[2024] UGHC 1192

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CA-NO.86 0F 2020 (ARISING FROM KIRUHURA COURT DIVORCE CAUSE NO.004

### **OF 2018)**

ATUHAIRE KEN FLAVIA :::::::::::::::::::::::: APPELLANT/ **CROSS-RESPONDENT**

#### **VERSUS**

# 1. BAINOBWENGYE GEOFREY

# 2. BASIMIRWE RUTH :::::::::::::::::::::::::::::::::::: CROSS-APPELLANT

(Appeal and Cross Appeal arising from the judgement of the Magistrate Grade One in Divorce Cause No.004 of 2018)

## BEFORE: THE HON. LADY JUSTICE JOYCE KAVUMA

#### **JUDGEMENT**

#### **INTRODUCTION**

This is an appeal against the judgement and decree of the learned $[1]$ . Magistrate Grade One Kiruhura Court delivered on the 20^th of October 2020 in Divorce Cause No.004 of 2019 in which he granted a Decree Nisi and an award of compensation of $15,000,000/$ = to the appellant/petitioner.

### **BACKGROUND OF APPEAL**

The background of this appeal as gathered from the lower court $[2]$ . record of proceedings is briefly as follows:

The 1st cross-appellant Bainobwengye Geoffrey petitioned court in Divorce Cause No. 004 of 2019 on 27^th February 2019 under the Divorce Act against Atuheire Ken Flavia for a decree Nisi. On 19^th March 2019, Flavia filed a cross petition against Geoffrey Bainobwengye together with Basimirwe Ruth. On 20^th October 2020 the Learned Magistrate Grade One granted the Decree Nisi. He also gave no directions for the property claimed within the court's jurisdiction, awarded the respondent Atuheire Ken Flavia compensation of $15,000,000/$ =for her contribution, gave both parents custody of the minor child and ordered that they share the land owned in Kashari Mbarara District.

Atuheire Ken Flavia appealed the decision of the Learned Grade One Magistrate for orders that the parties equally share the piece of land at Kagando Cell, general damages, maintenance fee for the minor child by the 1^st respondent Geoffrey and costs of the appeal.

The respondents also made a cross appeal against the judgement of the Learned Magistrate praying that the judgement of the lower court ordering the 1^st respondent pay 15,000,000/= to the appellant be set aside and for costs of the appeal.

#### REPRESENTATION

The appellant/cross respondent Ken Flavia was represented by M/S Bwatota Bashonga & Co. Advocates, and the respondents were represented by M/S Ruyondo & Co. Advocates.

# **GROUNDS OF THE APPEAL**

- 1. The Learned Trial Magistrate Grade One erred in law and fact when he failed to properly evaluate the evidence touching property thus occasioning an injustice to the appellant. - 2. The Learned Trial Magistrate Grade One erred in law and fact when he made no direction or orders in relation to matrimonial property situate at kagando cell, Migina Parish, Rwemikoma Sub- County, Kazo District thus occasioning a miscarriage of justice. - 3. The Learned Trial Magistrate Grade One erred in law and fact when he failed or avoided to make orders against the $2^nd$ respondent yet she was sued in cross petition thus occasioning injustice to the appellant. - 4. The Learned Trial Magistrate Grade One erred in law and fact Shs. $\heartsuit$ when he only awarded compensation of ug. $15,000,000/$ = to the appellant thus occasioning injustice to the appellant. - 5. The Learned Trial Magistrate Grade One erred in law and fact when he made no orders ad to general damages prayed for in the cross petition - 6. The Learned Trial Magistrate Grade One erred in law and fact when he failed to quantify maintenance fee to be paid by the 1^st respondent in upbringing and caring for the minor.

## **DUTY OF COURT**

$[3]$ . This being a first appeal of a first appellate court to re-evaluate evidence. Following the cases of Pandya vs R [1957] EA 336; Kifamunte Henry vs Uganda Criminal Appeal No.10.1997, Bogere Moses and Another v Uganda Criminal Appeal No.1/1997, the Supreme Court stated the duty of a first appellate court in Father Nanensio Begumisa and 3 Others vs Eric Tiberaga SCCA 17/20 (22.6.04 at Mengo from CACA 47/2000 [2004] KALR 236 that the legal obligation on a 1st appellate court to re-appraise evidence is founded in Common Law, rather than the Rules of Procedure. The court further stated the legal position as follows: -

"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court must make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions."

I will therefore bear that principle in mind as I resolve the grounds of appeal in this case before me.

### **RESOLUTION OF APPEAL**

# Grounds 1, 2 and $4$

The Learned Trial Magistrate Grade One erred in law and fact when he failed to properly evaluate the evidence touching property thus occasioning an injustice to the appellant.

