This was an appeal against the judgment of Her Worship Basemera Sarah Anne, Chief Magistrate, delivered on July 5, 2022, in Land Civil Suit No. 359 of 2012 at the Makindye Chief Magistrates' Court.
Background
The Appellant sued the 1st Respondent, her husband, for selling the suit property—a lockup shop at Ggaba Market—without her consent, asserting that it was matrimonial property acquired during their marriage. She sought declarations that the sale was unlawful, cancellation of the transaction, and damages.
The 1st Respondent did not appear in court, and the case proceeded ex parte against him. The 2nd Respondent, who purchased the property, denied the Appellant's claims, arguing that the Appellant was aware of and even facilitated the sale, and that the property was a commercial premises not qualifying as matrimonial property.
Issues in the Lower Court
Whether the suit property was the family home.
Whether the sale of the property was null and void.
Remedies available to the parties. Analysis The learned justice began by acknowledging the absence of a uniform legal definition of matrimonial property in Ugandan law. Black's Law Dictionary (9th Edition, 2004) defines "marital property" as property acquired during marriage and subject to division upon dissolution. This aligns with the principle articulated in Julius Rwabinumi v Hope Bahimbisomwe (Civil Appeal No. 10 of 2009), where Hon. Dr. Esther Kisaakye JSC categorized matrimonial property into:
Property chosen as the couple’s home.
Property acquired separately before or after marriage.
Property held in trust for the clan.
Additionally, Section 2 of the Mortgage Act Cap 239 defines a matrimonial home as a building in which a husband and wife, or their children, ordinarily reside. Similarly, Section 40 of the Land Act Cap 227 imposes restrictions on the transfer of family land without spousal consent. This highlights the critical requirement of spousal consent for transactions involving property deemed as matrimonial or family land, as per Regulations 64 and 65 of the Land Regulations, 2004.
Evaluation of Evidence
The trial magistrate, relying on Section 2 of the Mortgage Act and Rwabinumi, concluded that the suit property (a market stall) did not qualify as matrimonial property because:
It was located in a commercial market area.
There was no evidence the Appellant resided there or contributed financially to its purchase.
The property lacked residential amenities, such as a toilet, kitchen, or bathroom.
However, the learned justice has clarified that the law does not mandate specific amenities for a property to qualify as a matrimonial home. Instead, the intention of the parties is paramount, as established in John Tom Kintu Mwanje v Mullious Gafafusa Kintu (Divorce Appeal No. 135 of 1997) and further reinforced by General Comment No. 6 on the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, under Article 7 of the Maputo Protocol. Matrimonial property is broadly defined as any property acquired during marriage, regardless of ownership title.
Locus in Quo and Evidentiary Gaps
The magistrate's findings from the locus in quo visit were contested due to the lack of a formal and detailed record of the proceedings. As noted, judicial evaluation of evidence must meet minimum standards:
A discussion of evidence supporting the claim.
A discussion of evidence against the claim.
A reasoned explanation as to why one set of evidence prevails.
The absence of proper records undermined the trial court's conclusion that the Appellant did not reside in the suit property.
Furthermore, the justice highlighted that oral evidence, though secondary to documentary evidence, is admissible under law and can establish facts when no written documentation exists.
Ownership and Contribution
The justice addressed the claim that the suit property, acquired during the marriage, was a joint asset despite being registered solely in the 1st Respondent's name. The Appellant's involvement in the purchase process, as evidenced by her signature on the purchase agreement as a witness, suggested her implicit contribution.
In this case, the suit property was a market stall which is typically for selling products. The argument that it is not part of the land does not stand. The legal maxims are very clear. I will reproduce them below for emphasis. "Cuius est Solum eius est usquead coelom et ad inferos"' Whoever is the soil, it is theirs all the way to heavens and all the way to hell. The principle is that "Party holders have rights not only on the plot of land itself but also the air above".
"Quic quid plantatur solo solo cedit. Whatever is fixed on the land /soil belongs to the land/ soil. The principle is "whatever is fixed to the land belongs to the land and forms part of it" Common law recognizes the market stall as part of the land on which it stands. It does not matter that the ownership of the land and the stall is different
The Lack of Documentary Evidence Doesn't Affect the Credibility of a Fact.
The court held that nothing in the law indicates that facts cannot be proved by oral evidence. Failure to produce documentary evidence does not prove non-existence of a fact.
The learned justice concluded that the trial court erred in dismissing the suit property as matrimonial property.
It is my finding that there is no legal backing in this above argument whatsoever. The law does not dictate what amounts to a home' whether lack of a kitchen, toilet and bathroom disqualifies a structure from being considered a home by the occupants or not. What is important is the intention of the parties to treat that suit property as a home
The Appellant demonstrated that she resided in the property and contributed to its acquisition.
