THE REPUBLIC OF UGANDA
IN THE COURT OF APPEAL OF UGANDA
CORAM:HON.JUSTICE L.E.M. MUKASA-KIKONYOGO, DCJ
HON. JUSTICE C.K. BYAMUGISHA, JA
HON. JUSTICE S.B.K. KAVUMA, JA
CIVIL APPEAL NO. 37 OF 2008
MAYI BINT SALIM & 10 OTHERS .……………………………………
(Arising from the judgment of the High Court sitting at Kampala, given by Lady Justice C.A. Okello, on 3rd July 2006 in Civil Suit
No. 617 of 2000)
HAJJI SULAIMAN MAYANJA……………………………………………RESPONDENT
JUDGEMENT OF L.E.M. MUKASA-KIKONYOGO, DCJ
Mayi Bint Salim & 10 others, the appellants were found liable to the respondent by the High Court of Uganda at Kampala and ordered
to pay costs. They appealed to the Court of Appeal of Uganda at Kampala against the decision of the trial court. At the close of
the hearing on 21/09/2009, the appeal was adjourned for judgment on notice which we are doing now.
Haji Sulaiman Mayanja, the respondent, in this appeal was allegedly married to the late Hajati Masitula Nabukenya Mayanja, hereinafter
to be referred to as the deceased or the respondent’s late wife. At her death, the respondent as her spouse and next of kin
applied for letters of administration in respect of the suit property which formed part of the deceased’s estate.
This appeal arises from a land dispute comprising of two parcels of property namely block 15, plots 515 and 920 Kibuli, Mengo. According
to the respondent he paid for the plots whilst his deceased wife paid for the mailo interest in both plots in 1986 from the then-mailo
land owner Mulangira Kakungulu. At the time, the respondent was operating a petrol station on the premises and wanted title to the
land. As the respondent noted, he “built the petrol station on the suit premises.” He, funded the entire purchase price
from his earnings but both plots were registered in the deceased’s name. The respondent’s name “didn’t appear
on certificate of title because the deceased was running the petrol station.” Thereafter, the deceased erected four homes on
Plot 15, and one home on Plot 920, all of which were rented out to tenants.
On the contrary, the appellants contended that the land was inhabited by the late Basisa Matovu, the deceased’s father, who
constructed residential homes thereon prior to his demise. Although the appellants conceded Masitula had two houses on the land,
only one was hers, the second house was left in her custody to rent for their father’s children, all for her brothers and sisters.
Another claim, over the disputed property yet made by the appellants was that one Kadija Nabukera and two other family members, following
the offer by the landlord, Mulangira Kakungulu to sitting tenants to purchase the plots they were occupying. In a meeting subsequently
attended by the family, Masitula was appointed a care-taker or trust of the suit property for Matovu’s children. However, it
was registered in her name to hold in trust for the family, but not donated to her. Before any measures were taken to protect the
family interest in the suit property, Masitula fell sick and died. After Masitula’s death, her husband, the respondent sold
some of the houses. He also applied for Letters of Administration in respect of the estate of the deceased, in administration cause
116/1999. When served with notice, all the 11 appellants lodged a caveat while the respondent filled civil suit no. 617 of 2000 and
applied for an order to vacate the caveat and obtained Letters of Administration. Judgment was entered for the respondent in the
following terms: -
that the caveat be removed
that letters of administration be granted to respondent
that the appellants pay costs of the suit to the respondent.
Aggrieved by the decision of the court the appellants appealed to this Court on the six grounds stated in the memorandum of appeal
below, and reading as follows: -
1. THAT the learned trial judge erred in law and fact when she held that there was a valid subsisting marriage between the Respondent
and the deceased, the late Masitula.
2. THAT the learned trial judge erred in law and fact when she held that the land registered in the late Masitula’s names passed
onto the Respondent after the demise of the late Masitula.
3. THAT the learned trial judge erred in law and fact when she relied on fanciful theories and held that the interest in the late
Masitula’s land passed on to her husband, the Respondent herein.
4. THAT the learned trial judge erred in law and fact when she held that the late Masitula was not appointed as trustee or caretaker
of the suit land.
5. THAT the learned trial judge erred in law and fact when she placed heavy reliance on the evidence of PW1.
6. THAT the learned trial judge erred in law and fact when she failed to evaluate evidence thereby arriving at an erroneous and unjust
Court was prayed to allow the appeal, set aside the judgment of the High Court, and award costs to the appellants.