The Learned Trial Magistrate Grade One erred in law and fact when he made no direction or orders in relation to matrimonial property situate at kagando cell, Migina Parish, Rwemikoma Sub-County, Kazo District thus occasioning injustice to the appellant.

The Learned Trial Magistrate Grade One erred in law and fact when he only awarded compensation of ug. Shs. 15,000,000/= to the appellant thus occasioning injustice to the appellant.

Counsel for the appellant submitted that in the appellants cross- $[4]$ . petition against the respondents, all the matrimonial properties were listed but the 1st respondent Bainobwengye Geoffrey did not bring that out in his petition but instead concealed this information from the court. He also relied on Atuheire Ken Flavia's witness statement DW1 and DW2 Muhwezi Esau's witness statement to show that the appellant made significant contributions during the subsistence of the marriage warranting her a share in the properties. Counsel for the appellant argued that the Learned Magistrate Grade One ignored or avoided making the appropriate orders as to the property which would have been in conformity with Article 31(1)(b) of the 1995 constitution of the Republic of Uganda and the general practice of sharing matrimonial property in Uganda after the dissolution of marriage.

- $[5]$ . Counsel for the respondent in reply stated that on the issue of matrimonial property, the lower court noted that the appellant Flavia was living at her workplace in the school staff quarters as a teacher and thus had no contribution to the home in Kazo. He stated that there is a matrimonial home that the appellant can claim in Kashari since they acquired it together with the 1st respondent during the subsistence of the marriage, but the court could not deal with it since it was outside the jurisdiction of the court. Counsel further argued that the appellant could also pursue the property in Kashari Mbarara district for a share since the respondent had no problem with that. - $[6]$ . On Ground 4, Counsel for the appellant argued that the learned Magistrate Grade One gave an inadequate award of compensation because it did not amount to an equal sharing of the matrimonial property hence being an injustice to the appellant.

In response, counsel for the respondent stated that the trial magistrate put the principles of equality into consideration. That he relied on the case of Hajji Musa Kigongo HCCS No.295 of 2015 where it was held that the defendant who had lived with her husband for 26years was entitled to an interest in the property, relying on the doctrine of equity in Section 14 (c) of the Judicature Act. Counsel also argued that the appellant Flavia not only received compensation $of$ $shs$ 15,000,000/=but that the learned magistrate also guided that they share the property in Kashari.

### **Resolution**

$[7]$ . The learned trial Magistrate Grade One in his judgement stated that the evidence showed that the appellant Flavia and the 1^st respondent Geoffrey were living separate from their marriage to date. He also acknowledged that the contribution a spouse makes to a home can be seen in different ways according to court precedent.

It is trite law 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 according to Article 31 (1)(b) of the 1995 Constitution of the Republic of Uganda. Marriage alone does not grant property rights; a spouse must have contributed either in monetary terms or non-monetary terms during the subsistence of the marriage; (See: Muwanga versus Kintu High Court Divorce Appeal No. 135 of 1997, (Unreported); Rwabinumi Vs. Bahimbisomwe SC Civil Appeal No. 10 of 2009; and Kivuitu versus Kivuitu, [1990 – 19994] E. A. 270). This is the same principle applied in all cases, that a claim must be proved so such indirect contribution. cannot be assumed. The contribution that a spouse makes may however, also be indirect following the approach of the Court of Appeal of Kenya in Kivuitu v. Kivuitu, [1990 – 19994] E. A. 270 where it was found that the wife indirectly contributed towards payments for household expenses, preparation of food, purchase of children's clothing, organizing children for school and generally enhanced the welfare of the family and that this amounted to a substantial indirect contribution to the family income and assets thus entitling her to an equal share in the couples' joint property.

In a nutshell, the issue of what amounts to matrimonial property is not one which can be resolved with scientific precision as it has been held to depend on the circumstances of each case. (See Ambayo Joseph Waigo vs Aserua Jackline CACA no. 100 of 2015 per Kibeedi JA). Spousal contribution is a question of fact. It has been recognized by the courts that the evaluation of each spouse's contribution is no mean task. It has further been held that the mere fact that the evaluation of the respective share may be difficult for want of clear evidence does not justify the wholesale application of the maxim "equality is equity". That the court can draw inferences from the conduct of the spouses. Such contribution may include contribution towards purchase, mortgage repayments and so on. (See Pettitt vs Pettitt [1969] 2 ALLER 385 (HL)). In the case of Ambayo Joseph Waigo vs Aserua Jackline (supra) the court held that:

"In the circumstances, I would find that the acquisition of the suit property before the parties were formally married, and the property purchase agreement being written in the sole names of the appellant did not by themselves disqualify the contested property from being treated in the same manner as a matrimonial propely which parties acquire after marriage"

