Wakilii

Tumusiime v Karungi & Anor (MISCELLANEOUS CAUSE NO. 002 OF 2018)

High Court · [2018] UGHCCD 38 · 2018 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Notice of Motion seeking removal of caveat lodged on freehold property
Decision
Caveat removed; property may be transferred to the purchaser

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that a wife who signs as guarantor to a mortgage over property impliedly consents to disposal of that property to satisfy the mortgage debt. Where a family derives sustenance from multiple properties, disposal of one property does not contravene Land Act provisions on family land. The caveat was ordered removed as the sale was made with the 1st Respondent's consent, evidenced by her guarantee.

Outcome

Caveat removed; property may be transferred to the purchaser

Facts

The Applicant, registered proprietor of Plot 17 Market Street, Kyenjojo Central, mortgaged the property with Centenary Bank. The 1st Respondent, his wife, signed as guarantor to the mortgage. When the mortgage terms were breached and an outstanding debt of UGX 90,000,000 remained, the Applicant sold the property to Mugenyi Julius on 23 June 2017 to clear the mortgage debt. On 5 July 2017, the 1st Respondent lodged a caveat on the property, claiming equitable interest as matrimonial or family property. The Court made an order of vacant possession on 22 August 2017, and the purchaser developed a commercial apartment on the land. The 1st Respondent challenged the sale in Civil Suit No. 19 of 2017 and filed Divorce Cause No. 001 of 2018, alleging the sale was made without her consent and that her signature on the mortgage was forged. The Applicant submitted that the family's matrimonial home was at Kyenjojo-Nyakabura and that the family derived sustenance from other properties including a commercial house at Kasina, a business at Mukeye, and developed kibanja at Nyakabara.

Issues

  1. Whether the property subject to the caveat constituted family land or matrimonial property requiring the wife's consent before disposal.
  2. Whether the 1st Respondent consented to the disposal of the property by signing as guarantor to the mortgage.
  3. Whether the caveat lodged by the 1st Respondent should be removed to enable transfer of the property to the purchaser.

Orders

  • Application allowed.
  • The Registrar of Titles (Fort Portal) is directed to remove the caveat lodged by the 1st Respondent on Freehold Register Volume HQT 526 Folio 2, Block (Road), Market Street, Plot 17 at Kyenjojo Central.
  • Each party to bear their own costs.

Rules and key headnotes

Family Land — Consent to Disposal — Implied Consent through Guarantee
Where a spouse signs as guarantor to a mortgage over property, that spouse impliedly consents to the disposal of the property to satisfy the mortgage debt, and cannot subsequently challenge the sale on grounds of lack of consent.
Family Land — Definition under Land Act — Sustenance from Multiple Properties
Family land under sections 38A and 39(7) of the Land Act is land on which is situated the ordinary residence of a family and from which the family derives sustenance. Where a family derives sustenance from multiple properties, disposal of one property does not contravene the Land Act provisions, provided other properties remain for family sustenance.
Caveat — Removal — Lack of Caveatable Interest
A caveat lodged by a spouse over property sold to satisfy mortgage debt will be removed where the spouse consented to the mortgage as guarantor and the family derives sustenance from other properties, such that the disposed property does not constitute family land requiring spousal consent.
Burden of Proof — Allegation of Forgery
Under sections 101 and 102 of the Evidence Act, a person who alleges forgery of their signature on a document must prove the forgery. A bald allegation of forgery without proof is insufficient to establish the claim.

Legislation cited (8)

Cases cited (1)

  • Makula International Ltd v His Eminence Cardinal Emmanuel Nsubuga and Another [1982] HCB 11

Full judgment

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

Tumusiime Vs Karungi & Anor (MISCELLANEOUS CAUSE NO. 002 OF 2018) [2018] UGHCCD 38 (22 August 2018)
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.