[2023] UGHCFD 9

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **FAMILY DIVISION** DIVORCE CAUSE NO. 17 OF 2020

# CHRISTELLE AKONKWA ZIHALIRWA......................... PETITIONER

#### **VERSUS**

# MARDOCHEE BUBALA BYEMBA....................................

# BEFORE: HON. LADY JUSTICE JEANNE RWAKAKOOKO

#### **JUDGMENT**

#### Introduction

By her petition, the Petitioner seeks;

- a) That the marriage between the Petitioner and the Respondent be dissolved. - b) That the Petitioner be granted sole custody of the child of the marriage. - c) That the Respondent be condemned in such damages as may be awarded in respect of his violent character; that the damages be applied for the benefit of the Petitioner and of the child or otherwise as may deem fit and proper to the Honorable court. - d) That the Respondent pays costs incidental to the petition. - e) That the Petitioner may have such further and other relief in the premises as the Honorable court may deem fit and proper.

#### Background

The marriage between the Petitioner and the Respondent was solemnized on the 17^th August 2018 at Eglise Gloire De Dieu as evidenced in annexure A1 and A2. The marriage was legalized under the provisions of the marriage laws of the Democratic Republic of Congo.

After the solemnization of the marriage, the Petitioner and the Respondent lived at Kitende off Entebbe Road and begot one issue born on 5^th June 2019.

The Petitioner complained that on 1^st April 2019 following molestation, domestic violence and abuse by the Respondent, the Petitioner left the marital home in Kitende and returned to her parents' home at Kakungulu Akright Estate Sekiunga in Wakiso District. Consequently, the Petitioner was admitted at Emmanuel Medical Centre where she gave birth to the issue of the marriage the following day. During this time, it is alleged that the Respondent did not contact nor attend to the Petitioner while she was admitted.

On the 27^th December 2019, the Petitioner was served with an invitation from the Uganda Police following a complaint vide reference no. $SD/72/27/12/19$ lodged by the Respondent on account of alleged domestic/emotional violence, demanding the Petitioner's attendance at Kajjansi Police Station on the 28^th December 2019.

Whilst at the police station, the Respondent sought access of the child and a police officer escorted the Respondent, in the presence of the Petitioner's parents to see the issue of the marriage. However, while at the Petitioner's parent's home in Akright Kakungulu, the Respondent became violent and threatened to forcefully take the child, thus the police officers were prompted to end the visit.

The Petitioner averred that the Respondent's violent and abusive behavior has irrevocably broken the marriage and the same should be resolved. The Petitioner averred that there has been no collusion or connivance between herself and the Respondent in seeking resolution of the marriage.

There was no reply put in by the Respondent despite numerous attempts to serve the Respondent including service by substituted service. Subsequently, a default judgment was entered against the Respondent.

# Representation

At the hearing, Enoth Mugabi appeared for the Petitioner. The Petitioner was present. Neither the Respondent nor his legal representative was present. Court directed for the Petitioner to file written submissions which was duly complied with.

# **Issues for Determination**

The following issues were raised and will be adopted by this court with slight modifications for determination of this matter;

- 1. Whether this Court has jurisdiction to determine this matter - 2. Whether the petition raises grounds for dissolution of the marriage between the Petitioner and the Respondent - 3. Whether sole custody of the issue of the marriage should be granted to the Petitioner - 4. What remedies are available to the Petitioner.

# Resolution

# Issue One: Whether this Court has jurisdiction to determine this matter

Article 21(1) of the 1995 Constitution of Uganda states that all persons are equal before the law and under the law in all spheres of political, economic, social and cultural life and in every other respect and shall enjoy equal protection of the law.

**Article 21 (2)** provides that without prejudice to clause (1) of this article 1, a person shall not be discriminated against on the ground of sex, race, colour,

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ethnic origin, tribe, birth, creed or religion, social or economic standing, political opinion or disability.'

