Nyiramugisha v Mbonimpa (Miscellaneous Application 63 of 2022) [2023] UGHC 450 (25 February 2023)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT RUKUNGIRI MISC. APPLN NO.063/2022 (ARISING FROM HCCS NO.22/2021)

DEPUTY REGISTRAR<br>HIGH COURT TRUE COPY **RUKUNGIRI CERTIF**

## NYIRAMUGISHA OLIVE::::::::::::::::::::::::::::::::::::

VERSUS

# MBONIMPA INNOCENT::::::::::::::::::::::::::::::::::::

### BEFORE: HON. JUSTICE TOM CHEMUTAI

**RULING**

The background of this application are that the Respondent/plaintiff in the instant application filed for dissolution of his marriage with the applicant/plaintiff in the instant application and distribution of property among other remedies vide Divorce Cause No.001/2016 at the High Court of Uganda at Kabale which petition was opposed by the applicant herein. Hon. Justice Moses Kazibwe Kawumi (the presiding judge then) while dismissing the petition without orders as to costs upon the finding that there was no valid customary marriage to be dissolved, advised the parties to file a separate suit for the resolution of asset sharing hence HCCS No.22/2021 and the instant Misc. Appln. No.063/2022.

When the matter came up for hearing the applicant through her counsel moved Court through motion seeking for orders that;

- 1. The defendant/respondent's written statement of defence in respect of and in as far as it derives joint acquisition and joint ownership of the properties be dismissed; - 2. The defendant/respondent's written statement of defence in respect of and in as far as it downs joint acquisition of a loan of shs.120,000,000 from MS Centenary Bank be dismissed; - 3. The defendant's/respondent's defence in as far as it denies/opposes the plaintiff/applicant's bid to have the properties shared be dismissed; - 4. The counterclaim be dismissed - Judgment on admission in respect of: $5$ - a) Selling Tata lorry Registration No UAL 182N; - b) Getting monetary compensation from Uganda National Roads Authority (UNRA) locality property affected by the road; - c) That the defendant got a loan of Ug.shs 120,000,000 and used it; - d) That the defendant is in sole possession and management of the properties; Be entered against the defendant. - 6. A preliminary decree to account for: - The status of hardware shop and the proceeds therefrom; $i$ - The proceeds from Tata Lorry; $ii)$ - Money got from Uganda National Roads Authority; iii) - The loan of shs.120,000,000 got from Centenary Bank; $iv)$ - Rental collections from the properties $V$

Costs of the counterclaim and the instant application. 7.

The application is supported by the affidavit of the applicant and premised on the following grounds:

- The defendant/respondent be estopped from claiming sole acquisition and sole ownership of the $\mathbf{1}$ suit properties: - 2. The acquisition of the properties and their ownership was adjudicated upon/settled in Divorce Cause No.001/2016 and as such resjudicata; - 3. The acquisition of the loan having been pleaded/admitted in Divorce Cause No.001/2016 as having been jointly acquired by the plaintiff/applicant and the defendant/respondent is estopped from claiming sole acquisition and sole payment thereof; - 4. The defendant admits in defence of having sold the Tata Lorry and further admits having got money from Uganda National Roads Authority in compensation and admits having got the loan of shs.120,000,000; - The jointly owned properties having been or they being in sole possession and management of the $5$ defendant/respondent, he has a duty to account for them and the proceeds therefrom; - 6. The question of sharing the properties was settled in Divorce Cause No.001/2016; - 7. The impugned defence (s) and the counterclaim are frivolous, vexatious, unmaintainable and were filed in abuse of the court process; and - It is in the interest of justice that the orders sought be granted. 8

The applicant Nyiramugisha Oliva in her affidavit avers and contends among others that:

- Since 1991 she met with the defendant where they lived in marriage-like relationship and begot 04 children; - Shortly thereafter, herself and the defendant pooled money and set up a small retail shop which grew into a multi-million hardware shop; - They jointly run the business hoping to get married; - From the cumulative profits from the said business they acquired various properties listed in the main case were bought and at all material times they jointly managed the same and derived sustenance and providence for the children; - As of 2016 while herself and the defendant and the children were living together at their house $\overline{\mathbb{C} \theta}$ situated at Rukare Road, Muyenga village, Kihihi town council comprised in block 47, plot 42 they agreed to acquire a loan at Centenary Bank to acquire a lorry to boost the business and doing business of transportation by mortgaging the said house and repay the loan from the business and income from other properties especially rent: - The said house though bought from the proceeds from the business was registered in the $\tilde{\ell}^{(1)}$ defendant's name, consequent to which the defendant acquired loan of shs.120,000,000 and mortgaged the said property; - The defendant sometime between late 2014 and 2015 received the said loan and concealed it from her putting it into his personal use while servicing the said loan using the income coming from the business/properties:


In 2016 when she discovered the same and demanded for answers, in which disagreements arosc and the defendant abandoned her and the children and married a wife, set up a home and kicked her out of the hardware shop and management of the other properties as he continued to service $\bigcirc$

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The business from which the money that was used to buy all the properties was and is a partnership comprised of herself and the defendant and all the properties were owned and are owned by herself and the defendant jointly;

The defendant believing that they were married petitioned for divorce in Divorce cause $\Omega$ No.001/2016 and sought for equal sharing of the properties and averring that they were jointly acquired. She referred to annexture "A &B" being the petition and witness statement of the

She opposed the petition for divorce but conceded that the properties were jointly acquired but $\overline{C}$ opposed distribution of the same at that stage since the Respondent/defendant had to render

o The properties the defendant sought to share in Divorce cause No.001/2016 are the same

she was advised by her lawyers that ownership of properties were settled in Divorce Cause $\bigcirc$ No.001/2016 as the properties were jointly owned, the defendant having pleaded and testified in Divorce Cause No.001/2016 that the properties were jointly acquired is estopped from ploading otherwise and the defendant's written statement of defence and counterclaim raising issue of

• The defendant in paragraph 10 & 11 of his defence claims sole acquisition of loan of shs.120,000,000 and sole repayment of the same yet in divorce cause no.001/2016 he admitted in paragraphs 13 &14 of have jointly acquired the said loan with herself;

o The defendant does not deny sole management of other properties including collection of rend therefrom hence he should be ordered to account and judgment on admission be entered.

The Respondent Mbonimpa Innocent opposed the application in his affidavit in reply as thus;

- That indeed they have been in a marriage like relation with the applicant since 1991 and begot four - That at the time the applicant joined him he already had a retail shop business which grew into $\bullet$ hardware shop without any monetary contribution towards the said business; - That the applicant did not take part in management of his business as co-partner since she was confined to domestic work and she did not inject any money in the business at all; - That as the business grew he acquired the properties listed in the applicant's plaint and no - provided for sustenance of the applicant and the children like any ordinary family; That while living together with the applicant and the children he purchased several lands including - land comprised in block 47 plot 42 and the applicant was not party to the transaction; That he personally acquired a loan at Centenary Bank and used the proceeds to purchase a long $\bigcirc$ to boost the hardware business and upon grant of the loan he informed the applicant of the same

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$\mathcal{C}$

That sometime in 2016 he discovered that the applicant had stolen shs.50, 000,000 from him and used the same to purchase her private property including a plot in Kampala, about 03 acres of coffee shamba at Nyabutumbi and 02 acres of trees at Nyamwegabira;

- That due to the mistrust and related incidences the applicant connived with the children and evicted him from their residential house; - That it is the applicant's misconception that he filed the divorce cause for equal sharing of properties whereas not as he only intended to give the applicant what she deserved as a wife and not as a partner in business; - That in the absence of any commercial partnership between the applicant and himself she has no legal interest in his personal property and the applicant does not deserve court order compelling him to account for his personal business; - That issue of ownership was not settled in Divorce Cause No.001/2016 and with guidance of his lawyers he believes that he is not barred from raising the issue of ownership in the written statement of defence and counterclaim and he believes the written statement of defence and counter claim disclose a cause (s) of action (s) and the same should be entertained by Court; - That the compensation he got from UNRA and proceeds of sale of the lorry arise from his personal $\bigoplus$ property and as such his alone; and - That the applicant is not entitled to judgment on a contested property before court hears evidence of both parties on how and when it was acquired.

