[2025] UGHCFD 41

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) CIVIL APPEAL NO. 0026 OF 2023 (ARISING FROM DIVORCE CAUSE NO. 001 OF 2023-CHIEF **MAGISTRATES COURT NABWERU)**

KABURURA MAHAD ::::::::::::::::::::::::::::::::::: **VERSUS** <table>

NAKITENDE EDITA ::::::::::::::::::::::::::::::::::::

**BEFORE HON. JUSTICE JOHN EUDES KEITIRIMA**

#### **JUDGMENT**

1]. The appellant being dissatisfied and aggrieved by the Judgment and orders of the Magistrate Grade One of the Chief Magistrates Court of Nabweru at Matugga delivered on the 20^th day of September 2023 vide Divorce Cause No. 1 of 2023 appeals against part of the judgment and orders therein on the following grounds; -

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- $(i)$ That the trial Magistrate erred in law and fact when she held that the property which the petitioner solely acquired was matrimonial property. - $(ii)$ That the trial Magistrate erred in law and fact when she omitted to apportion to the petitioner a share of the matrimonial home. - That the trial Magistrate erred in law and fact when she ordered $(iii)$ a distribution of the property after declaring the transaction through which it was purchased as null and void and ordering the petitioner to refund the purchase price. - That the trial Magistrate erred in law and fact when she failed to $(iv)$ properly evaluate the evidence on record concerning acquisition, ownership and distribution of the appellant's property. - That the trial Magistrate erred in law and fact when she declined $(v)$ to grant equal custody rights to the petitioner and the respondent.

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2]. The appellant is seeking Court to quash the judgement and orders of the trial Court and is seeking for the following orders; -

- A declaration that the respondent is not entitled to a share on $(i)$ land solely purchased by the petitioner/and the proceeds of sale of the two acres of land at Butalangu. - A declaration that the petitioner is entitled to a share in the $(ii)$ matrimonial home. - A declaration that the property at Watuba-Kawanda which $(iii)$ the petitioner solely acquired does not form part of the matrimonial property. - A declaration that the petitioner and the respondent are $(iv)$ entitled to equal custody rights over the children. - That the appeal be allowed with costs. $(v)$

The appellant and the respondent filed written submissions the details of which are on record and which I have considered in determining this appeal.

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3. An appellate Court has the duty to reappraise evidence of the trial court and reach its own decision.

I will resolve the grounds of appeal in the order the appellant submitted on them.

Grounds 1 and 4: - That the trial Magistrate erred in law and fact when she held that the property which the petitioner solely acquired was matrimonial property.

That the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence on record concerning acquisition, ownership and distribution of the appellant's property.

#### **Appellants Submissions.**

4. The appellant cited Section 80 of the Civil Procedure Act Cap 282 which empowers the first appellate Court to scrutinize and re-evaluate the evidence on record and come to its own decision. The appellant also cited the case of Fr. Narsensio Begumisa & others versus Eric Tibebaga S. C. C. A No. 17 of 2002 to buttress his submissions.

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5]. The appellant submitted that on page 16 of the record of proceedings under paragraph 38, the appellant stated that he had a home in Watuba Kasangati and another one in Kawanda. That the petitioner did not state anywhere in her answer to the petition or by any other evidence that she knows about the said properties and neither did she state anywhere that she made a contribution towards their purchase.

6]. The appellant contended that he bought two acres of land at Butalangu in his names and those of the four issues of the marriage and attached copies of the agreements under paragraph 10 of the petition. That the respondent did not adduce any evidence to prove that she made a substantial contribution towards the purchase or development of the said properties.

7]. The appellant submitted that on page 8 of the judgment, the trial Magistrate held that "the petitioner shall retain the homes at Watuba and Kawanda and one acre of the two acres at Butalangu as her share of the matrimonial property".

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8]. The appellant contended that the trial Magistrate having declared that the transaction in which the matrimonial home was sold was null and void due to lack of spousal consent, could not go ahead to apportion the proceeds for the land at Butalangu to the respondent.