**Section 3(1) of the Divorce Act** states that where all the parties to a proceeding under this Act are Africans or where a petition for damages only is lodged in accordance with Section 21, jurisdiction may be exercised by a court over which presides a magistrate grade 1 or a chief magistrate.

**Section 3(2)** provided that in all other cases jurisdiction shall be exercised by the High Court only.'

In the case of Fredrick Kato V Ann Njoki Divorce Cause No. 10 /2020 Justice FMS Egonda-Ntende (as he then was) discussed the jurisdiction of the high court in divorce matters. He stated, 'the High Court is a court of unlimited jurisdiction with supervisory powers over magistrates' courts. No doubt the High Court has jurisdiction to determine divorce causes of any nature of parties regardless of race. *Nevertheless, the High Court has powers under Section 18 of the Civil Procedure* Act to withdraw cases from Magistrates Courts and try them or to transfer cases to Magistrates' courts for trial in those courts. Though a matter may be filed in High Court the High Court may transfer the same to a magistrate court. The High *Court may withdraw from a Magistrates' court a matter and try it in the High Court.* The discretion granted to the High Court is wide and perhaps limited only by various other applicable laws to jurisdictional issues and that such discretion shall be exercised judicially. In the result I would find that though Africans can file their divorce petitions in the High Court just as people of all other races may do the High Court retains the power to order that such cases may be tried in the Magistrates' courts for reasons it would give.'

The marriage between the Petitioner and the Respondent in the instant matter was solemnized in the Democratic Republic of Congo as evidenced from annexures PE1, PE2, PE3 and PE4. After the marriage the couple resided in Uganda in Kitende Wakiso District. The issue of the marriage was born in Uganda vide annexure PE5 which is his birth certificate.

Clearly both parties are African of Congolese descent. As envisioned under section 3 of the Divorce Act (supra) such a matter may be determined by a magistrates' court however, the language in the above section is not mandatory. As clearly espoused in the **Fredrick Kato case (supra)** the high court has unlimited original jurisdiction and there is nothing that bars this honourable court from determining this matter.

In the **Fredrick Kato case (supra)**, Justice Egonda Ntende (as he then was) declined to entertain the matter between a couple whose marriage was solemnized in Kenya under the Kikuyu custom and ordered for the matter to be transferred to the chief magistrates' court for determination. His rationale was that - actions should be commenced in the lowest court having jurisdiction over

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the matter. The lower the court in the hierarchy of the court system the near the court is to the population of the country. Access is much easier in that regard. In the majority of cases it may be cheaper to litigate in the lowest court too. In the interim, pending reform of the Divorce Act, and perhaps for the guidance of the public, where in a divorce cause, the matrimonial assets in contention exceed the upper limit of the pecuniary civil jurisdiction of a magistrates' court that may amount to an exceptional circumstance to allow the filing of such a matter directly in the High Court.

Similar to the matter in the **Fredrick Kato(supra)** case, there is no matrimonial property in contention in the present matter. However, this Honorable court has taken cognizance of the fact that this matter is a backlog matter that has been pending in this court for almost three years. Furthermore, the matter was set down for formal proof and concluded and neither of the parties contested the jurisdiction of this Honorable court. This court also notes that transferring the same would occasion delay on the part of the parties which would in turn delay justice.

Nevertheless, **section 14(1) of the Judicature Act** provides that the High Court shall, subject to the Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the Constitution or this Act or any other law. Therefore, I find that there is nothing that bars this honorable court from determining this matter taking into account Article 21 (supra) which enjoins all people regardless of race to be treated with equality.

This issue is resolved in the affirmative.

# Issue Two: Whether the petition raises grounds for dissolution of the marriage between the Petitioner and the Respondent

Article 31(1) of the 1995 Constitution of Uganda provides that men and women of the age of eighteen years and above, have the right to marry and to found a family and are entitled to equal rights in marriage, during marriage and at its dissolution.

