[2025] UGCA 27

## ⁵ THE REPUBLIC OF UGANDA IN THE COURT OFAPPEAL OF UGANDAAT KAMPALA CIVILAPPEAL NO. 218 OF 2015

# (Coram: Cheborion, Gashirabake and Mugenyi, JJA) JOHN MARY TUMWESIGYE MBUSA: : : : : : : : : : : : :: : :APPELLANT

#### VERSUS

### JUDITH TUKEI MBUSA: : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : : :RESPONDENT

(Appeal from the decision of the High Court of Uganda at Nakawa before EMwondha, J (as she then was) in Divorce Appeal No. 1 of 20ll dated lgth January,20l2.)

### JUDGMENT OF CHRISTOPHER GASHIRABAKE JA

t1l This appeal is from the judgment and orders of the High Court before Faith Mwondha, J (as she then was) in Divorce Appeal No. 1 of 201 1 dated 1 9'h January 2012.

### Background

12) In 2010, the respondent filed, in the Chief Magistrate's Court atNakawa, ^a petition for divorce from the appellant, then her husband. The'couple had been married since 24'h November,200l. The matter was tried by FVW Obong, the leamed Magistrate Grade One. During the pendency of the trial, the couple filed a consent judgment agreeing to the dissolution of their marriage and to other connected issues on custody and maintenance of their children and on sharing of matrimonial property. 20 25

- ⁵ t3] The consent judgment, which was endorsed by the leamed trial Magistrate, settled many of the issues arising from the respondent's petition but left the issue on how the matrimonial property was to be shared to be determined by the trial Magistrate. The leamed trial Magistrate distributed the matrimonial property according to a scheme he set out in his judgment. - t4] The respondent was dissatisfied and filed an appeal in the High Court challenging the learned trial Magistrate's matrimonial property distribution scheme. The respondent's appeal also raised issues relating to the trial Court's orders regarding maintenance and visitation rights for the children especially faulting the learned trial Magistrate for failing to specifu what amount each person was to contribute towards the children's maintenance and what was the frequency 10 15 - of the visitation rights accorded to the appellant.

t5l The leamed High Court Judge allowed the respondent's appeal, set aside the leamed trial Magistrate's distribution and substituted her own scheme for the distribution of the matrimonial property.

t6] The leamed Judge also made an order speciffing the appellant's visitation rights as being "3 days in a year of one hour each starling from 7 am to 6 pm of any day with prior notice to the appellant". 20

U) The leamed High Court Judge also made an order speciffing what the appellant was to contribute for maintenance of the children.

t8] The leamed High Court Judge also granted the respondent the costs of the appeal and in the trial Court. 25

t9] The appellant was dissatisfied and appealed to this Court, against the decision of the leamed High Court Judge. The grounds of appeal are as follows:

- ⁵ "1) The lesrned trial (sic) Judge erred in law when she without jurisdiction entertained an oppeal against a consent judgment between the parties recorded before the Magislrates' Court and overturned it on appeal. - 2) The learned trial (sic) Judge erred in law when she ordered qnd decreed freshly among others that the property mortgaged by the respondent be distributed to her and the remaining land be divided equally. - 3) The learned trial (sic) Judge erred in law when she ordered and decreed that the applicant further pays to the respondent US \$ 2000 per month to be remitted yearly (lump-sum), - 4) The learned trial (sic) Judge erred in law when she restricted the appellant's visits lo his children to only 3 times in a year for I hour, that hour to be utilized during the period between 7:00 a,m to 6:00 p.m, - 5) The learned trial (sic) ludge erred in law when she held that the property that is subject of the Divorce Petition was lawfully sold by the respondent during the pendency of the suit and without rendering an account to court and the same is not taken into account in the property distribution. 20 - 6) The learned trial (sic) Judge erred in law when she proceeded with the determination of the appeal wilhout allowing the appellant to be present for cross-examination ond denying him the right to be heard,

- ⁵ 7) The learned trial (sic) Judge erred in law when she awarded costs of the appeal to the respondenl who had mortgaged and sold family proper\$t," - [10] He prayed for the following orders: - \*1) The appeal be allowed with costs. - ¹⁰ 2) The decision and orders of lhe High Courl be set aside and substituted with orders of this honourable Court. - 3) The Court recorded consent of lhe parties in the Chief Magistrates Court be reinstated. - 4) The respondent be made lo account for the properties and money received from the mortgaging and sale of the appellant's and family propetty. - s) Costs in this Court and in the lower Courts be awarded to the appellant."

[11] On her part, the respondent opposed the appeal.

### 20 Representation

U2l At the hearing, Mr. Paul Kaweesa holding brief for Dr. James Akampumuza appeared for the appellant. Mr. John Matovu and Ms. Rose Mary Birungi appeared for the respondent.

[3] The respective counsel filed written submissions, which were adopted as their legal arguments.