The appellants were represented by Mr. J.M. Mugisha, whilst Mr. P. Ayiguhugu appeared for the respondent, Counsel for the appellants
grouped the six grounds of appeal into four issues to be decided by the Court. Counsel for the respondent apparently adopted the
On the evidence on record, it appears there are two main issues for this Court to determine. Firstly, whether the learned trial judge
rightly entered judgment in favor of the respondent in respect of the deceased’s estate on the ground that there was a valid
subsisting marriage between them.
Secondly, whether the part of the suit property registered in Masitula’s name properly passed to the respondent upon her death
and that did not form part of the inheritance of the appellants.
For the reasons stated below, it was submitted by counsel for the appellants that the burden of rebutting the presumption of marriage
had been discharged. The “rites and observance” of proper Mohammedan marriage were not followed. See Marriage and Divorce of Mohammedans Act, Section 2.
Consideration by Court
Firstly, on brief recitation of the facts, counsel faulted the learned trial judge for finding that there was a valid subsisting
marriage between the respondent and the deceased. He argued that the validity and other requirements including attendance of witnesses,
issue of certificate, payment of mahare (bride price) and introduction ceremony were not complied with.
Secondly, relying on authority in the conferencing notes Paul Vs Muhammed 1968 E.A. pg. 111, the appellants conceded that there was cohabitation between the respondent and the deceased. However, merely cohabiting
and producing offspring did not constitute marriage.
Thirdly, it was contented that the learned trial judge erred when she held that land registered in the name of the deceased passed
to the respondent.
Fourthly, the issue was whether the deceased had been appointed trustee of the suit property. DW1, DW2, DW3, and DW4 testified that
Masitula was appointed trustee of the property. The learned trial judge improperly evaluated such testimonial evidence that showed
Masitula was holding the suit property in trust for the appellants.
Fifthly, counsel submitted that the learned trial judge failed to evaluate the evidence as a whole. The court was referred to the
case of Kifamunte v. Uganda SCCR A No. 10/1997, for the premise that the Court of Appeal had a duty to reappraise the evidence, especially given the learned trial judge’s
failure to properly do so.
Sixthly, on the above stated six grounds, the appeal be allowed.
In reply, Mr. P. Ayiguhugu opposed the appeal because it had no merit. The learned trial judge properly evaluated the law and the
evidence in coming to a correct decision.
The learned trial judge properly held that there was a valid marriage between the respondent and the deceased. Additionally, long
cohabitation which was not rebutted raised the presumption of marriage. Several witnesses gave evidence to the occurrence of the
marriage and payment of mahare to the respondent. As for the authorities cited it was submitted by counsel that they were inapplicable
as they did not concern the Islamic marriage. Finally the Marriage and Divorce Act is not specific on the requirements of a valid
On the second and third issues, learned counsel for the respondent stated that the learned trial judge properly concluded that there
was no evidence that the deceased was a trustee. The mailo interest in the real property in dispute did not belong to her father,
Matovu, but to the deceased herself. Referring to page 10 of the High Court judgment, Mr. P. Ayiguhugu contended that the learned
trial judge properly evaluated the evidence of DW1, DW2, DW3, and DW4, and still found that there was no evidence to show that Masitula
was appointed trustee.
As to the fourth issue, counsel for the respondent submitted that the learned trial judge properly evaluated the evidence and came
to a correct decision. Accordingly, learned counsel for the respondent prayed that the court dismiss the appeal.
In rebuttal, counsel for the appellants argued that they had discharged their burden of rebutting a presumption of marriage. The
“rites and observances” of a proper Mohammedan marriage were not followed. See Marriage and Divorce of Mohammedans Act,
Furthermore, the appellants contended that the history of the land at issue had to be considered. The learned trial judge wrongfully
held that the respondent was a beneficiary in a non-existent marriage. Besides, there was evidence of the appointment of the deceased’s
appointment as a trustee for her family.