**Section 4 of the Divorce Act** provides the grounds under which a husband and wife can petition for divorce. However, our courts have pronounced themselves on the unconstitutionality of those grounds when in the case of **Uganda** Association of Women Lawyers and Ors Vs. Attorney General Constitutional **Petition (No. 2 of 200)** (FIDA) case. It was held that the provisions of Section 4 of the Divorce Act are null and void in as far as it required women to prove many grounds for divorce as opposed to men who were required to prove only one. The court considered this as discrimination on the basis of sex and in violation of the equality provisions under the 1995 Constitution of Uganda. It was the view of the Learned Justices that all the grounds of divorce mentioned in Section 4(1)

and 4(2) are available to both parties to the marriage. Counsel for the Petitioner ably cited the FIDA(case) and I agree with his submissions. In addition, he also cited the case of Dr. Specioza Wandera Kazibwe V Eng. Charles Nsubuga Kazibwe DC No. 3/2003 where it was held that a decree nisi can be obtained after proving to the satisfaction of the court the ground of adultery or cruelty.

Unfortunately, since the judgment in the FIDA case, there has not been statutory amendments to provide for this development, and the practice of courts therefore has been to adopt either the view of the Constitutional Court in FIDA case (supra) that all grounds are equally available to spouses who seek divorce.

In Habyarimana Vs. Habyarimana [1980] HCB 139 it was held that there is no definition of cruelty in the Divorce Act but case law has established that no conduct can amount to cruelty unless it has the effect of producing actual or apprehended injury to the Petitioners' physical and mental health. That there must be danger to life, limb or health, bodily or mental or reasonable apprehension of it to constitute cruelty.

In the instant case, the Petitioner alleged that the Respondent was physically and emotionally abusive towards her. The Petitioner alleged that apart from his abusive nature, the Respondent had also ceased to take care of the family and had resorted to a life-style of drunkenness and gambling. The Petitioner also alleged that the Respondent continued to physically assault her even when she was pregnant with the issue of the marriage.

The Petitioner also stated that the actions of the Respondent left her living in fear of the Respondent, feeling humiliated, sad and depressed. It is further alleged by the Petitioner in her witness statement that due to the abusive, cruel and violent character of the Respondent, she was forced to return to her parents' home in Sekiunga, Wakiso District.

The Respondent, despite several attempts at being served, did not put in a reply to these allegations. In the case of **Habre International Co. Ltd Vs. Ebrahim Alakaria Kassam and others SCCA No. 4 of 1999** it was held that whenever an opponent declined to avail himself of the opportunity to put his essential and material case, in cross examination, it follows that they believed that the testimony given could not be disputed.

Therefore, it is the finding of this court that the Respondent was cruel towards the Petitioner and this is a sufficient ground for dissolution of the marriage between the Respondent and the Petitioner. This issue is resolved in the affirmative.

Issue Three: Whether the sole custody of the issue of the marriage should be granted to the Petitioner

Article 31 (4) of the Constitution provides that it is the right and duty of parents to care for and bring up their children.

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Section 29 of the Divorce Act provides that "in dissolution of marriage, the court may at any stage of the proceedings make such orders with respect to the custody, maintenance and education of minor children of the marriage." Again, according to **Section 3 Children Amendment Act** the welfare principles and the children's rights set out shall be the guiding principles in making any decision with regard to children.

Article 3 of the United Convention on Rights of a Child provides in part as follows, "The best interest of children must be the primary concern in making decisions that may affect them..."

In the case of Pulkeria Nakagwa Vs. Dominiko Kiggundu [1978] HCB 310. Odoki Ag J (as he then was) stated that welfare in relation to custody of children should take into account all circumstances affecting the well-being and upbringing of the child and the court has to do what a wise parent acting for the best interest of the child ought to do.

I am aware that, although no parent is preferred in law, courts tend to grant custody of children of tender years to their mothers except where exceptional circumstances dictate otherwise.

In the present circumstances, the issue of marriage is currently about 3-4 years old. The Petitioner averred in her witness statement that on the birth of the child. the Respondent was not present and he did not meet any of her hospital expenses nor did he inquire about the health and well-being of the child. Vide paragraph 45 of the Petitioner's witness statement, it is alleged that on or about the 28^th December 2019, the Respondent at Kajjansi Police Station demanded for a DNA test of the issue of the marriage stating that the boy wasn't his son.

