[2023] UGHC 225

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT JINJA

## DIVORCE CAUSE NO. 002 OF 2020

KAKUUMA JOEL ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

JULIET ALESO :::::::::::::::::::::::::::::::::::: **BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA**

# **NTAMBI**

#### **JUDGMENT**

#### **Background**

This Application is brought by Kakuuma Joel herein after referred to as the Petitioner for decrees that:

- a) The marriage of your Petitioner with the Respondent be dissolved. - b) Custody of the said Jessica Kirabira (daughter) be given to the Petitioner. - c) General damages for the loss of joy of marriage and its breakdown - d) Costs of this Petition and other incidentals there to be paid by the Respondent.

### **Brief facts**

It is the Petitioner's case that he and the Respondent got married on 26^th of January 2008 at Jinja Kingdom Hall where after they lived and cohabited together for close to 10 years at Wanyange-Jinja District, in a rented house and during the period thereof, they were blessed with one issue, to wit Jessica Kirabira who was at the time of filing this Petition, eleven years old. That in 2017, the Respondent deserted the Petitioner for no genuine reason whatsoever. The Petitioner contends that the Respondent also committed numerous repeated acts of cruelty to wit; constant insulting of the Petitioner through physical and verbal abuse, theft and/or disposal of matrimonial property. That the Petitioner on account of the above cruelty and desertion acts committed by the Respondent now sincerely believes that their marriage has irretrievably broken down and cannot be revived as the Respondent has no love left for the humble Petitioner. That the Petition is not prosecuted in collusion, connivance and/or condonation with the Respondent or with any person connected in any way with the proceedings and neither is the Petitioner guilty of any offences committed by the Respondent.

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The Respondent did not file an answer to the Petition after service was effected on her. (A copy of the affidavit of service is on record) and did not attend Court hearings nor mediation.

#### Representation

The Applicant was represented by Counsel Dhakaba Ishaq and Tumwebaze Phoebe of Dhakaba & Nkuutu Co. Advocates. The Respondent never appeared and neither was she represented.

At the hearing of the matter on 17^th January 2023, Counsel for the Petitioner moved Court for an order that the matter proceeds exparte since the Respondent did not file an answer to the Petition and did not appear in Court. Counsel relied on Order 9 rule 10 of the Civil Procedure Rules.

From the affidavit of service filed in Court on the 16^th January, 2023, Court was satisfied that the Respondent was served with the hearing notices but chose not to appear. It was on that basis that Court allowed the matter to proceed exparte. The Petitioner filed one witness statement which was admitted as his evidence in chief. Court directed the Petitioner to file written submissions on 24^th January 2023 which direction was complied with.

The Petitioner's evidence as can be discerned from the Petition and the sworn witness statement sworn by the Petitioner is that he married the Respondent on the 26^th January 2008 in Church under the provisions of the Marriage Act, Cap 251 of the Laws of Uganda. The couple lived together for close to 10 years at Wanyange - Jinja district, in their rented house during which period they were blessed with one issue Jessica Kirabira, now aged 13 years.

The Respondent started being violent both physically and verbally, she stole their household properties to wit a gas plate, the Respondent's wallet that had his personal documents and money amounting to UGX 400,000/= (four hundred thousand shillings)

It was the Petitioner's sworn evidence that in 2017, the Respondent deserted their home for no genuine reason, eloped with another man and left with their child Jessica Kirabira. After filing this Petition, the Petitioner learnt that the Respondent was cohabiting with that man and that she even gave birth to a baby girl. That the said man, with whom the Respondent eloped, had elder boys aged about 18 years and the Petitioner is worried that they might hurt and/or molest his daughter.

That the Respondent has deliberately denied the Petitioner access to their daughter from the year 2017 when she deserted their home until now.

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The Petitioner stated that due to the cruelty, desertion and adultery committed by the Respondent, the Petitioner now sincerely believes that the marriage has irretrievably broken down and nothing can revive it as the Petitioner has no love left for the Respondent.