Basing myself on the submissions of both Mr. J.M Mugisha, and Mr P. Ayiguhugu, the arguments advanced before the court as well as
the relevant provisions of law and authorities I now proceed to evaluate the evidence adduced before court with the view of determining
As the first Appellate Court, I note that the duty of the court under rule 30 of the Judicature (Court of Appeal Rules) Directions is well settled. It is to evaluate all the evidence which was adduced before the trial court and to arrive at its own conclusions
as to whether the findings of the trial court can be supported” Fredrick J.K. Zaabwe vs Orient Bank Ltd and 5 Others (Civil Appeal No. 4 of 2006),  UGSC 21; see also Pandya Vs. R. 1957 E.A. LR pg. 336.
Mindful of the voluminous citations, cited by the learned counsel in support of the appellants’ case I will now proceed to
evaluate the evidence before Court. I propose to start by examining the relevance of the definition of marriage and the Act in this
The Marriage and Divorce of Mohammedans Act (1906) is pertinent to this dispute, particularly as to whether there was a valid marriage
between the respondent and the late Masitula. It states that “[all marriages between persons professing the Mohammedan religion
and all divorces from such marriages celebrated or given according to the rites and observances of the Mohammedan religion customary
and usual among the tribe or sect in which the marriage or divorce takes place, shall be valid and registered as provided in this
Clearly the respondent adduced convincing evidence to support the finding of the learned trial judge, that there was a valid marriage
between the parties.
Firstly, he gave detailed testimony of the ceremony stating for example who married them, people who were present including relatives.
Secondly, his testimony was corroborated by that of PW2 who testified that the respondent and deceased at first they were friends
(lovers), then they went through Moslem religious marriage ceremony. Other guests who were present included his brothers.”
R.,p. 35. Mohammed Lubowa (PW3).
Thirdly, the “Kiganda traditional ceremony to introduce the respondent to the family was held and mahare paid. In any case as
testified by PW2, there would not be much excitement being a second introduction marriage.
On the documentation of the marriage, it would be appreciated that in those days marriage was a simple ceremony which could even
be conducted in the house without taking photographs.
The argument, therefore, concerning the absence of a marriage certificate has no substance in view of the … Act, High Court
Judgment, P. 7.
In further support of a valid marriage between the respondent and the deceased is their conduct. Despite the nature of their employment,
which required them to live in various places in Uganda which included Kasese, Mbale and Jinja, they produced five children and purchased
Against the strong evidence adduced by the respondent is the contradictory and inadequate testimony by the appellants witnesses.
For example DW1 testified “I am not aware that the two celebrated marriage under Islamic religion since I was not there.”
She further testified that “I was not around when the respondent and Masitula married.” DW2 stated that the “marriage
wasn’t official, as there was no ceremony in a mosque,” but also stated that the Respondent “married Masitula but
I can’t recall when.” As detailed above, DW4 twice-referred to the respondent and the deceased as “married.”
Such scanty evidence against the occurrence of a valid marriage ceremony does not sway this court from finding that the respondent
and the deceased validly married.
The aforesaid not withstanding, we must further examine the evidence in light of the numerous authorities citied by the appellants
in arguing that even if such a marriage ceremony occurred between the respondent and the deceased, such a service did not create
a valid marriage.
I accept the submission by counsel by appellant that “it is settled law that cohabitation alone in Uganda does not amount to
On the requirement for registration of customary marriage, I agree like any other must be proved by evidence of certificate of registration.
It is the law requiring customary marriages to be registered was not made in vain.” Stephen Bujara v. Polly Twegye Bujara (Civil Appeal No. 81 of 2002),  UGCA. However, the issue in this case as noted by learned trial judge was not whether the marriage was registered or not but whether there
was evidence of marriage including a marriage certificate.” Stephen Bujara v. Polly Twegye Bujara (Civil Appeal No. 81 of 2002),  UGCA.
The fourth issue, the appellants contends that a valid Islamic marriage ceremony requires both “a witness and the person who
gives or hands over the bride to the groom.” The requirement to organize introduction was complied with as the deceased was
given away in marriage by her half-brother Jumaine Salim. The deceased was properly given away. In addition to his late mother and
two other relatives on the deceased’s side, her late mother attended, as well a sister, a half-sister, and a half-brother.
The appellants did not adduce any credible evidence suggesting there was anything near a lack of witnesses to validate the ceremony.
As such, I find that the 1964 ceremony validly complied with witnessing requirements.
