[2022] UGHCFD 28

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MAKINDYE (FAMILY DIVISION) DIVORCE CAUSE NO. 68 OF 2016 KAGANZI ELLY MWESIGWA ===================== PETITIONER VERSUS**

**SANDRA TIBAHURIRA MATILDA ================= RESPONDENT**

# **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA JUDGMENT**

#### **Introduction**

This judgment is in respect of a Divorce Petition filed in this Honorable court on 25th July 2016 by Kaganzi Elly Mwesigwa (hereinafter referred to as **"the petitioner"**) against his wife Sandra Tibahurira Matilda (hereinafter referred to as **"the respondent"**). The petitioner seeks for dissolution of the marriage between him and the respondent that was conducted at the Registry of Marriages in Kampala on the 16 th day of January 2004 on grounds of cruelty and adultery. The petitioner further seeks joint custody of the issues of the marriage whom he shall provide for and maintain, that each party provides for its maintenance and any other reliefs the Court deems fit.

#### **Representation**

At the hearing of the petition, the petitioner was in court and he was represented by Counsel Leonard Kasibante while the respondent was neither in Court nor was she represented.

#### **The petition**

The petition was filed in this honorable court on 25th July 2016. The respondent filed a reply to petition and a cross petition on 22nd September 2016. The matter was first heard on 3rd December 2018 but neither the petitioner nor his counsel were in court on that day. The matter was then adjourned to 6th February 2019.

When the matter came up for hearing on 6th February 2019, Counsel for the respondent intimated to Court that he had filed an application to amend the reply to the petition and the cross petition. Court then adjourned the matter to 18th March 2019 to hear the said application and the main suit.

On 18th March 2019 while hearing the application to amend the reply to the petition, Counsel for the respondent informed Court that they were in the process of filing a consent and that they intended to file it as soon as possible. The matter was then adjourned to 3rd April 2019. However, no action was taken by either party and/or their Counsel in furtherance of this matter. Not even the consent was filed. The matter was then cause-listed in a session meant to clear backlog and the same was fixed for mention on 11th April 2022. Counsel for both parties were called by Ms. Nuwatwine Patricia (clerk) and informed of the said date.

Thus, when the matter came up for mention on 11th April 2022, Counsel for the petitioner informed court that he had been in touch with Mr. Akampurira (Counsel for the respondent) but on the said date, he was not picking his calls. A phone call was made to Mr. Akampurira by the clerk while in court and he agreed that the matter should be adjourned to 26th April 2022.

On 26th April 2022 when the matter came up for hearing, Mr. Akampurira was absent. Counsel for the petitioner informed court that he had drafted a consent judgment and sent it to Mr. Akampurira but he had not received any response from him and neither was he picking his calls. Counsel for the petitioner then prayed for an adjournment on the basis that his client who was in America would be in Uganda between the 1st and the 15th day of June 2022. Court adjourned the matter to 1st June 2022 and gave filing schedules for the Joint Scheduling Memorandum, Trial Bundle and Witness Statements. Court further directed Counsel for the petitioner to inform Mr. Akampurira of the said schedules.

The matter came up again for hearing on 1st June 2022 and Mr. Akampurira was still absent despite the fact that he was served with a letter notifying him of Court's schedules. The said letter and an affidavit of service showing proof of service were filed on Court's record. Counsel for the petitioner prayed for Court to allow the matter to proceed ex parte under Order 9 Rules 20 of the Civil Procedure Rules (hereinafter referred to as the CPR) and that the cross petition is dismissed under Order 9 Rule 22 and Order 17 Rule 4 of the CPR. Both prayers were granted by Court. The matter then proceeded ex parte with Court being the only cross-examiner of the petitioner.