9]. The appellant cited the case of Julius Rwabinumi versus Hope Bahimbisomwe - S. C. C. A No. 10 of 2009 where it was held that matrimonial property is understood by different people. There is always property which the couple chose to call home, and there may be property which may be acquired separately by each spouse before and after the marriage. Then there is property which a husband may hold in trust for the clan. That property to which each spouse should be entitled is that property which the parties chose to call home and which they jointly contributed to.

10]. That it was further held in the said case that a spouse can own individual property as per Article 26 of the 1995 Constitution of the Republic of Uganda. That Article $31(1)$ (b) of the Constitution guarantees equality in treatment of either wife or husband at divorce and that does

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not mean that all property either individually or jointly acquired before or during the subsistence of the marriage should in all cases be shared equally upon divorce. The appellant also cited the case of *Muwanga* versus Kintu - Divorce Appeal No. 135 of 1997 to buttress his submissions.

11]. The appellant contended that the respondent did not lead any evidence at the trial to prove that she may any contribution towards the purchase or development of the said properties.

### **Submissions by the Respondent.**

12]. The respondent submitted that the trial Magistrate adequately distributed the matrimonial properties between the parties. That the parties had their residential home situated at Lwadda "A" Matugga in Wakiso District and they both lived at this home along with their four issues hence making it their matrimonial home.

13]. The respondent stated that later the appellant sold the matrimonial home without the consent of the respondent and used the proceeds to buy another plot of land in Butalangu measuring two acres. That in her

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judgment the trial Magistrate in her distribution of the matrimonial home stated on page 8 that "The respondent shall not vacate the matrimonial home at Matugga, Lwadda "A" Wakiso District and shall also retain one acre of the two acres at Butalangu as her share of the matrimonial property. The petitioner shall retain the named homes at Watuba and Kawanda and one of the two acres at Butalangu as his share of the *matrimonial property*".

14]. The respondent further submitted that the trial Magistrate never made an error in law and fact in the distribution of the matrimonial property and that the appellant has no interest in the matrimonial home because he had sold it to another person.

15]. The respondent contended that the sale by the appellant of the matrimonial home without the consent of the respondent was done illegally. The respondent cited Section 39(3) of the Land Act Cap 236 which provides that "for purposes of subsection (2), the spouse in every case have a right to use the family land and give or withhold his or her

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consent to any transaction referred to in Section 40 which may affect his or her rights".

16]. Subsection (4) of the said section defines family land to mean land on which is situated the ordinary residence of a family. That the fact that the appellant used the proceeds from the sale of the family land to purchase the land at Butalangu gives her an interest in the land too.

17]. The respondent further submitted that the trial Magistrate did not error in law and fact when she gave the matrimonial home entirely to the respondent because she was given custody of the children during their school days. That unlike the appellant, the respondent's home is the matrimonial home.

The respondent prayed that the said grounds of appeal should be dismissed for lack of merit.

## Decision of Court on Grounds 1 and 4.

18]. An appellate Court has the duty to reappraise the evidence of the lower Court and arrive at its own conclusion, see *Fr. Narsensio Begumisa* & others versus Eric Tibebaga-S. C. C. A No. 10 of 2002.

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19]. It was held in the case of Julius Rwabinumi versus Hope **Bahimbisomwe-S. C. C. A** No. 10 of 2009 which adopted the holding in Mwanga versus Kintu – High Court Divorce Appeal No. 135 of 1997 that "*Matrimonial property is understood differently by different people.* There is always property which the couple chose to call home. There may be property which may be acquired separately by each spouse before or after marriage. Then there is property which a husband may hold in trust for the clan. Each of these should in my view be considered differently. The property to which each spouse should be entitled is that property which the parties chose to call home and which they jointly contributed to".

20]. In her judgment, the trial Magistrate stated that the parties' home was in Lwadda "A" Matugga and the same had been bought in 2013 during the subsistence of their marriage. Evidence had been adduced that the appellant had sold the home and bought two acres where he was now rearing goats.