In the light of the evidence adduced, I am in agreement that the learned trial judge “I am therefore prepared to believe that
the simplest ceremony suffices to bring into being an Islamic marriage. In this respect I believe the respondent’s evidence
that he and his late wife went through a marriage ceremony, I further believe his evidence, corroborated by the evidence of Mr. Joloba
(PW2), that the ceremony was conducted in a Mosque at Kibuli by Sheikh Mnem and was witnessed by Joloba and others.”
I further find, similarly to the learned trial judge, that the respondent oversaw the burial of the deceased in his capacity as her
husband. She stated in her judgment at page 8 that – (“I believe that the plaintiff took that decision in his capacity as a husband.”).
The court, moreover, notes the difficulty of determining with precision that a marriage occurring approximately forty-six years ago,
in actuality, did not conform to the requirements of a valid Mohammedan marriage. The respondent and the deceased lived together
as husband and wife from 17/02/1964 until the deceased’s death on 15/07/1999 – approximately thirty-five years. There
is no evidence whatsoever that the respondent and the deceased did not think they were married. There is zero evidence that either
of them had any uncertainty as to whether they were legally married. Furthermore, the memories of those witnesses and participants
still living has grown dim. I am, therefore, reluctant to so many years later reach back and disturb the validity of the marriage
without compelling evidence that such a ceremony either did not take place or did not comply with the minimum requirements of an
Islamic marriage ceremony. I conclude, in conformity with the learned trial judge, that the marriage ceremony did occur and did meet
the requirements of a valid Islamic ceremony.
Next, I examine the question of whether the learned trial judge properly concluded that the land at issue, registered in the deceased’s
name, properly passed to the respondent upon Mastula’s death. The answer to this question is not hard to find, I have already
narrated the controversy over the suit land and its acquisition. The respondent claims to have funded the entire purchase from his
earnings, however, although registered in the deceased’s name.
As an initial matter, I concur with the learned trial judge that the burden of proving that the deceased, Masitula, was not the legal
owner of the mailo interest in the two plots falls on the appellants. See High Court Judgment, p. 9 (“There is no dispute between the parties that the certificate of title to the two plots of land are in the name of the late
Masitula, I therefore agree . . . that the burden of proving that Masitula was not the legal owner of the plots is borne by the defendants.”).
Moreover, as DW1 testified, the late Matovu “migrated to [Buwama] when left Kibuli.” Accordingly, he died in Buwama.
It is understandable that consequently, the learned trial judge was skeptical that Matovu retained title to the land and his wives
remained behind on the suit land subsequent to his departure to Buwama. See High Court Judgment p. 10 (“I am not convinced
that Matovu owned the suit land when he left for Bundibugyo, nor do I believe that his wives remained behind in Kibuli residing on
the suit land.”).
Accordingly, I further concur with the learned trial judge’s conclusion that there is “no evidence proving that the money
used to purchase the mailo interest in the land was raised from the estate of the late Matovu.” High Court Judgment, p. 9.
DW1 testified that rent proceeds from the structures on the land were used for school fees (“Masitula had two houses on that
land, one was hers, but 2nd one was in respect of which she was supposed to collect rent for school fees for children.”).
I also give weight to the observations made by the learned trial court judge upon her visit to the land in dispute. She noted that
“on my visit to the locus in quo, . . . apart from the houses the appellants conceded were built by [the deceased], the rest
of the structures are dilapidated temporary ones.” High Court Judgment, p. 11. In my opinion, the learned trial judge was in a better position to comment on the status of the structures, High Court Judgment,
p. 11. In the premises, I reject the appellants’ contention that the deceased was to hold the land in trust until all of Matovu’s
children reached the age of majority.
On the aforesaid reasons, from the submissions of both counsel for the appellants and the respondent, 1 find no merit in any of the
grounds of the appeal. I would, therefore, dismiss the appeal and uphold the judgment and orders of the lower court. Since Steven
Kavuma J. A. agrees, the appeal is dismissed with costs. The judgment and orders of the lower court are upheld.
Dated at Kampala this….04th ……day of….October…, 2010
DEPUTY CHIEF JUSTICE
JUDGMENT OF HON JUSTICE S.B..KAVUMA, JA
I have had the benefit of reading, in draft, the judgment prepared by the Hon. Lady Justice L.E.M.Mukasa-Kikonyogo, DCJ.
I agree with the reasoning for the decision and orders she makes I have nothing useful to add.
Dated at Kampala this ….4th….day of …October…2010
JUSTICE OF APPEAL