#### **Facts**

The petitioner and the respondent got married vide a civil marriage and the same was conducted at the Registry of Marriages in Kampala on the 16th day of January 2004. During the subsistence of the said marriage, three issues namely: Nigel Kaganzi (aged twenty), Nichole Kaganzi and Nichola Kaganzi (both aged seventeen) were begotten. However, during their time of cohabitation as husband and wife, the respondent is said to have became cruel to the petitioner, she would commit acts of infidelity, she humiliated the petitioner and also totally neglected the children. As a result of these irreconcilable differences, the petitioner and the respondent failed to live together to the extent that they concluded a separation agreement that has seen them live apart since 2012.

It is against that background that this petition was filed in this Honourable Court and the petitioner prays that the marriage is dissolved, the petitioner and the respondent are granted joint custody of the minor issues to marriage whom he shall provide for and maintain, that each party provides for its maintenance and any other reliefs the Court deems fit.

## **Issues**

- *1. Whether there exist grounds for divorce;* - *2. Whether there exists matrimonial property; and* - *3. What remedies are available to the parties?*

# **Resolution of issues**

## **Issue 1:** *Whether there exist grounds for divorce.*

Section 4 of the Divorce Act provides the grounds under which a husband and a wife can petition for divorce. However, our courts have pronounced themselves on the unconstitutionality of those grounds in the case of *Uganda Association of Women Lawyers and Others Versus Attorney General Constitutional Petition No. 2 of 2003*. In this case, it was held that Section 4 of the Divorce Act is 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 the Republic of Uganda. It was the view of the learned Justices that all grounds of divorce mentioned in Section 4 (1) and (2) of the Divorce Act are available to both parties to the marriage.

Counsel for the petitioner in his submissions raised two grounds for dissolution of the marriage between the parties to wit; cruelty and adultery.

On the ground of cruelty, Counsel for the petitioner submitted that the conduct of the respondent abandoning their little children in the house both in Kampala and Rwanda while the petitioner was away from home on work travel coupled with neglect and resorting to taking alcohol in bars as complained of by the petitioner and after constantly humiliating and provoking the petitioner is a "grave and weighty" one that led the petitioner conclude that he could no longer live with the respondent. That it eventually led to the spouses living separately and apart since June 2012 culminating into a separation agreement that was executed on 23rd December 2015.

Cruelty in the case of *Sarah Kiyemba Versus Robert Batte Divorce Cause No. 127 of 2018*, was defined as willful and unjustified conduct of such character as to cause danger of life, limb, health (bodily or mental) or as to give rise to reasonable apprehension of such danger.

As already observed, neither the respondent nor her Counsel attended Court during the hearing of this matter despite the fact that her Counsel was given sufficient notice of the hearing dates since the respondent resides abroad. Counsel for the petitioner citing the case of *George Kiggundu Versus Attorney General H. C. C. S No. 386 of 2014* submitted that unchallenged or uncontroverted evidence will be deemed admitted and court can rely on the same. In absence of any other evidence, it is therefore presumed that all the facts as stated in the petitioner in his witness statement are accepted by the respondent. Consequently, this petition binds the respondent. This court presumes that the respondent admitted all the facts as contained in the application. (*See: Samwiri Mussa Versus Rose Achen [1978] HCB 297 and Ayisa Nassuna & Anor Versus Commissioner Land Registration High Court (Land Division) Miscellaneous Cause No. 07 of 2020)*.

In light of the above, I find that the ground of cruelty has been sufficiently proved by the petitioner. The conduct of the respondent to wit: abandoning and neglecting the children in the house while the petitioner was away on work travels, continuous and recklessly taking alcohol in bars even when the petitioner complained of the same for which she would thereafter humiliate and provoke the petitioner is proof of cruelty as it amounts to conduct that amounts to emotional torture and would cause danger to the petitioner's mental health.