During the hearing of the application the applicant was represented by Counsel Byarugaba while the respondent was represented by Counsel Nabimanya Erasmus and they both submitted in Court orally which submissions I have considered herein. Counsel for the applicant has also filed on record some authorities on judgment on admission, partnership and estoppel which court has also considered in making

In addressing this matter Court shall be guided by the following issues;

- 1. Whether the issue of acquisition of the properties and their ownership was adjudicated upon in Divorce Cause No.001/2016 and as such resjudicata? - 2. Whether the averments in the respondent's petition in Divorce Cause No.001/2016 amounted to an admission (s) so as to warrant judgment on admission to be entered against him? - 3. What remedies are available to the parties?

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Issue No.1: Whether the issue of acquisition of the properties and their ownership was adjudicated upon in Divorce Cause No.001/2016 and as such resjudicata?

The doctrine of resjudicata originates from two latin maxims "Interest reipublicae ut sit finis litium" write means "it is in the interest of the State there should be an end to a litigation"; and "Res judicata pro version". occipitur" which means judicially accepted as correct.

Section 7 of the Civil Procedure Act, Cap.71 is to the effect that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former substantially in issue in a former substantially in issue in a former substantially in issue in a former substantially


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between the same parties, or between parties under whom they or any of them claim, litigating under the ' same title, in a Court competent to try such.

The doctrine of resjudicata applies to debar subsequent litigation where four elements are met which

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- 1. the prior decision was rendered by a court of competent jurisdiction; 2. there was a final judgment on the merits; - 3. the parties were identical in both suits; and - 4. the prior and present causes of action are the same.

In short there must be finality of decisions by a Court of competent jurisdiction on its merit, arising to

similar parties or those deriving authority or interest from them and the cause of action must be the same 'In the instant application and the submission by counsel for the applicant, which averments and

submissions I do not wish to reproduce here, it is the applicant's case that the matters concerning acquisition and ownership of property by herself and the respondent does not arise in Civil suit No 22 of 2021 as the matter was adjudicated upon and settled in Divorce Petition No.001 of 2016 and therefore it is Resjudicata. The respondent in the affidavit in opposition and submission by counsel for the respondent averred and submitted that the respondent is not barred from raising issue of ownership in his written statement of defence and counterclaim on the basis of resjudicata as according to the respondent Court did not settle the issue of ownership in Divorce Petition No.001 of 2016.

Upon perusal of the judgment by Hon. Justice Moses Kazibwe Kawumi dated 11<sup>th</sup> May, 2021 in the 2<sup>nd</sup> last and last paragraph, Court held that whereas there was no marriage between the parties to be dissolved he noted that the Respondent had a right under Article 26 (1) of the Constitution to enforce her right to own property as they could jointly own or acquire separate properties and as such advised that a separate suit

It is very clear from the above judgment that Court did make a finding only in respect of the petition for dissolution of the marriage but made no finding in respect of properties. Therefore in the absence of a finding by Court in the prior suit that is Divorce Petition No.001 of 2016 in respect of ownership of properties the instant Civil Suit No.22 of 2021 is not barred by the doctrine of resjudicata as the issue of property was not considered in the said Divorce Cause as the applicant and her Counsel want Court to

Consequently issue No.1 is answered in the negative to the effect that issue of acquisition of the properties and their ownership was not adjudicated upon in Divorce Cause No.001/2016 and as such the same is not resjudicata.

Issue No.2: Whether the averments in the respondent's petition in Divorce Cause No.001/2016 amounted to an admission (s) so as to warrant judgment on admission to be entered against him?

