THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

CIVIL SUIT NO. 166 OF 1992

TEOPISTA MUGENZE ................................................................................. PLAINTIFF

VERSUS

PASCAL BYRON MUGENZE}

M/S KYAMPENGERE COOPERATIVE SOCIETY}

CHIEF REGISTRAR OF TITLES} ............................................................ DEFENDANTS

BEFORE: Hon. Lady Justice Monica K. Mugenyi

Case summary

Brief facts;

The plaintiff was the lawful wife of the first defendant.  Following their separation in 1992 the first defendant sold their matrimonial home to the second defendant, which entity subsequently sold the same property to a one Edrisi Nsubuga, the registered proprietor thereof.  The plaintiff instituted the present suit against the first and second defendants claiming an interest in numerous properties acquired during the subsistence of the marriage by virtue of her contribution to its purchase, as well as seeking cancellation of its present proprietorship or, in the alternative, recompense for her stake therein.  The suit initially proceeded ex parte against both defendants but the resultant judgment dated 2^nd April 2004 was subsequently set aside by the first defendant, hence the present proceedings. 

Issues

1. Whether the suit properties were jointly acquired by the plaintiff and first defendant, thereby becoming matrimonial property.
2. Whether the plaintiff, as wife to the first defendant, is entitled to proceeds or a share in the suit/ matrimonial property.
3. Whether the removal of the caveats and the resultant sale of Buddu Block 278 plots 14, 16 and 17 to the second defendant was lawful.
4. Remedies available to the parties.

Land law- joint tenancy or ownership in common of a matrimonial property - whether a spouse who does not pull her resources to purchase the property can claim joint ownership or tenancy in common.

Land – ownership by spouse- whether a wife can claim beneficial interest in the land acquired solely by the husband during the subsistence of the marriage.

Trust relationship – whether a husband holds the matrimonial property in trust for a wife and the children.

Matrimonial property – whether spouses to an existing marriage are entitled to equal ownership of property.

Held

1. It is quite apparent from the evidence that the suit property was solely acquired by the first defendant, while the plaintiff played a supportive role.  This is borne out by the sale agreements and land titles in respect thereof.  The sale agreements establish that the first defendant acquired the property at Kibubbu individually, while the plaintiff simply witnessed them.  In the same vein, the land titles to the said properties do reflect the first defendant as having been the sole proprietor thereof prior to their subsequent sale.  I do, therefore, find that the suit properties were not jointly acquired by the plaintiff and first defendant.  I would add that, similarly, this court finds no evidence whatsoever of joint ownership of the said properties by the plaintiff and first defendant as tenants in common or at all.
2. In the absence of supportive evidence such as documents to shed more light on the authenticity of her monetary contribution, the veracity of the plaintiff’s evidence remained in issue and the said evidence fell short on cogency. In my judgment, it does not satisfactorily discharge the onus of proof on her in this matter or tilt the balance of probabilities in her favour. I, therefore, find that the plaintiff has not proven her purported monetary contribution to the required standard.
3. An equitable interest could also be deduced from written instruments such as wills or applicable trust deeds.  It would appear, then, that an equitable interest in land is rooted in parties’ written intention to create such an interest, the sum effect of which is to pass legal title in land.  In the instant case no such instrument was furnished before this court.  Consequently, there is no proof whatsoever on record that the plaintiff had an equitable interest in the suit property.  I, therefore, find that the plaintiff is not a beneficial owner to the suit premises.
4. It is trite law that for a trust to exist 3 certainties must be present: first, certainty of intention (there must be intention to create a trust); secondly, certainty of subject matter (the assets constituting the trust fund must be readily determinable), and thirdly, certainty of the objects (the people to whom the trustees are to owe a duty must be readily determinable.
5. In the matter before this court, no evidence was adduced as to any written instrument or statement that portrays an intention to create a trust; neither were the properties that would form the subject of such trust demarcated, or the beneficiaries thereof stated.  The first defendant was not entrusted with the suit properties by another person or entity, but rather, the evidence indicates that he purchased them.  It does follow that the first defendant did not hold the suit property in trust for the plaintiff or their children; the plaintiff was neither a beneficiary of the suit property, nor was she vested with a beneficial interest therein.  I therefore find that the plaintiff is not entitled to a share of or proceeds from the sale of any of the suit properties.
6. Thus the present plaintiff and first defendant would each have the right to own property (individually or jointly) before or during the subsistence of their marriage.  However, they are not necessarily entitled as of right to own all property acquired in their marriage jointly and equally during the subsistence of the marriage, as this court understood the plaintiff’s claim to entail.
7. In the present case, section 39(1) (a) of the Land Act might have been applicable to the matrimonial home but for 2 issues.  First, the provision for spousal consent was not in force at the time the matrimonial home was sold therefore there was, at the time, no statutory duty upon the first defendant to seek the plaintiff’s consent prior to the sale thereof.  Secondly, the Land Act does not contain any provision for it to apply retrospectively.  In the result, I find that the plaintiff is not entitled to a share of the suit properties or the proceeds from the sale thereof. 

