Namukasa and 4 Others v Haji Mulindwa(suing through Buwambakari sengabi,Nabukenya and Ssekabira) (Civil Appeal No. 16 of 2020) [2021] UGHCCD 213 (3 December 2021)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MASAKA

## CIVIL APPEAL NO. 16 OF 2020

# ARISING FROM CIVIL SUIT NO 051 OF 2018

# ARISING FROM LAND SUIT NO. 055 OF 2009

- 1. JALIA NAMUKASA - 2. FAZIL MATOVU - 3. MUNIRU SENTALO - 4. BULUHANI KASIITA - 5. HAWA NALUBEGA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANTS

## VERSUS

HAJJI ABDU MULINDWA (*Suing through Buwambakari Sengabi, Zaina Nabukenya and Ssekabira Bashiru)* :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

### *Before*; *Hon*. *Justice Victoria Nakintu Nkwanga Katamba*

### **JUDGMENT**

The Respondent/Plaintiff instituted Civil Suit No 51 of 2018 against the Appellants/Defendants seeking among others reliefs a declaration that he is the sole proprietor of the land comprised in Kooki Block 209 Plot 4 land at Kikonge. The Respondent`s claim is that he married the 1st Appellant in 1976 and together they begot 13 children including the 2nd, 3rd, 4th, 5th 6 th and 7 th Appellants. He allocated bibanja for all his sons on the same piece of land. In March 2009, the Appellants came onto his land and threatened to injure him if he dared to chase the 1st Appellant from the land. They planted crops on the land and evicted bonafide tenants therefrom.

In their joint Written Statement of Defence, the Appellants denied the claim and contend that the suit land was bought jointly by the Respondent and the 1st Appellant. The Respondent constructed a house for the 1st Appellants and her children on the land and further gave the children bibanja when they grew up, leaving no undistributed part. The Respondent started selling the Appellants bibanja in 1999 and chased the 1st Appellant from the suit land in 2000. The Appellants claim that the land is family land and the actions of selling the same have deprived them of quiet possession.

The Respondent's evidence was that he owns the suit land and on that land, he gave bibanja to his children and constructed a house for the 1st Appellant which she is occupying. He stated that the Appellants are trespassing on the portion which he left for himself and that they cut down his trees and cultivated on 6 acres of his land. His evidence is that he purchased the land solely and the Appellants have prevented him from transferring his portion of land.

The trial Magistrate in his judgment relied on the case of *Muwanga Vs Kintu Divorce Appeal No. 135 of 1997* which defined matrimonial property, and found that part of the suit land comprised in Kooki Block 209 Plot 4 which was neither allocated to the sons nor occupied by the tenants is matrimonial property and as such family land. The trial Magistrate further found that whereas the land is family land, the sole ownership is with the Plaintiff and any use of the said land should be in the manner that does not interfere with the owner's possession and should be authorized by the Plaintiff.

The trial Magistrate further held that the security of occupancy afforded to spouses under Section 38 A of the Land Act as amended does not confer ownership and therefore the acts of the defendants of taking over possession of the land to the exclusion of the Plaintiff amount to trespass. Court found that the defendants were trespassers on the suit land and granted the Plaintiff's reliefs as sought in the Plaint.

Bing dissatisfied with the decision of the trial Magistrate, the Appellants filed this appeal on the following ground;

1. The learned trial Magistrate erred in law and fact when he failed to properly evaluate the evidence before him thereby arriving at an erroneous decision.

The parties filed written submissions which I will consider in my determination of the appeal.

This being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion *(see in Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000; [2004] KALR 236).* The approach to be followed by a first appellate court is that it ought to subject the evidence adduced before the trial court to a fresh and exhaustive scrutiny so that it weighs the conflicting evidence and draws its own conclusions. It is not enough for the appellate court to merely scrutinize the evidence to see if there was some evidence to support the findings and conclusions of the lower court, it must make its own findings and conclusions. Only then can it decide whether the findings of the trial court should be supported. In so doing the appellate court must make allowance for the fact that the trial court had the advantage of hearing and seeing the witnesses. *Yosamu Kawule v. Erusania Kalule [1977] HCB 135, Sitefano Baraba v. Haji Edirisa Kimuli [1977] HCB 137, Ugachick Poultry Breeders Ltd. v. Tadjin Kara C. A., Civil Appeal No. 2 0f 1997.*

*Order 43 Rules 1 & 2 of the Civil Procedure Rules* provides the requirement for how grounds of appeal should be framed. The grounds of appeal should be concise and should clearly point to the point of objection to the decision appeal against. Needless to say, the grounds should not be framed in such a way that the court on appeal cannot on the face of the memorandum establish what parts of the decision are being challenged. Although this court on the first appeal has a duty to scrutinize the entire evidence and reach its own conclusion, a ground as general as what is set out is the instant appeal offends the rule in Order 43 of the Civil Procedure Rules.

The grounds of appeal should not appear on the face of the memorandum of appeal to be a fishing expedition but rather should clearly set out errors upon which the appeal is based and on what points the lower court`s decision is being challenged.

The memorandum of appeal was not drafted by an advocate and for that reason, I will proceed to entertain this appeal.

I have carefully perused the record of the lower court and it is apparent that the Respondent distributed part of the suit land amongst his children and the 1st Appellant was also given part of the said land.