10 | Page 21]. The appellant also has another home where the children were living with him. The house the respondent is staying in now is what she called home when she was still staying with the appellant. It was an agreed fact during the hearing of the case that the matrimonial home was in Matugga-Lwadda A.

22]. In her witness statement the respondent contended that as a wife to the appellant she worked in various businesses they set up as a family and in so doing contributed to the raising of the funds that purchased the Kibanja and the building of their matrimonial home.

23]. The respondent stated that she worked with the appellant in a supermarket at Kalerwe and Nsambya Kirombe. The respondent also stated that in 2013 they had a business in Kikuubo Kampala where they were involved in selling lingerie garments. The respondent also stated that they had a small wholesale shop at Matugga-Mabanda. The respondent contended that she never gave her consent when the appellant purportedly sold the home.

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24]. In her judgment, the trial Magistrate held that the purported sell of the land was illegal, null and void for lack of spousal consent.

Section 40 of the Land Act Cap 236 provides that; -

- "A person shall not $(1)$ - sell, exchange, transfer, pledge, mortgage or lease any $(a)$ family land; - enter into any contract for the sale, exchange, transfer, $(b)$ pledge, mortgage or lease of any family land; or - give away any family land inter vivos, or enter into any $(c)$ other transaction in respect of family land, except with the prior consent of his or her spouse."

25]. Section 39(4) of the Land Act Cap 236 defines "family land" as land,

- on which is situated the ordinary residence of a family; $(a)$ - on which is situated the ordinary residence of the family and $(b)$ from which the family derives sustenance.

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- which the family freely and voluntarily agrees shall be treated $(c)$ to qualify under paragraph $(a)$ or $(b)$ ; or - which is treated as family land according to the norms, culture, $(d)$ customs, traditions or religion of the family;"

26]. "Ordinary residence" means the place where a person resides with some degree of continuity apart from accidental or temporary absences; and a person is ordinarily resident in a place when he or she intends to make that place his or her home for an indefinite period;

27]. "Land from which a family derives sustenance" means -

- land which the family farms; $(a)$ - land which the family treats as the principal place which provides $(b)$ the livelihood of the family; or - land which the family freely and voluntarily agrees shall be $(c)$ treated as the family principal place or source of income for food.

The trial Magistrate therefore rightly held that the sale of the matrimonial home was illegal without the respondent's consent.

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28]. With regard as to how the matrimonial home should be apportioned in divorce; Article 31(1) of the Constitution provides that " $A$ man and a woman are entitled to marry only if they are each of the age of eighteen years and above and are entitled at that age-

- to found a family; and $(a)$ - to equal rights at and in marriage, during marriage and at its $(b)$ dissolution"

29]. In the case of Ambayo Joseph Waigo versus Aserua Jackline C. A. C. A No. 0100 of 2015 citing the case of PNN versus ZWN Court of Appeal of Kenya No. 12 of 2014 which had the occasion to consider Article 45(3) Constitution of the Republic of Kenya which is in pari material with Article 31(1) (b) of the 1995 Constitution of Uganda, it was held that the equality of spouses guaranteed by the Constitution is not synonymous with equal proprietary entitlement and does not give an automatic half share in matrimonial property to a spouse whether or not he or she earns it. That propriety entitlement of a spouse is dependent on his or her contribution towards the matrimonial property.

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30]. It was further held in the said case that spousal contribution to the matrimonial property can be direct or indirect; monetary or non-monetary provided it enables the other spouse to either acquire or develop the property in question. Spousal contribution is a question of fact.

31]. In my view the division of matrimonial property cannot be a precise mathematical exercise. The marriage institution is not a commercial entity where people will always keep evidence of contribution say in purchases or services for purposes of audit. There is usually mutual trust between spouses that they may not keep evidence of contribution as at that point they are not envisaging a divorce. It therefore becomes difficult for a spouse to prove her or his indirect contribution to the matrimonial property.

