Opinion: Supreme Court repaints the picture on land matters

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By Harold Turigye

On the 21st day of November 2018, the Supreme Court of Uganda delivered a landmark decision. The decision delivered by Honourable Justices Mwangusya, Mwondha, Buteera, J.J.SC Nshimye and Tumwesigye inter alia addresses at length the concept of family land and its twin concept of spousal consent. However, these did not cover the loud pronouncements on related issues.

The case of MOLLY TURINAWE, FIONA TURINAWE, BERBES ANKUNDA, ROBIN TURINAWE AND DAVIS TURINAWE VERSUS ENGINEER EPHRAIM TURINAWE AND DEWARK LIMITED SSCA NO 10 OF 2018 was yesterday concluded by the highest court in the land, putting to bed questions that were brought in play by the rare facts of this matter. The case was an appeal against the Court of Appeal decision delivered in 2009.

Therefore, what are the facts that birthed the principle laid down from this case? The 1st Appellant (Turinawe Molly) and the 1st Respondent (Ephraim Turinawe(Eng.) were legally married, and Fiona (2nd Appellant) and Davis (5th Appellant) are a product of that marriage. The 1st Respondent Mr. Ephraim while working as a city Engineer for Kampala City Council Association (KCCA) as part of his employment benefits was allocated a residential house in Kololo (Nyonyi Gardens).

Mr. Ephraim stayed in the said house with his family and paid rent to the KCCA as the Landlord. In 1999, the KCC gave Mr. Ephraim a chance to purchase the house and own in permanently, and further proposed a payment plan for the value of sixty-five million Uganda Shillings. The couple did not have enough money and so assigned the offer to a one Ms. Kabutiti Elizabeth at Seventy Million Uganda Shillings.

The agreement was thus executed between KCCA and Mr. Ephraim (who had assigned his offer to the said Elizabeth). KCCA later handed over the transfer forms to Mr. Ephraim, who upon completion of the transfer of Title into his name, in turn transferred the property into the names of Dewark Ltd(The 2nd Respondent)-a company belonging to Ms. Elizabeth Kabutiti, her son and her husband.

The Appellants as family to Mr. Ephraim (the 1st Respondent) then took him and the company to court claiming that the house was family land, and that the transaction between Mr. Ephraim and Ms. Elizabeth (assignment of the KCCA offer) was null and void. The High Court agreed with them, the Court of Appeal on Appeal reversed the High Court decision, and thus this appeal to the Supreme Court. But how did the Supreme court look at this transaction?

The main issues of determination revolved around the questions as to whether the property was family property and whether registration on the title is the concrete proof that one owns the property. Several more questions arise from this set of live red facts.

The factual question as to whether Ephraim needed consent from his family and wife before transferring and assigning his employment benefits.The facts also presented a grey area as to what time it takes for an acquisition become family property.

Based on the facts above; before Ephraim decided to assign his benefits, he had made a down payment of 15% towards the house and it was the Appellants’ argument that at that point Mr. Ephraim as the family head had acquired an equitable interest in the property. Therefore at that point, the family had a claim on that property and thus the same qualified as family property.

The argument was amplified when the Appellants averred that even before Mr. Ephraim transferred to Deway Investments Limited, he was added to the Title as the result of the contract between him and KCCA. The Appellants argued that at that point of entry on the title, the property had taken a definite shape as family land and so Mr. Ephraim needed consent before making any transaction on the same.

Furthermore in the know of the crater of this contention; section 39 of the Land Act provides that no person shall sell/ exchange/ transfer/ pledge/ deal in family land or enter in such a contract except with prior written consent of the spouse. What amounts to family land is where the family derives sustenance/ stays or what the parties choose to call family land.

In silence of the noises created by this case, the Supreme Court held that one can only transfer what he owns/possesses. That according to the case the land belonged to KCCA, and the family were just mere tenants. ‘That the 2nd respondent through Ms, Elizabeth was the actual buyer they held further holding that Mr. Ephraim as the vendor was just a trustee of the said property, and was not an owner at any one point.

The sane Interpretation from this decision of the Supreme Court is that Court has the power to undress the transaction and consider the Hows, whens, and whats of it all. The Holding of Court concludes that mere registration on the title does not confer ownership as sometimes a mere look at the background of the transaction with the proverbial God’ eeye might show another person/entity which really possesses legal or equitable Title.

The decision of Court further showed the rights of each party during all the stages of a land transaction from the point of bargaining up to final registration on the title. The honourable justices seemed to agree on the fact that when one purchases property, and pays full  or half the purchase price(of course depending on the terms of the agreement), the vendor of the property shifts in terms of rights, and only holds that same property on trust for the benefit of the purchaser. This is true even when the said vendor’s name exists on the Title as the registered proprietor.

Court further enunciated on the convoluted concept of the limitation as to transactions on family Land as laid down in Section 39 of the Land Act. One must prove a legal marriage (not just cohabitation). He must further prove ownership of the family head. Simply put; you cannot be a tenant and then claim when your husband sublets part of the property that that is family land. The same would be nothing more but a legal comedy. Court would be turned into a theatre. One must also prove that they draw sustenance from that property or stay on that specific property. Where any of the three is missing, your right to claim too is missing.

Regarding the point of Judicial Officers lifting the veil and unearthing the circumstances of every land deal leading to the registration, it was previously held by the Court of Appeal that literally, it is Ms. Elizabeth who paid the purchase price and this obtained an equitable interest in the property. The opposing argument was that the evidence on the Ephraim-KCCA transaction showed that the money was paid by Ephraim and how he got the money was as irrelevant as the bag he carried it in, or the pen he used to sign the cheque.

However, it is my learned opinion that some will view the decision as a stray route from the Section 59 of the Registration of Titles Act that is to the effect that in absence of fraud, registration on title is conclusive evidence of ownership. To fit these bolts into the facts, Court in its holding seems to deliberately ignore the fact that Mr. Ephraim was entered on the Title before he transferred to the 2nd Respondent. One would be sync with the said legal position that at that point, he was the owner of the property, and thus no matter how short it lasted, the same (had) qualified as family land.

The decision seems to paint the picture that the Honourable Justices needed to add another phrase on the provision regarding conclusive proof of ownership as provided for by the Registration of Titles Act and that thus this was Judicial legislation. By and large, the Honourable Justices were not dressed to practice sophistry but gave a sober guidance pertaining the Land concepts in question as presented by the facts in this case.

The Writer is an Associate at PACE Advocates

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