On the ground of adultery, counsel relying on paragraph 12 of the witness statement submitted that the respondent's admission of this conduct/ground is succinctly laid out and unchallenged. Paragraph 12 of the petitioner's witness statement reads: *"It was during this period that the respondent/cross-petitioner engaged in extra-marital affairs with numerous persons to which she admitted after I confronted her with the fact."*

In the case of *Kironde Versus Kironde Divorce Cause No. 6 of 2001*, it was held that adultery can be proved by a party adducing evidence to prove the same or by the adulterer admitting the fact of adultery or by circumstantial evidence. [Emphasis Mine] In the instant case and in absence of the respondent's rebuttal and/or evidence, her admission to being adulterous as per paragraph 12 of the petitioner's witness statement (regurgitated above) is enough to prove the said ground of adultery.

Therefore, issue 1 is resolved in the affirmative. There exist grounds for dissolution of the marriage between the parties to wit: cruelty and adultery. ## **Issue 2:** *Whether there exists matrimonial property.*

Before I can resolve this issue, it should be noted that the petitioner never raised this issue. The issue of matrimonial property was raised by the respondent/crosspetitioner in paragraph 10 of the cross-petition which was dismissed for reasons already stated above.

However, without prejudice to the above, paragraph 10 of the cross-petition stated thus:

*"That the cross-petitioner has contributed to acquisition of family property to wit: Plots of land in Sonde, with 5 semi-detached houses, matrimonial home in Itendero, Bushenyi and other properties and shall contend that she is entitled to a share in the said property.*

The petitioner in his witness statement addressed what he titled "alleged matrimonial" that was contained in paragraphs 24 to 37 and therein he stated thus: *"Sometime in the year 2006, during the pendency of our marriage, using my own funds, I solely acquired, through the purchase, two (2) adjoining plots of land comprised in Kyaggwe Block 92 Plots 861 and 862 at Namwezi commonly known as Sonde, Mukono District. At the time of acquiring this property, the respondent/cross-petitioner was gainfully employed, initially at Airtel Uganda and then at Rwandetel in 2007 as a customer care manager but did not financially contribute anything... Sometime during the month of June 2009, I commenced construction of a semi-detached building for rental purposes... Sometime in February 2019, due to financial constraints coupled with the high cost of living in the USA where I live with the children and being the sole provider to our children, I decided to dispose of by way of sale the said two plots of land comprised of semi-structured rental houses in order to provide for their educational and other needs... I solely acquired and developed the said lands without the respondent's/crosspetitioner's contribution, whatsoever despite her being in gainful employment. It was my private and separate property that I, by right, owned in my individual names. It was therefore not matrimonial property subject to be shared with the respondent/cross-petitioner upon divorce. It* *is not true that I own a matrimonial home in Itendero, Bushenyi as alleged by the respondent/cross-respondent."*

What amounts to matrimonial property was determined in the case of *Julius Rwabinumi Versus Hope Bahimbisomwe SSCA No. 10 of 2009* which cited with approval the approach adopted by Bbosa J (as she then was) in *Muwanga Versus Kintu High Court Divorce Appeal No. 135 of 1997 (unreported).* Justice Bbosa observed thus:

*"Matrimonial property is understood differently by different people. There is always property which the couple choose 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 choose to call home and which they jointly contribute***…** *what amounts to contribution to earn a spouse a share in the property may be direct and monetary or indirect and non-monetary."*

In the instant case and as already noted above, it was the petitioner's unrebutted testimony and evidence that he solely acquired the property, separately from the respondent in 2006 which was after their marriage. There is no evidence that the respondent made either direct or indirect contribution in the acquisition of the said property to qualify to be matrimonial property. Therefore, I find that there was no matrimonial property acquired during the substance of the marriage between the petitioner and the respondent. There was no property acquired during the said marriage which the couple chose to call home and jointly contributed to. The petitioner at paragraph 31 of his witness statement averred that in June 2009, he commenced construction of a semi-detached building for rental purposes. [Emphasis Mine] There was no contribution whatsoever from the respondent, whether direct or indirect, monetary or non-monetary or otherwise.