32]. It was held in the said case citing the case of *Pettitt versus Pettit* (1969) 2 All ER 285 (HL) that the extent of the share of each spouse is a question of fact in each case, and the mere fact that evaluation of the respective shares may be difficult for want of clear evidence does not

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justify the wholesale application of the maxim "equality is equity". The Court can draw inferences from the conduct of the spouses.

33]. In her evidence the respondent stated that she used to participate in the family businesses that enabled the appellant to acquire the matrimonial home. This evidence was not controverted by the defendant. I will grant the appellant 60% of the value of the matrimonial property(home) situate at Lwadda "A" Matugga in Wakiso(where the respondent currently stays) and the respondent 40%. This will however be after the last child has completed their education as the respondent was granted joint custody of the children and it is in the best interests of the children that their mother has a home where she can be with them.

So the appeal partly succeeds on ground 1 but succeeds on ground 4. This also covers ground 2 which in a way is similar to ground 4 of the appeal which succeeds as well.

Ground 3: - The trial Magistrate erred in law and fact when she ordered a distribution of property after declaring the transaction

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through which it was purchased as null and void and ordering the petitioner to refund the purchase price.

34]. The appellant led evidence to show that he had used the proceeds from the sale of the matrimonial home to purchase two acres of land at Butalangu which he was using to rear goats.

35]. Since the sale of the matrimonial home had been nullified and the appellant ordered to refund the money, it implies that he could only recover the money by selling the two acres of land he had bought at Butalangu to refund the money to the purchaser of his matrimonial home. The two acres of land were not therefore available for distribution. The trial Magistrate therefore erred in law and fact to apportion part of this land to the respondent which was bought as a result of the illegal sale by the appellant of the matrimonial home. The appellant could not approbate and reprobate. This ground of appeal succeeds.

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Ground 5: - The trial Magistrate erred in law and fact when she declined to fraction equal custody rights to the Petitioner and Respondent.

36]. In her judgment, the trial Magistrate granted joint custody of the children to the parties. The appellant was to have custody during school times and the respondent was to have custody during holiday times. Both parties were to have visitation rights and access to the children with the knowledge of the other.

37]. The appellant faulted the said arrangement on grounds that he did not have enough time to bond with the children since he was granted custody during school days and the respondent was granted custody for the entire holiday time.

38]. The appellant contended that the children were teenagers who are in a boarding section and by the Court giving the appellant custody during school time it amounted to not being given custody during school time.

The appellant proposed that the respondent takes the first and second term holidays while the appellant takes the third term holidays.

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39]. On the other hand the respondent submitted that she was given custody of the children during their school holidays because it was in their best interests. The respondent contended that since the time the appellant took the children into his custody in 2020 there has been a noticeable delay in their education. That the trial Magistrate also ruled that the respondent ensures that the children are well catered for and their basic needs met by her and was best suited to cater for the children.

40]. It was held in the case of Otto Methodius Pacific versus Edyline Sabrina Pacific - C. A. C. A No. 88 of 2013 citing the Singapore case of CX versus CY 2006, 4 LRCI that it is crucial that Courts recognize and promote joint parenting so that parents can continue to have a direct involvement in the child's life.

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

Article 34(1) of the Constitution provides that "subject to the laws enacted in their best interests, children shall have the right to know and be cared for by their parents and those entitled by law to bring them up."

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42]. The appellant was given custody of children during school days. It means that he has unlimited access to the children even when they are at school. In event that the children get short term holidays in the middle of the school term they would go to the appellant's home. In my view this is ample time for the appellant to still bond with the children.

43]. It was the respondent's evidence that the appellant picked the children in March 2020 and took them to a place she did not know and had not seen her children at the time she testified in the trial Court for more than three years. It is actually the respondent who needs more time to bond with the children than the appellant. This ground of appeal therefore fails.

Considering that this appeal partially succeeded and partially failed and also considering that both parties were granted joint custody of the children I will give no order as to costs.

Hon. Justice John Eudes Keitirma.

## 4/07/2025