In the final result, judgment was entered for the plaintiff against the second defendant with the following orders:

1. A declaration is hereby granted that the registration of the land comprised in Block 278 plot 14 and 16 at Kibubbu, Masaka by the second defendant was procured by fraud.
2. Exemplary damages in the sum of Ushs. 50,000,000/=  awarded against the second defendant to the plaintiff, payable at 8% interest per annum from the date hereof until payment in full.
3. General damages in the sums of Ushs. 20,000,000/=  awarded to the plaintiff as against the 2^nd defendant, payable at 8% interest per annum from the date hereof until payment in full.

65% costs of the suit  awarded to the first defendant as against the plaintiff, and 35% costs awarded to the plaintiff as against the second defendant

REFERENCES

Black’s law dictionary defines a beneficial owner as ‘one recognised in equity as the owner of something because use and title belong to that person, even though legal title may belong to someone else.’

In the case of Lysaght vs. Edwards (1876) 2 Ch D 499 at 506 the creation of an equitable interest that passed beneficial ownership from a vendor to a purchaser was explained as follows:

“The moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold, and the beneficial ownership passes to the purchaser, the vendor having a right to the purchase money, a charge or lien on the estate for the security of the purchase money, and a right to retain possession of the estate until the purchase money is paid, in the absence of express contract as to the time of delivery of possession.” (emphasis mine)

Oxford dictionary of law, Oxford University Press, 2009, 7^th Edition, p.58.  Conversely, a ‘beneficiary’ in the present context is defined as a person entitled to benefit from a trust or the holder of a beneficial interest in property of which a trustee holds the legal interest.

Black’s law dictionary defines a ‘beneficiary’ as ‘a person for whose benefit property is held in trust.’ 

Knight vs. Knight (1840) 49 ER 58.  In that case Lord Langdale MR held:

“As a general rule, it has been laid down, that when property is given absolutely to any person, and the same person is, by the giver who has power to command, recommended or entreated or wished, to dispose of that property in favour of another, the recommendation, entreaty, or wish shall be held to create a trust: first, if the words are so used, that upon the whole, they ought to be construed as imperative; secondly, if the subject of the recommendation or wish be certain; and, thirdly, if the objects or persons intended to have the benefit of the recommendation or wish be also certain.”

Article 31(1) (b) of the Constitution provides;

“A man and woman are entitled to marry only if they are each at the age of 18 years and above and are entitled at that age to equal rights at and in marriage, during marriage, and at its dissolution

In Julius Rwabinumi vs. Hope Bahimbisomwe (supra) Kisaakye JSC espoused the provisions of article 31 as follows:

“The article prohibits the discrimination in treatment which the Constitutional Court struck down in the Uganda Association of Women Lawyers vs. Attorney General, Constitutional Petition No.2 of 2003, when it declared as unconstitutional several provisions in the Divorce Act relating to grounds of divorce, damages etc that treated men and women differently. Article 31(1)(b) of the Uganda Constitution (1995) guarantees equality in treatment of either the wife or the husband at divorce ... ” 

Order 9 rule 27 CPR

“Except that where the decree is of such a nature that it cannot be set aside as against such a defendant only, it may be set aside as against all or any of the other defendants also.”