Wakilii

Bakiza v Nafuna Bakiza (Divorce Cause No. 22 of 2011)

High Court · [2015] UGHCFD 26 · 2015 Judgment for Cross Petitioner AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Cross petition for divorce proceedings ex parte after cross respondent failed to appear
Decision
Cross petitioner awarded sole ownership of matrimonial property and cross respondent's name ordered removed from land register

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where a spouse mortgaged the jointly-owned matrimonial home with no intention of repaying the loan and abandoned it to foreclosure, and the other spouse redeemed the property entirely by himself, the defaulting spouse cannot claim interest in the property on the principle that no person may take advantage of their own wrong. The cross petitioner was awarded sole entitlement to the matrimonial home and the cross respondent's name was ordered struck off the land register.

Outcome

Cross petitioner awarded sole ownership of matrimonial property and cross respondent's name ordered removed from land register

Facts

The parties married on 9 July 1988. The cross petitioner purchased land at Plot 5 Semawata Road, Ntinda in February 1987 before the marriage. After marriage, the property was registered in the joint names of both parties as tenants in common in equal shares on 30 August 1989. In 2000, the cross respondent registered a business company and obtained mortgage loans totalling approximately UGX 39,300,000 from Bank of Baroda, using the matrimonial home as collateral security. After obtaining the loan, the cross respondent relocated to the United Kingdom, changed her names to Esther Jogiana, and cut off communication with the cross petitioner. When the bank demanded repayment and threatened foreclosure, the cross petitioner wrote to the cross respondent but received no response. The cross petitioner eventually redeemed the property himself by settling the outstanding loan. The marriage was dissolved by consent judgment on 20 August 2012, with the distribution of the matrimonial home left to arbitration. The arbitration dismissed the cross respondent's claim due to her non-compliance. The cross petitioner then filed this cross petition seeking sole entitlement to the property.

Issues

  1. Who is entitled to the matrimonial home comprised at Plot 5 Semawata Road, Ntinda comprised in Leasehold Register Volume 1774 Folio 25?
  2. What other remedies is the cross petitioner entitled to?

Orders

  • Cross respondent is not entitled to the matrimonial home at Plot 5 Semawata Road, Ntinda, comprised in Leasehold Register Volume 1774 Folio 25.
  • Cross petitioner is entitled to the matrimonial home.
  • The names of Esther Bakiza shall be struck off the leasehold register Volume 1774 Folio 25.

Rules and key headnotes

Family Law — Matrimonial Property — Definition and Distribution
Matrimonial property is that property which the parties choose to call home and to which they jointly contribute, and should be considered differently from property acquired separately by each spouse or property held in trust for the clan.
Family Law — Matrimonial Property — Joint Ownership — Forfeiture for Wrongdoing
Where a spouse who is a joint proprietor of the matrimonial home mortgages the property with the intention of not redeeming it and abandons it to foreclosure or to the burden of the co-proprietor to redeem, that spouse cannot subsequently claim interest in the property on the principle that no person may take advantage of their own wrong (nullus commodum capere potest de injuria sua propria).
Administrative Law — Illegality — Court's Duty to Notice
A court of law cannot sanction what is illegal and illegality once brought to its attention overrides all questions of pleading, including any admissions made.
Land & Property — Land Registration — Cancellation of Names from Register
Under section 91 of the Land Act, a Registrar of Titles can cancel a certificate of title if it is illegally or wrongfully retained, and courts can similarly order cancellation, registration and transfer of titles on account of illegalities.
Civil Procedure — Ex Parte Proceedings — Burden of Proof
Whether a suit proceeds ex parte or not, the burden on the part of the plaintiff to prove the case to the required standards remains.

Legislation cited (2)

Cases cited (7)

  • Yoswa Kityo v Eriya Kaddu [1982] HCB 58
  • Julius Rwabinumi v Bahimbisomwe (SCCA No. 10 of 2009)
  • Muwanga v Kintu (High Court Divorce Appeal No. 135 of 1997)
  • Habre International Co Ltd v Ebrahim Alakaria Kassam & Others (SCCA No. 4 of 1999)
  • James Bahinguza & Others v Attorney General (Court of Appeal Miscellaneous Application No. 269 of 2013)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another [1982] HCB 11
  • UBC v SINBA (U) Ltd & Others (Miscellaneous Application No. 12 of 2014)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Bakiza v Nafuna Bakiza (Divorce Cause No. 22 of 2011) [2015] UGHCFD 26 (20 August 2015)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.