## **Petitioner's submissions**

On desertion, Counsel for the Petitioner submitted that desertion is one of the grounds for divorce laid down under Section 4 of the Divorce Act, Cap 249. Counsel submitted that the ground can be relied on by both husband and wife and that it is distinctive ground on its own right upon which a decree Nisi may issue. Counsel referred to the case of Uganda Association of Women Lawyers & Ors Vs Attorney General cited with approval in Specioza Wandira Kazibwe Vs Eng. Nsubuga Kazibwe D. C No. 3 of 2003. Counsel relied on those authorities to submit that since the Respondent had deserted the Petitioner way back in 2017 without the Petitioner's consent and for no reasonable cause, the marriage had irretrievably broken down and nothing could revive it. Counsel prayed that the marriage be legally dissolved by this Honorable Court.

In respect of adultery, Counsel for the Petitioner defined adultery as the consensual sexual intercourse during the existence of a marriage between a married person and a person of the opposite sex not being the husband or wife of that married person. Counsel relied on the case of Bishop David Kiganda Vs Hadijjah Nasejje Kiganda (DC No. 42 of 2011). Counsel submitted that in paragraph 3 of the Petitioner's witness statement, the Respondent committed adultery in addition to other matrimonial offences. Counsel further submitted that the Respondent contracted another marriage with another man in Olemai village, Kaberamaido district and she gave birth to a daughter with that man. In support of this ground, Counsel relied on the case of Dr. Specioza Wandira Kazibwe Vs Charles Nsubuga Kazibwe, Divorce Cause No. 03 of 2003 for the preposition that adultery can be proved by the Petitioner adducing direct or circumstantial evidence to prove it. Counsel concluded his submission on this ground by submitting that the Respondent was an adulterous spouse which fact automatically leads to the dissolution of the marriage and prayed that the Petition be allowed.

Counsel for the Petitioner submitted that although cruelty has no definition in the Divorce Act, case law had made strides in defining the same. The Petitioner's Counsel relied on the case of Veronica Habyarimana Vs Habyarimana (1980) HCB 139 as cited in Lucas Bally Vs Florence Kiconco Divorce Cause No. 11 of 2008 where it was established that cruelty may amount to any conduct which has the effect of producing actual or apprehended injury to the Petitioner's physical and mental health. Counsel pointed out that in paragraph 6 of the

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Petition, the Petitioner contended that during the time of their marriage, the Respondent was abusive, rough, was always causing physical and verbal fights and disposed of matrimonial property to wit; house hold items and theft of the Petitioner's wallet and money worth UGX. 400,000/= (four hundred thousand shillings) which acts confirm that the Respondent committed the offence of cruelty and that the Petitioner has satisfactorily proved the same.

Counsel for the Respondent summarized his submissions and concluded that the Respondent intended to cease or dissolve the marriage owing to the fact that she already contracted another marriage and is happy which is elucidated in her unbecoming conduct of absconding the Court process thus frustrating the Petitioner from enjoying the marriage.

## **Issues**

- 1. Whether there was a valid marriage between the Petitioner and the Respondent. - 2. Whether the Respondent committed the matrimonial offences of desertion, cruelty and adultery. - 3. Whether the Petitioner is entitled to the reliefs sought.

## **Analysis**

## Issue 1

Whether there was a valid marriage between the Petitioner and the Respondent.

## **Resolution**

The Petitioner attached to the Petition and to his sworn witness statement a copy of his Marriage Certificate with the Respondent marked as Annexture "A" to prove that he legally married the Respondent in a Church marriage on 26^th January 2008 at Jinja Kingdom Hall. Since the Respondent did not challenge the Petitioner's evidence adduced by way of a Marriage Certificate, I find it that there was a valid marriage between the Petitioner and the Respondent.

## Issue 2

Whether the Respondent committed the matrimonial offences of desertion, cruelty and adultery.