Section 28 Evidence Act provides that admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereafter contained.



Order 13 Rule 6 of the Civil Procedure Rules, S. I 71-1 enables a party to a suit at any stage to apply for judgment on admission to be entered where there has been admission of facts either on the pleadings or otherwise and court may make such orders as it deems just.

In Central Electrical International Ltd V Eastern Builders & Engineers Ltd HCMA No.176/2008 It with held that an admission should be clear and judgment on admission is granted upon Court's discretion and is not a matter of right. The court further held that if the case involves questions which cannot be conveniently disposed of on a motion under this rule, the court may in the exercise of its discretion,

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- It is clear from the above legal principles which I find binding and persuasive that: - a) admissions should be clear and unequivocal that is not subject to doubt; - b) Court has the discretion and as such not as of right to apply for judgment on admission ; and c) Whether or not to allow it in an application by motion, the test is the convenience in disposing it

The applicant and the submission of her counsel are to the effect that since the respondent in his pention for divorce in Divorce Petition No.001 of 2016 made averments that he and the applicant acquired the properties listed therein, court should base on the same to enter judgment on admission against the respondent. To fortify the said argument the applicant referred to the contents of the witness statements of the respondent annexed to the instant application as annexture "B" and Court has examined the same but

<sup>1</sup> The respondent in his petition for divorce averred and I wish to reproduce the same as follows:

Paragraph6. "... That during the subsistence of the marriage between your petitioner and the respondent, your petitioner and the respondent have acquired the following properties:

- a) Two residential houses, one situated at kanagwe village, and another comprised in plot 42, block 47, folio 2, Rukara road, Muyenga village, Kihihi town council, Kanungu District - b) 4 (four) commercial units (houses) comprised in plot no.164, block 74 at Rutwe; - c) 2 (two) commercial units (houses) situate at Baragina street, Kihihi d) A banana plantation at Mkiyabutobi - e) Land developed with eucalyptus trees at Kihimbe/Kakoko cell, Kanyatorogo - f) Land developed with eucalyptus trees at Kazinga parish, Kihihi town council - g) Bare land Kiyanwe village, Bihombwara parish, Kihihi town council, Kanungu. h) Tata lorry Registration No. UAL3182N - i) RAV 4(Toyota) Reg. No. UAP 059G $i)$ - Business of hardware...."

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Paragraph 7. "... That your petitioner and the respondent lived together and bore the above issues, acquired the above properties within a period of 25 years from 1991 to 2012....."


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The context in which the above petition for distribution of properties in my view as stated by the respondent in his affidavit was under the misapprehension and understanding that the duo were married. To hold the same averments against the respondent to the effect that the same was an admission of acquisition and ownership of the above properties would be wrong. It is trite law that admissions should and must be clear and not subject to doubts.

I find that the issue of acquisition and ownership of the said properties by the applicant and the respondent besides not being adjudicated upon in Divorce Petition No.001 of 2016 is in contention and needs to be proved by the applicant since she claims that she jointly acquired the same with the respondent under a partnership.

However, had it been that the parties were legally married the issue of acquisition and ownership of property for the two who lived over 25 years would have been different since monetary or non-monetary contributions are taken into account by Court. This is not the position in the instant matter as the parties were not married albeit cohabiting for over 25 years with children. In the instant matter the claim in the head suit is based on partnership cannot be conveniently disposed of in the instant application which is through affidavit evidence, hence must be proved and decided upon on its merit and that can only be done through the head suit which gives parties opportunities to prove their allegations through several modes.

Consequently, issue No.2 is answered in the negative.

### Issue no.3 what remedies are available to the parties?

Having resolved issue No.1 & 2 in the negative, the application fails for lack of merit and it is dismissed with costs to the respondent.

The head suit vide C. S No.22/2021 shall proceed to be heard.

It is so ordered.

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Ruling read and delivered at Rukungiri this.................................... $2s^{i}$ both parties and their Counsel.

**HON. JUSTICE TOM CHEMUTAI, JUDGE**


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