Wakilii

Tumukwasibwe v Tumukwasibwe (Miscellaneous Cause 29 of 2023)

High Court · [2023] UGHCFD 106 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for partition and severance of joint tenancy in matrimonial property under Article 50(1), (2) and 26 of the Constitution, Human Rights Enforcement Act 2019, Judicature Act, and Civil Procedure Act
Decision
Joint tenancy severed and properties partitioned. Applicant awarded Plot 493 with three-storey commercial building and temporary structures. Respondent awarded Plot 897 with commercial building and temporary structures. Titles to be registered separately in each party's name.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that the application was properly before court under Article 26 of the Constitution and the Human Rights Enforcement Act. The parties were joint tenants of the two properties. Severance and partition were warranted due to the impossibility of peaceful co-ownership, with the effective eviction of the applicant by the respondent. The court partitioned the properties: the applicant was awarded sole ownership of the three-storey commercial building on Plot 493, while the respondent received sole ownership of Plot 897, based on their respective financial contributions and risks undertaken in developing each property.

Outcome

Joint tenancy severed and properties partitioned. Applicant awarded Plot 493 with three-storey commercial building and temporary structures. Respondent awarded Plot 897 with commercial building and temporary structures. Titles to be registered separately in each party's name.

Facts

The applicant and respondent are husband and wife married on 19 October 1991. They lived separate lives for over 10 years and a divorce petition (later set aside) was filed. The parties jointly purchased two plots of land in Kibuga: Plot 493 in 2009 and Plot 897 in 2013, both registered as joint proprietors. They jointly obtained a loan of UGX 120,000,000 from Centenary Bank to construct the ground floor of a commercial building on Plot 493. The applicant independently obtained a further loan of UGX 496,000,000 from Hidestin Logistics in 2017 to complete the remaining two floors, making it a three-storey commercial building. Plot 897 was also developed with commercial structures. The applicant obtained another loan from Finance Trust Bank in 2022, using her personal property as security, to develop properties. The properties generated monthly rent of approximately UGX 65,000,000. On 1 March 2022, the respondent and some of their children evicted the applicant from the properties and took sole possession and management, denying her access and rent collection. The applicant defaulted on her Finance Trust Bank loan due to being denied rental income.

Issues

  1. Whether the application is properly before Court under Article 50 of the Constitution and the Human Rights Enforcement Act?
  2. Whether the suit properties comprised in Kibuga Block 12 Plot 493 and Kibuga Block 12 Plot 897 are held in joint tenancy by the applicant and the respondent?
  3. Whether there are grounds that merit severance of the joint tenancy?
  4. What remedies are available to the parties?

Orders

  • The suit land and commercial building thereon comprised in Kibuga Block 12 Plot 493 land at Mengo Kisenyi shall belong to the applicant.
  • The suit land and commercial building thereon comprised in Kibuga Block 12 Plot 897 Kisenyi land at Mengo shall belong to the respondent.
  • The applicant shall hold ownership of the 2 kiosks on the side of the building including all other temporary structures on the suit land comprised in Block 12 Plot 493 land at Mengo.
  • The respondent shall have ownership of all the kiosks and temporary structures situated at Block 12 Plot 897 land at Mengo Kisenyi and shall collect the rent.
  • The Commissioner Land Registration is hereby directed to register Ms. Tumukwasibwe Evas as the registered proprietor on the Certificate of Title for land comprised in Kibuga Block 12 Plot 493 land at Mengo.
  • The Commissioner Land Registration is hereby directed to register Mr. Tumukwasibwe Broad as the registered proprietor on the Certificate of Title for land comprised in Kibuga Block 12 Plot 897 land at Mengo.
  • A permanent injunction is issued against the respondent restraining him or his agents or assignees from interfering with the applicant's proprietary rights in the suit land and property as granted by this court.
  • Each party shall bear its own costs.

Rules and key headnotes

Constitutional Law — Right to Property — Article 26 — High Court Jurisdiction — Enforcement under Human Rights Enforcement Act 2019
The High Court has jurisdiction under Article 26 of the Constitution and Section 4(1)(d) of the Human Rights Enforcement Act 2019 to entertain an application by a co-owner alleging interference with her right to own property individually or in association with others, where the remedy sought is beyond the pecuniary jurisdiction of the Magistrate's Court.
Land & Property — Joint Tenancy — Registration of Titles Act s.56 — Presumption and Four Unities
Where two or more persons are registered as joint proprietors of land under Section 56 of the Registration of Titles Act, they are deemed to be entitled to the land as joint tenants if the four unities of possession, interest, title, and time exist. A certificate of title issued under the Act is conclusive evidence of the particulars set forth and of the interest held by the registered proprietors.
Land & Property — Severance of Joint Tenancy — Grounds — Impossibility of Peaceful Co-ownership
A joint tenancy may be severed by an act of one of the joint tenants, by mutual agreement, or by a course of dealing between the joint tenants leading to the inevitable conclusion that the interests should be severed. Where one co-owner has effectively evicted the other from jointly owned property and the parties have demonstrated a complete failure to work together in civility, the court may order severance and partition of the property.
Land & Property — Partition — Equitable Distribution Based on Contributions and Risk
In partitioning jointly owned property, the court will consider the respective financial contributions and risks undertaken by each party in developing the property. Where one party has undertaken greater financial risk and made greater individual contributions to develop specific assets, that party may be awarded those assets while the other party receives a separate property to compensate their share in the first property.
Family Law — Matrimonial Property — Partition Without Prior Divorce Decree
The court may order partition of jointly owned matrimonial property even where the parties' marriage has not been dissolved by divorce, where the parties have demonstrated an inability to peacefully co-own the property and one party has been effectively excluded from possession and enjoyment of the property.

Legislation cited (14)

Cases cited (11)

  • Zachary John Olum v Bongomin John Odora & 4 others (HCCA No. 120 of 2015)
  • Mukuba Charles v Julius Kiyimba Lubega (Miscellaneous Cause No. 107 of 2022)
  • Bongole Geoffrey & Others v Agnes Nakiwala (CACA No. 0076 of 2015)
  • Nagidde Rebecca v Mwasa Charles Steven (Civil Appeal No. 160 of 2018)
  • David Acar & 3 others v Alfred Acar Aliro (1982) HCB 60
  • Fernandes V Noroniha [1969] EA 506
  • De Souza v. Uganda [1967] EA 784
  • Yeseri Waibi v. Edisa Byandala [1982] HCB 28
  • Nsibambi v. Nankya [1980] HCB 81
  • Morley v. Bird (1798) 3 Ves 628
  • Charman v. Charman (No 4) [2007] EWCA Civil 503; [2007] 1 FLR 1246

Full judgment

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

Tumukwasibwe v Tumukwasibwe (Miscellaneous Cause 29 of 2023) [2023] UGHCFD 106 (1 November 2023)
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.