Desertion is one of the grounds for divorce under Section 4 of the Divorce Act. It is a principle of law that desertion as a ground for divorce can be relied on by both husband and wife. It is a distinctive ground on its own right upon which a decree Nisi may issue. (Refer to Uganda Association of Women Lawyers (FIDA) & 5 Others Vs Attorney General Constitutional Petition No. 2/2003

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# cited with approval in Specioza Wandira Kazibwe Vs Eng. Nsubuga Kazibwe D. C No. 3 of 2003).

In the Petitioner's uncontroverted evidence on oath, the Petitioner stated that the Respondent deserted their home in 2017 with no genuine reason and eloped with another man. In corroboration with the affidavit of service filed on 6^th May 2021, the process server stated that he was directed to the residence of the Respondent by the LC Chairman of Olemai Village, Lwala Parish, Otuboi Sub county, Kalaki District., Mr. Leonard Edeku, where he served the Petition together with the Notice of commencement of mediation on the Respondent who declined service.

This proves that the Respondent stays in Olemai Village yet the Petitioner is a resident of Wanyange Village, Jinja District, miles away from Kalaki District. I am inclined to believe that the Respondent deserted the Petitioner since the two were staying in Wanyange until the Respondent left the matrimonial home and went to Olemai Village, Kalaki District.

Although Counsel for the Petitioner submitted on adultery, the ground was not raised in the pleadings. It only came up in the witness statements. I am alive to the principle that Court may found its decision on an unpleaded cause of action/issue provided that evidence is led on it by both parties to the dispute. (Refer to Geresom Rwambogo Vs Tereza Kyatifu CACA 0055 of 2009).

In this case, the matter proceeded exparte. The Respondent is not aware that this ground was raised. In the interest of justice, I will not condemn the Respondent on an issue she is not aware of. The ground thus fails for having not been pleaded.

The Petitioner also pleaded cruelty. Any conduct which has the effect of producing actual or apprehended injury to the Petitioner's physical and mental health amounts to cruelty. (See Veronica Habyarimana Vs Habyarimana (1980) HCB 139 cited with approval in Lucas Bally Vs Florence Kiconco Divorce Cause No. 11 of 2008).

It is the Petitioner's evidence that the Respondent was abusive, rough, always causing physical and verbal fights, continuous disposal of matrimonial property to wit; household items, and theft of money worth Ugx. 400,000/=. None of these was proved. However, the mere fact that the Respondent left the matrimonial home amounts to cruelty. I thus uphold the ground.

The Petitioner has proved desertion and cruelty. The two parties are no longer living together and there is no hope that the parties are planning to reconcile their differences. This is evidence that the marriage between the Respondent and the Petitioner has irretrievably broken down. The Petition is thus allowed.

Issue 3. Whether the Petitioner is entitled to the reliefs sought.

$166$ <br> $100$ <br> $100$ <br> $100$

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The Petitioner prayed for custody of their daughter Jessica Kirabira. Although the Petitioner's evidence is uncontroverted. Court is in doubt as to the paternity of the Petitioner. It is a general rule that the burden of proof lies on the party who asserts the affirmative of the issue or question in dispute. (Anglo Fabrics (Bolton) Ltd & Anor. Vs African Queen Ltd & Anor HCCS No 0632 of 2006).

In Griffiths Vs TUI UK Ltd [2021] EWCA Civ 1442, Nugee LJ stated in his leading judgement that, "I see nothing in the authorities that suggests that the obligation to assess the evidence falls away if it is uncontroverted. Uncontroverted evidence still has to be assessed to see what assistance can be derived from it, viewed in the context of the circumstances of the case as a whole."

I have perused the record and found nothing to prove that the parties here in have a child save for the Petitioner's contention. No birth certificate was attached to confirm that the Petitioner is the father of Jessica Kirabira. Without such evidence, I am unable to grant custody to the Petitioner.

In the final result, the marriage between the Petitioner and the Respondent is dissolved and the Petitioner is denied custody of Jessica Kirabira.

No costs awarded.

I so order.

**JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI** Delivered on 2^nd May 2023.