Also during the hearing of the matter on 1st June 2022, I cross-examined the petitioner about the said property comprised in Kyaggwe Block 92 Plots 861 and 862, land at Sonde, Mukono District and he stated that he bought the same while he was still married to the respondent but she never made any financial contribution and that they never lived on the property with the respondent. I also had a look at the original documents pertaining to that land and they were in tandem with the photocopies in the Trial Bundle, specifically, PE3 and PE5 which were tax Invoice/Receipt from Jomayi Property Consultants bearing the name of the petitioner and acknowledging payment from the petitioner for the said land.

More so, I also had the opportunity of cross examining Ms. Proscovia Naikoba Katawera to whom the petitioner sold the above stated property and she confirmed that she bought the said land from the petitioner in February 2019 and it contained 5 incomplete semi-detached houses. I find all the above evidence satisfactory to prove the fact that the said property belonged solely to the petitioner and that it did not constitute matrimonial property.

Therefore, issue 2 is resolved in the negative. No matrimonial property existed during the subsistence of the marriage between the petitioner and the respondent that could warrant a sharing of the same.

## **Issue 3:** *What remedies are available to the parties?*

Apart from dissolution of the marriage, the petitioner prayed for orders that joint custody of the issues of the marriage whom he shall provide for and maintain be granted, that each party provides for its maintenance and any other reliefs the Court deems fit.

On the issue of joint custody of the children, Counsel for the petitioner relied on Article 31 (4) and Article 34 (1) of the Constitution of the Republic of Uganda; and the case of *Otto Methodius Pacific Versus Edyline Sabrina Pacific, Civil Appeal No. 88 of 2013* which provide for the rights of a child to grow up in a family, highlight the duty of both parents in the upbringing of their children and emphasize the welfare principle in cases concerning children.

It was the petitioner's testimony and Counsel's submission that the petitioner stays with all the children and still provides for all their basic needs to date including Nigel Kaganzi who is already an adult but is still attending University in his 3rd year at Kennesaw State University in Georgia. Nicole Kaganzi and Nichola Kaganzi are aged 17 and the both of them attend North Cobb High School in Georgia.

In the circumstances, I find that the petitioner has fulfilled his parental role as the father of the children and that he is not against the respondent having custody of the children. The petitioner is also willing to continue maintain and providing for the children solely. Also, no exceptional circumstance has been proved by the petitioner that would have disqualified the respondent from having custody of the children. In the premises, joint custody of the children is granted.

The petitioner also prayed that each party provides maintenance for themselves. I find that both parties are already doing this. Both of them are gainfully employed, and they seem to have moved on with their lives.

The petitioner did not pray for costs. As such, no costs have been awarded to either party in this petition.

In conclusion therefore, the following Orders are made:

- 1. that a Decree Nisi dissolving the civil marriage between Kaganzi Elly Mwesigwa and Sandra Tibahurira Matilda that was contracted on 16th January 2004 at the Registry of Marriages in Kampala is hereby entered; - 2. that there shall be joint custody of the children that is, Nicole Kaganzi and Nichola Kaganzi by the parties until they attain majority age according to the law of Uganda. Nigel Kaganzi is intentionally excluded from this Order because he is an adult according to the laws of Uganda; - 3. that without prejudice to the above, the children shall primarily be staying with the petitioner. The respondent shall have access and visiting rights to the children whenever it is convenient to do so. She is also allowed to take the children and spend quality time with them at her home as long as it does not prejudice the children's welfare especially, their education; - 4. that the petitioner shall maintain the children. The respondent shall maintain the children in terms of providing shelter and food and any other thing that could be a necessary for the time that they are in her custody; and - 5. that no costs are awarded to either party.

I so order.

## **Dated at Kampala this 24th day of August 2022.**

**………………………………**

Alice Komuhangi Khaukha

## **JUDGE**

24/08/2022