In his evidence, the Respondent stated that he gave all his sons bibanja and this was not disputed by the Appellants. The first Appellant DW1, Jalia Namukasa stated in her evidence that the sons were given bibanja on the suit land and went to state what bibanja were given to them and their locations.

The Respondent was registered onto the certificate of title in 1983. He stated in his evidence that he did not get money from the 1st Appellant to purchase the said land although the 1st Appellant stated that they bought the land with wealth accumulated together.

In the case of *Rwabinumi Vs. Bahimbisomwe Civil Appeal No. 10 of 2009 citing with approval the authority of Kagga Vs Kagga (High Court Divorce Cause No.11/05),* the Supreme Court did recognize the unmonetized contribution of wife where Justice Mwangusya observed that, "Our courts have established 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 services…..when distributing the property of a divorced couple, it is immaterial that one of the spouses was not financially endowed as the other as this case clearly showed that while the first respondent was the financial muscle behind all the wealth they acquired, the contribution of the petitioner is no less important than that made by the respondent."

From the foregoing, it is imperative to consider whether the suit land herein is matrimonial property. The Appellant claims that the Respondent bought the land after they had accumulated money and that he bought it for the 1st Appellant and her children.

I find that the circumstances of this case have to be carefully considered. This is because the Respondent has other children and other wives whom he had before marrying the 1st Appellant. Therefore, to hold that the land is matrimonial property because it was acquired after the celebration of the marriage might be prejudicial to the other parties involved in the family to wit other wives and children of the Respondent.

The evidence of the Respondent is that he purchased the land, constructed a home for the 1 st Appellant and when the 1st Appellant's children became of age; he gave them bibanja on the suit land. This evidence was not disputed by the Appellants as I have already observed.

PW2 Mugumya Noor confirmed that the Respondent distributed his land amongst his children and the 1st Appellant was also given a home where she is currently residing. This evidence was further confirmed by PW3 Kayiga Deo who stated that he witnessed the distribution as a neighbor.

The 1st Appellant confirmed the evidence and also stated that there were portion left undistributed which were used for cultivation. DW2 Fazil Matovu stated in his evidence that the Respondent gave the sons bibanja and retained a kibanja that he didn't distribute. He stated that the kibanja that was left undistributed was being used by the 1 st Appellant and the Respondent.

The evidence on the record is sufficient to establish that the suit land forms part of land owned by the Respondent and that the Respondent gave part of the land to the 2nd, 3rd ,4th and 5 th Appellants, gave a portion of the land to the 1st Appellant as her matrimonial home and left a portion that was undistributed which was being used as family land.

I find that the evidence on the record is sufficient to prove that the Appellants in their different capacities as wife and children received land from the Respondent respectively as matrimonial home and land as gifts inter vivos. The portion of land which was given to the 1 st Appellant as her matrimonial home is what constitutes matrimonial property since it is evident that both parties agreed to have it as such.

As I have already observed that in such a case where the husband has other wives and children, the definition of matrimonial property cannot be invoked to the detriment of other third parties forming part of the family who derive benefit from the estate.

The remaining portion of land which was undistributed forms part of family land and in accordance with *Section 39 of the Land Act* as amended all dealings subject to family land must be conducted with consent of both parties.

The trial Magistrate upon finding that the land in dispute was family land went ahead to hold that the 1 st Appellant did not have ownership of the same nor could she deprive the Respondent from owning and dealing in the land. The trial Magistrate founded his reasoning on *Section 38A of the Land Act* as amended which gives spouses security of occupancy.

*Section 38A* gives not just security of occupancy in terms of rights to occupy the land but also the rights to live, use, derive sustenance from the land and give or withhold consent for any transactions pertaining to the family land.

I therefore find that the trial Magistrate was at error in finding that the security of occupancy guaranteed under Section 38A did not give the 1st Appellant rights to take possession.

However, the trial Magistrate rightly held that the 1st Appellant cannot use the suit land that forms family land to the exclusion of the Respondent. This is right because the family land is property of both spouses and in this case where the children were given their own bibanja, the family land in dispute is jointly owned by the Respondent and the 1st Appellant and neither party can use the land to the exclusion of the other.

The trial Magistrate found that the Appellants were trespassing and stated that the 1st Appellant had no right to use the land to the exclusion of the Respondent. The rest of the Appellants were evicted from the land save for the 1st Appellant since the land is family land. I agree with the trial Magistrate on this finding.

It is the law of evidence that the party who bears the burden must produce evidence to satisfy it as per *Section 101 of the Evidence Act*. The Appellants confirmed the Respondent's claim that he bought the suit land and later distributed it amongst his children (some of the Appellants). The evidence is sufficient to prove the Respondent's case and the trial Magistrate was right in finding that the land that was not distributed is family land to be used jointly by the 1st Appellant and the Respondent which is why the 1st Appellant was not evicted from the suit land.

I therefore find that the trial Magistrate properly evaluated the evidence on the record and the decision of the lower court did not occasion any miscarriage of justice as against the Appellants.

In the result, the whole judgment and orders of the lower court are hereby upheld.

The appeal is dismissed. No order is made as to costs.

I so order.

Dated at Masaka this 3rd day of December, 2021

**Signed;**

### **Victoria Nakintu Nkwanga Katamba**

**Judge**