In the instant case however, the appellant adduced evidence of both direct and indirect contributions to the property in Kagando during their marriage that the 1st respondent failed to dispute. She stated that she and the 1st Respondent pooled resources from the family business and her salary and bought land at Kagando cell, Migina Parish, Rwemikooma sub-county, Kiruhura district. Further, that she and the 1st Respondent bought the adjacent pieces of land overtime in expansion of the land with her financial contribution and ideas. That she and the 1st Respondent moved to the land in 2003 and their last born was born there. She referred to a number of sale agreements which were never tendered in court and exhibited. The contributions that she made to the property where even made before the respondent brought another woman into the home. The Learned Magistrate in fact noted in his judgement that after the appellant and 1st respondent's marriage, the couple moved to Sheema, then moved to Kashari and finally settled in Kagando.

In his judgement, the learned Magistrate rightly recognized the appellants monetary and non-monetary contribution to the kagando home, none the less, I disagree with his award of compensation absent of a valuation of the property. He awarded UGX 15,000,000/=but did not disclose how he arrived at the said figure, either based on facts or the equal sharing of the matrimonial property that both parties contributed to.

It is therefore my finding, having considered the above evidence and the law on matrimonial property that the land at Kagando cell, Migina Kiruhura District constituted subcounty. Rwemikoma parish, matrimonial property at the time the petition was filed owing to the joint contribution to its purchase and joint efforts in its maintenance by the Appellant and 1st Respondent. It matters not in whose name the land is or was bought. (For this see Wachtel vs Wachtel [1973] 1 ALL ER

$\overline{9}$

838-9). The peoperty therefore ought to be divided equally between them given their joint contributions to acquiring and developing it.

Counsel for the respondent stated that the appellant can instead enjoy her share of the property in Kashari that is outside the jurisdiction of this Court but that would not be fair to the appellant who also made contributions to the Kagando home.

In conclusion, I allow Grounds 1, 2 and 4 of the appeal and I note that Counsel's prayer in the alternative cannot be granted given that the matrimonial properties have not been valued to ascertain the value of the matrimonial property.

#### Grounds 3 and 5 $\frac{1}{2}$

The Learned Trial Magistrate Grade One erred in law and fact when he failed or avoided to make orders against the 2nd respondent yet she was sued in cross petition thus occasioning injustice to the appellant.

The Learned Trial Magistrate Grade One erred in law and fact when he made no orders and to general damages prayed for in the cross petition.

Counsel for the appellant stated in his submissions that the lower $[8]$ . court made no reference or orders concerning general damages and alimony among other remedies, yet they were prayed for in the cross petition. That the Learned Magistrate also made no mention of the 2^nd respondent as far as orders are concerned, puzzling the appellant who was left with psychological torture from the respondent's actions. He relied on DW1 Atuheire Ken Flavia's witness statement in paragraphs 25-28 where she stated that the respondents committed adultery with

each other for about 8 years and have since produced two children. That the respondents took advantage of her absence from home whilst at school, illegally bringing the 2^nd respondent Basimirwe Ruth into their homestead, leaving her psychologically and mentally tortured and traumatised. Counsel for the appellant prayed for at least $15,000,000/$ = in general damages.

Counsel for the respondent replied that the orders in regards general damages are awarded at the discretion of court and that it is at court's discretion who pays the damages.

#### **Resolution**

- $[9]$ . In the lower court, the DW1, the appellant Ken Flavia stated that the 1^st respondent Geoffrey Bainobwengye committed adultery, chasing her from the home in Kagando Cell which they had acquired together. That he took advantage of the appellant's absence from the home and brought the 2^nd respondent into their home and chased the appellant away from the home. The respondent himself stated also that he has other children from another wife whom he is currently still living with. - In regards, the general damages, it is true that they are a $[10]$ . discretionary award by the judicial officer. They are also meant to atone for the inconveniences an aggrieved party would have suffered. In the instant case for the sake of harmony, given that this case has dragged on for long, I will not make an order as to general damages.

Therefore, I allow grounds 3 of the appeal and Ground 5 fails.

### Ground 6

The Learned Trial Magistrate Grade One erred in law and fact when he failed to quantify maintenance fee to be paid by the 1st respondent in upbringing and caring for the minor.

$[11]$ . Counsel for the appellant submitted that the order for maintenance fee for the minor child Rwabyabushozi Ronald has not been paid ever since the lower court judgement was delivered and that the non-quantification of the fee by the lower court aggravated the issue. That the learned Magistrate Grade One failed to specifically state the amount to be paid by the 1^st respondent towards the maintenance and care order for the child. Counsel prayed for at least $300,000/$ = monthly towards, food, medical and clothing excluding school fees and other school requirements or scholastic materials.