The Petitioner alleged that she is currently a single mother and incurs all the expenses of the child without the help of the Respondent. She further contended that the Respondent had not made any efforts to contact her or the child and that he has no ascertainable place of abode or form of employment. When court asked the Petitioner what would happen in case the Respondent wanted to see the child, she responded that she would not stop him from doing so.

The Respondent did not put in a reply to these allegations and as was held in the case of Habre International Co. Ltd (supra), whenever an opponent declined to avail himself of the opportunity to put his essential and material case, in cross examination, it follows that they believed that the testimony given could not be disputed.

Taking into account the welfare principle laid down in section 3 of the **Children's act (supra),** it is the finding of this court that the child should be in the custody of the Petitioner. The Respondent has not made any effort to show this court that he is interested in the child or his welfare. The Petitioner has demonstrated that she has been taking care of her child since he was born and continues to do so. In the premise, sole custody is granted to the Petitioner and this issue is resolved in the affirmative.

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# Issue Four: What remedies are available to the Petitioner.

**Section 29 of the Divorce Act** provides that "in dissolution of marriage, the court may at any stage of the proceedings make such orders with respect to the custody, maintenance and education of minor children of the marriage." Again, according to **Section 3 Children Amendment Act** the welfare principles and the children's rights set out shall be the guiding principles in making any decision with regard to children.

Section 76 Children Act (ass amended) provides that any person who has custody of a child including a parent, is permitted to make an application for a maintenance order against the father or mother as the case maybe.

In the Matter of Ayla Mayanja (an infant) Misc. Application No. 20/2003 **(unreported)** it was noted that the rights of a child as laid out both in the Constitution and the Children Act must be provided by the person entrusted with the parental responsibility of the child. This person must be a parent of a child or guardian. Apart from the psychological and emotional wellbeing, children are entitled to other rights that involve financial expenditure, e.g. school fees, shelter, Medicare, clothing, entertainment, etc.

It cannot be ignored that maintenance is always a joint responsibility of both parents. Despite whatever misgivings the Petitioner and the Respondent have with each other, the Respondent is still the father of the child and therefore has the responsibility to provide maintenance for the child.

The Petitioner prayed for damages for the Respondent's violent nature to be awarded for the benefit of the Petitioner and the child and also for any other relief as this court may deem fit. The Petitioner in her witness statement also gave a break-down of the expenses that she incurred on taking care of the child but she did not provide justification or proof of the same. In cognizance of **section 101 of the Evidence Act**, the Petitioner has not discharged the burden to prove that she indeed incurred such expenses. Where no evidence is adduced by the Petitioner apart from her averments, this court cannot merely rely on only the Petitioner's averments to award such reliefs.

In the case of Hon. George Patrick Kasaija V Fredrick Ngobi Gume & the E. C **EPA No. 68 of 2016** it was held that ordinarily costs followed the event and the award of costs was a matter of judicial discretion which had to be exercised judiciously.

In conclusion, the following orders and declarations are made for the complete resolution of this dispute:

1. The marriage between the Petitioner - Christelle Akonkwa Zihalirwa and the Respondent - Mardochee Bubala Byemba is hereby dissolved and a Decree Nisi should be issued to that effect.

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- 2. Custody of the issue of the marriage Ashuza Zihalirwa Willian is hereby granted to the Petitioner with visitation rights to the Respondent. - 3. The Respondent is hereby ordered to pay maintenance of UGX $1,000,000/$ = (One Million Uganda Shillings) per month to cover home expenses and amenities. - 4. The tuition/school fees of the child shall be shared equally by the Petitioner and the Respondent. - 5. Each party should bear its own costs.

I so order.

Jeanne Rwakakooko **JUDGE** 26/04/2023

This Judgment is delivered this 8th day of MAY , 2023