own and her evidence was clearly speculative.

On the other hand, DW1 testified that in the year 2005, PW3 with whom they had previously worked at Kiseka market, informed him that that he had found some land on sale around Bwebajja gardens. lt is then that PW3 linked him with the seller a one Ssekitoleko Gerald and on 11rh June 2005 PW3 entered the purchase transaction on his behalf. This was conoborated by the evidence of PW3 who testified trat by sale agreement dated 1'lth June 2005 he was representing DW1 as purchaser when he signed on his behalf. DW2 also conoborated the testimony of DW1 that the Petitioner stayed with the Respondent in London since the year 2006 long after the disputed land had been purchased. DW2 who was firm in his testimonv and by his firm demeanor further testified that the Petitioner did not work initially but started working in 2007 after he had personally secured her his siste/s papers to start working in the home of the elderly under a false ldentity. PW1 herself admitted to having worked under the said false identity

Having compared the testimonies of the Petitione/s witnesses and that of the Respondent's witnesses, I am inclined to find the Respondent's evidence more believable.

The only questions that then linger are; whether property solely acquired before marriage automatically becomes jointly owned after marriage and what amounts to contribution if any, as to entitle the Petitioner to a share in the disputed property?

Courts have now recognize not only a spouse's direct or indirect monetary contribution but also a spouse's non-monetary contributions, which enables the other spouse to either acquire or develop the property in question. See; Kivuitu v. Kvuitu, [1990 - 199941 E. A. 270 and Kagga v. Kagga, (High Court Divorce Cause ,Yo. 11 of 2005) cited with approval by the Uganda Supreme Court in the case of Rwabinumi v Bahimbisomwe (Civil Appeal 10 of 2009)

The only distinction between the above cases and the cunent case however is that in both cases above, the acquisition ofthe properties in question occurred during the subsistence of the marriage, the claimants proved contribution (either monetary or non-monetary) and there was a clear intention of owning the properties jointly in the case of Kivuitu (supra). ln Kagga (supra), Mwangusya, J. observed that;

"Our courts have estabfished a principle which recognizes each spouse's contribution to acquisition of property and this contribution may be direct, where the contribution is monetary or indirect where a spouse offers domestic servrces .... When distributing the property of a divorced couple, it is immaterial that one of the spouses was not as financially endowed as the other as fhis case clearly showed that while the first respondent was the linancial muscle behind all the wealth they acquired, the contribution of the petitioner ts no /ess important than that made by the respondent."

The proposition that property individually acquired before marriage automatically qualifies as matrimonial property was found untenable in the Supreme Court decision of Rwabinumi (supra). The Leamed Justices of the Supreme Court had this to say;

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"So, white I agree that Article 31(1) (b) of the Uganda Constitution (1995) guarantees equality in treatment of either the wife or the husband at divorce, it does not, in my opinion, require that all property either individually or iointly acquired before or during the subsistence of a marriage should in all cases, be shared equatty upon divorce. lt was therefore efioneous for the coutt of Appeal to hotd that alt individualty held propefi of persons who contnct religious marriages under the Marriage Act becomes matrimonial proper\$ upon marriage and joint propefi of the couple and that it should be shared equally on divorce by viftue of their marriage vows and Afticle 31(1) of the constitution of uganda (1ees)

The Constitution of Uganda (1995), while recognizing the rightto equali\$ of men and women in marriage and at its dissolution, also reseryed the constitutional right of individuals, be they married or not, to own property either individually or in association with others under Article 26(1) of the constitution of uganda (1995). This means that, even in the context of marriage, the right to own propefi individually is preserved by our Constitution as is the right of an individual to own property in assocnfion with others, who may include a spouse, children,slblings or even business partners."

ln all cases of such nature, the Court's holding should not be inespective of whether the claimant proves that he or she contributed to the acquisition of the said property either through direct monetary or non-monetary contribution towards payment of the purchase price or its development or indirectly through payment of other household bills and other family requirements including child care and maintenance and growing food for feeding the family. ln this case, the property in question was solely purchased and registered in the names of the Respondent, the Petitioner has not demonstrated any form of contribution whether monetary or othenalse towards its acquisition, development or maintenance. ln fact, she has no definitive knowledge of its description and location. There is no intention established from the evrdence on record that the parties had a common intention to own property comprised in Mengo- Busiro Block 383 Plot 2433 al Kitende jointly. The evidence of the Respondent which I find more believable is that he bought the disputed property before he met the petitioner.

ln the result, I find in favor of the Respondent and make the following ordens;

- a) The Respondent is the sole owner of property comprised in Busiro Block 383 Plot 2433 land at Kitende - b) The terms contained in the consent settlement between the Petitioner and Respondent, endorsed by this court dated 4h November 2022 slay in force. - c) Since both parties consented to majority of the issues originally framed for this court's determination, let each pafl bear its own costs.

Dated at Kampala this + day of /it 2023 Flav ian Zeija (PhD) tt

PRINCIPLE JUDGE