In response, counsel for the respondent submitted that the learned trial Magistrate Grade One ordered that both the appellant Ken Flavia and Bainobwengye Geoffrey provide care for the minor who is in custody of the appellant bearing in mind that the respondent is a farmer with no definitive monthly income while the appellant is a teacher. He stated that the contribution towards maintenance should be left to the parties to decide according to their capacities instead of choosing a specific figure. That the appellant is trying to extort the respondent of money in the name of maintenance.

## **Resolution**

It is trite law that when considering issues concerning children, $[12]$ . their welfare is paramount and must be the guiding principle, pursuant to Article 34 of the Constitution of the Republic of Uganda, Section 3(1) the Children Act, Article 3(1) of the United Nations Convention on the Rights of the child (which Uganda ratified in 1990); Article 4(1) of the African Charter on the Rights and the Welfare of the Child.

Parents hold the primary right to custody of their children and both parents have similar and equal rights regarding their right. (see: Rwabuhemba Tim Musinguzi Vs. Harriet Kamakune (Civil Application No.142 of 2009) [2009] UGCA 34); it is important that both parents stay in the lives of the children because their welfare is best served if both parents are involved in their upbringing.

The learned trial magistrate granted custody of the minor child to the appellant Ken Flavia and ordered that both parents provide care for the child. The financially capable parents must cater for the needs of their children irrespective of where the children are, and depending on the circumstances of each case in accordance with the welfare principle. In the instant case, the appellant testified that she is the head teacher of Rwemikyenkye Primary School in Kazo District and the 1^st respondent testified that he is a peasant farmer.

Furthermore, it is not mandatory for the court to specify the particular amount of money each parent should contribute towards the maintenance of the child. The learned trial magistrate did not err in not quantifying the maintenance fee. The order made by the learned Magistrate was for both parents to maintain the child, and this is obviously in accordance with their means.

Ground 6 therefore fails.

In the result, the appeal succeeds save for Grounds 5 and 6.

# **CROSS APPEAL**

The respondents filed a cross appeal in which the following grounds were raised $\cdot$ -

- 1. The Learned trial Magistrate Grade one erred in law and fact when he awarded compensation of Ugsh.15,000,000/ $=$ to the appellants/cross respondent when the $1^{\rm st}$ respondent/cross appellant had already given enough properties including cows, bibanja and enough money thus occasioning injustice to the respondents. - 2. The Learned trial Magistrate Grade one erred in law and fact when he ignored to bear in mind or be mindful about the fact that the appellant was given the former matrimonial home/kibanja at Kashari with all the properties theron thus occasioning injustice to the appellants. - 3. The Learned trial Magistrate Grade one erred in law and fact when he ignored to consider the fact that the appellant is a headteacher who earns a monthly salary and she is even better off than the $1^*$ respondent in terms of income and went ahead to award damages of $15,000,000/$ = thus occasioning injustice to the appellants.

It was prayed that:

a. The cross appeal be allowed and the judgement of the lower court ordering the respondent/cross-appellant to pay the appellant/cross-respondent $15,000,000/$ = be set aside.

b. The appellant/cross-respondent pay the costs of the appeal

## **Resolution of appeal**

Counsel for the cross-respondent stated that the cross appeal is $[1]$ . incompetent before court, in that it was filed out of time. Section 79 of the **Civil Procedure Act Cap 71** states that;

> "Except as otherwise specifically provided in any other law, every appeal shall be entered—

(a) within thirty days of the date of the decree or order of the court (b) within seven days of the date of the order of a registrar, as the case may be, appealed against; but the appellate court may for good cause admit an appeal though the period of limitation prescribed by this section has elapsed"

It is trite law that an appeal should be entered within 30 days of the date of the decree or order of the Court and if not done so, it will not be allowed. The exception of course is that the appellant shows the court good cause as to why the appeal should be admitted out of time.

In the instant case, the cross-appellants filed their cross appeal on 23^rd December 2020, more than 30 days after the decree of the court was given on 20^th October 2020. The cross-appellants did not give court any reason for filing out of time or good cause why the cross-appeal should be allowed and that amounts to an abuse of court process. In the result, the cross-appeal is dismissed.

I hereby order and declare as follows: -

- a) An order for the valuation of the matrimonial properties of Bainobwengye Geoffrey and Atuheire Ken Flavia at Kagando cell, Migina parish, Rwemikoma subcounty, Kiruhura District be conducted. - b) Upon valuation of the property land at Kagando cell Migina parish Rwemikoma subcounty, Kiruhura District, the $1^st$ respondent Bainobwengye Geoffrey and the appellant Atuheire Ken Flavia should each take 50% share of it. - c) Both Bainobwengye Geoffrey and Atuheire Ken Flavia provide maintenance and care for their minor child. - d) This being a family matter parties should bear their own costs for the appeal.

Dated this 18^th October 2024

..................

Joyce Kavuma

Judge