The absence of residential amenities or its location in a commercial market did not negate its status as matrimonial property, as the intent of the parties and possession were decisive factors.
Court held that
A person can be absent for significant periods and still be ordinarily resident so long as he or she maintains some tie or connection with the place. A person absenting himself or herself temporarily from his or her place of ordinary residence cannot by reason thereof cease to be ordinarily resident thereat
The determination of whether the suit property constitutes the "ordinary residence" of the family and qualifies as matrimonial property Definition of Ordinary Residence Referencing the decision of Larulero v Okene & Another, Civil Appeal No. 29 of 2018, where Justice Mubiru explained that "ordinary residence" involves examining all circumstances of the case. It includes locations where spouses establish a household with a shared intent to reside indefinitely. The duration of residence need not be long (R v Barnet LBC, ex p Shah [1983] 1 All ER 234; R v Secretary of State for Social Security, ex p Swaddling [1990] 2 All ER 965). The Appellant argued that the suit property is their only family asset and residence. The Court found that:
The Appellant has continuously occupied the property since 2003, including after partial payment by the 2nd Respondent.
Ordinary residence does not require luxury or ideal living conditions, as highlighted by the example of street children who consider streets their home.
The property meets the criteria for "family land" under Section 38A(1)(a) of the Land Act, which defines family land to include land serving as a family's "ordinary residence.
The Court emphasized that terminating ordinary residence requires an intent to relocate permanently, which was absent here. The concept entails voluntariness and a settled purpose (Shah [1983] 1 All ER 234). Additionally, the Appellant testified about her use of the property for residence and sustenance by renting out part of it, evidence that was not effectively contested by the 2nd Respondent.
Based on the Appellant's continuous possession and intent to treat the property as the family home, the Court concluded that the suit property constitutes the "ordinary residence" of the Appellant's family and forms part of the marital assets. The learned justice reviewed the trial magistrate's decision, which held that the suit property solely belonged to the 1st Respondent because the Appellant failed to prove her contribution to its purchase. The court found this conclusion to be erroneous based on the following legal principles and evidence:
Contribution to Matrimonial Property
The justice relied on Kaqqa v Kaqqa (HC Divorce Cause No. 11 of 2005), which recognizes both direct (monetary) and indirect (domestic services) contributions to matrimonial property. It emphasized that a spouse's indirect contributions, such as managing household welfare, are equally significant.
In Kivuitu v Kivuitu [1990-1994] EA 270, it was established that indirect contributions entitle a spouse to a share in the couple's property.
Evidence of Contribution
The Appellant presented evidence showing her legal marriage to the 1st Respondent, their joint residence and work in South Africa, and financial transactions (e.g., currency exchanges) tied to the purchase of the property.
The Appellant’s role as a witness on the purchase agreement indicated her involvement in the transaction, supporting the conclusion that the property was jointly acquired.
Hardship from Eviction
The justice cited Nakato v Housing Finance Bank & Anor (HC Civil Appeal 687 of 2021) to outline factors for evaluating hardship caused by eviction, such as the family size, period of occupation, availability of alternative accommodation, and potential health or safety impacts.
The court noted the Appellant's testimony that she and her son had no other residence and relied on the suit property for sustenance. The Respondents failed to prove otherwise, making the Appellant’s eviction disproportionately harsh.
Errors in Handling of Locus Visit
The trial magistrate's handling of the locus visit was criticized for lacking proper documentation or observations to support her findings.
The court held that the trial magistrate erred in law and fact by failing to properly evaluate the evidence and recognize the suit property as matrimonial property. It concluded that transactions involving such property required the Appellant’s consent and declared the property matrimonial. The appeal was thus upheld. This decision is important in clarifying the status of matrimonial property and the concept of ordinary residence in Uganda, particularly in cases where spouses in conflict rush to dispose of shared assets. The Court found that the trial magistrate erred in dismissing the suit property, a market stall at Ggaba Market, as non-matrimonial. The Appellant proved the property was acquired during the marriage, making it matrimonial, regardless of its commercial nature or lack of residential amenities. The Court highlighted that both direct and indirect contributions to property acquisition are valid, as established in Kaqqa v Kaqqa and Kivuitu v Kivuitu. Furthermore, the Appellant’s eviction would cause undue hardship, as confirmed in Nakato v Housing Finance Bank & Anor.
The Court concluded that the property qualified as family land under the Land Act, and the Appellant’s consent was required for its sale. The appeal was upheld, and the trial court’s judgment was overturned. Find the decision below
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