Nearly two years after NRM vice chairman Moses Kigongo sued to evict his estranged partner Olive from a house on plot 13, Kololo Hill Drive, a judge at the Lands division of the High court has ruled that she should stay put.
Olive, the president of the Uganda National Chamber of Commerce and Industry (UNCCI), argued in court that the house in contention was their “matrimonial” home.
Through Muwema and Company Advocates, Moses asked court to throw Olive out of the house, in which the two have lived for over 27 years, on grounds that he built it with his personal money amounting to Shs 1 billion.
But Justice Godfrey Namundi last week ruled that the house is co-owned by the two and issued a permanent injunction stopping Moses or his agents from evicting Olive from the house.
But before going into the nitty-gritty of who owns the house, Justice Namundi first delved into Olive’s first line of defence. It was to the effect that she is legally married to Moses, hence he cannot evict her since it is “a matrimonial property.”
In her court testimony, in which she was guided by her lawyer Peter Walubiri, Olive said she was married customarily to Kigongo at her parents’ home in Biharwe, Mbarara, around March 14, 1992.
To back up her testimony, Olive produced Ernest Sunday, her elder brother, and Patrick Tumwesigye, her cousin, who testified that indeed there was a customary marriage and all cultural norms were observed under Ankole customs.
Sunday and Tumwesigye testified that no bride price or dowry was paid because their family doesn’t ask for dowry for daughters. But in his testimony, Kigongo denied having formally visited or customarily married Olive or held any traditional ceremony to celebrate any form of marriage.
He said he was cohabiting with Olive and he insisted that Olive’s unilateral use of his surname Kigongo did not amount to a marriage. Moses also produced his close cousin, Ali Sendagire, who testified that he didn’t know of the said marriage and he didn’t know any of Olive’s brothers and sisters.
In determining the sticky issue, Justice Namundi said that Olive’s attempt to prove that she is indeed married to Moses hadn’t met the legal threshold.
Though Olive had attached photographs in a bid to prove that undeniably the two, now warring parties, had for a long time enjoyed an affair as husband and wife, Justice Namundi observed that “no photographs were produced to show proof of the celebration of the alleged customary ceremony.”
Accordingly, Justice Namundi said that much as Olive was referred to as Moses’ wife, or that she changed her name to “Mrs Olive Kigongo,” is not sufficient proof of marriage.
“In my view, it remains speculative as to whether there was a marriage celebrated between the parties. The evidence of her [Olive’s] two witnesses was contradictory as to who attended and what occurred at the supposed ceremony,” Justice Namundi said, adding, “There is no explanation why [the] said marriage [if at all] was never registered.”
INTEREST IN THE LAND
In deciding the contentious issue of whether Olive has interest in the property, Justice Namundi relied on the principle of equity. He said one of the maxims of equity is that “it looks on that as done which ought to be done.”
The judge went on to believe Olive’s counter claim, filed in court, in which she said that in 1987, she entered into an oral partnership with Moses. In the same year, Moses requested Olive to oversee and monitor the construction of the residential house now in issue.
“In due course, I [Olive]also contributed financial resources and committed much of my time to the construction exercise since the plaintiff [Moses] was very busy with official government duties,” she asserted.
Olive said that during the construction of the house, Moses assured her that they would co-own it.
“Relying on his assurances, I gave up my own search for a plot of land. I wanted to build my own house of residence in an up-market location in Kampala; hence, I concentrated all my resources, skill, time and effort in overseeing the construction of the suit property until it was completed in 1990,” she said.
After completion of the house, she said, Moses requested her to move in and assured her that it would be their home for the rest of their lives.
“Relying on that assurance, I moved into the property and I have resided there with Moses and our children as a family until he recently voluntarily left us,” she said.
“That ever since I moved into the property, I have been responsible for the day-to-day maintenance of the property, including its decoration, painting and remodeling including working on the extension of the dining room.”
Having read that, Justice Namundi said he found that the principle of equity favours Olive.
“It is only fair that the defendant [Olive] is entitled to an interest in the suit property which has been her “marital” home with the plaintiff [Moses] for nearly 26 years and is still living there...,”Justice Namundi said.
“The defendant was assured that she had a home for life and it did not matter whether she made any financial contributions to its construction; for as long as she lived on the assurance by the plaintiff that she was a wife and she had security of tenure.”
Consequently, Justice Namundi ordered the commissioner for land registration to register the property in the names of both Moses and Olive, with both
“having common equal shares.” Moses’ lawyers have indicated that they will appeal.