# s Analysis

1)

[14] I have carefully considered the court record, and the respective counsel's submissions as well as the law and authorities cited.

[15] This is a second appeal from a decision rendered by the High Court while considering an appeal from the decision of the trial Magistrate's Court in a divorce petition. By virtue of Sections 72 and 74 of the Civil Procedure Act, Cap. 71, this Court, while handling second appeals, may entertain only points of law. Section 72 (1) sets out a list ofpoints of law, as follows:

"72. Second appeal.

(I) Except where otherwise expressly provided in this Act or by any other Iaw for the time being in force, an appeal sholl lie lo the Court of Appeal from every decree passed in appeal by lhe High Courl, on any of the following grounds, namely that-

(a) the decision is contrary to law or to some usage having the force of law;

20 (b) the decision hos failed to determine some material issue of law or usage having the force of law;

> (c) a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, has occurred which may possibly have produced error or defect in the decision of the case upon the merits."

[16] Section 74 provides as follows: 25

"74. Second appeal on no other grounds.

# ⁵ Subject to section 73, no appeal to the Court of Appeal shall lie except on the grounds mentioned in section 72."

llTl I also wish to add that a point of law will arise where it is shown that the first appellate Corxt "ened by misunderstanding the evidence, leading it to make a crucial finding of fact unsupported by evidence or contrary to uncontradicted evidence. " See: England and Wales Court of Appeal decision in Yeboah vs. Crofton 120021 EWCA Civ 794 (per Mummery, LJ).

[ 8] ^Ishall bear the above principles in mind as I consider the grounds of appeal.

# Ground I

### Appellant's submissions

- [9] Counsel for the appellant submitted that the leamed High Court Judge erred in entertaining and determining the respondent's appeal against a consent judgment, yet she had no jurisdiction to do so. Coursel submitted that under Section 67 (2) of the Civil Procedure Act, Cap. 71 (CPA), no appeal lies from a decree passed by the Court with the consent of parties. - l20l Further, that according to the case of Attorney General and Another vs. James Mark Kamoga, Supreme Court Civil Appeal No. 08 of 2004,, a consent judgment may only be interfered with through an action for setting aside or review and not by appeal. 20

l2ll Counsel further submitted that the respondent's appeal to the High Court was res judicata within the terms of Section 7 of the CPA and should not have been entertained. Counsel referred to the case of Tukamuhebwa and Others vs. Attorney General, Constitutional Petition No. 59 of 2011 for the principles on res-judicata.

[22] Counsel submitted that ground 1 be allowed.

#### Respondent's submissions

10 [23] In reply, counsel for the respondent while agreeing with the appellant's submission that a consent judgment is not appealable, contended that there was no valid consent judgment in the present case.

l24l Counsel made two points in connection with this submission. Firstly, counsel submitted that the alleged consent judgment was a mere proposal of a possible agreement of the parties, and the leamed trial Magistrate had erred to consider it as a completed judgment. Secondly, counsel submitted that if the alleged consent judgment was more than a mere proposal, it was illegal because it was not in the appropriate form required for consent judgments, that is, it was not embodied in a written document endorsed by the counsel for the respective parties as required by law.

20 [25) In support of the submissions on form, counsel relied on Oyugi Martin vs. Oyoo, High Court Civil Appeal No. 004 of 2Ol2; and Munyiri vs. Nduguya, Supreme Court Civil Appeal No. 60 of 1983 quoting from Hirani vs. Kassam (1952) l9 EACA 131.

126l Counsel submitted that in the absence of a written consent judgment endorsed by the respective counsel, this Court ought to find that there was no consent judgment in the present case.

[27) Counsel submitted that ground 1 ought to fai1.

#### 5 Decision on ground I

[28] It was the submission of counsel for the appellant that the High Court ened when it entertained an appeal against the consent judgment entered by the trial Magistrate's Court. According to counsel for the appellant, by law, no appeal lies against a consent judgment.

- 10 15 129) It must be stated that a consent judgment is an agreement by the parties to settle a case on certain terms. In Attorney General and Another vs. James Mark Kamoga and Another, Civil Appeal No. 8 of 2004, the Supreme Court stated that a consent decree is passed on terms of a new contract between the parties to the consent judgment and as such has to be upheld unless it is vitiated by a reason that would enable a court to set aside an agreement, such as fraud, mistake,

misapprehension or contravention of court policy.

[30] With respect to counsel for the appellant's submission that no appeal can be entertained against a consent judgment, Section 67 (2) of the CPA provides that:

20 "(2) No appeal shall lie from a decree passed by the court with the consent of parlies."

t31] I observe that the alleged consent judgment as recorded in the trial Court was not set out in the record of appeal. However, the trial Magistrate, in his judgment, recorded as follows:

"Before the Pelition could be heard; it come to my notice that lhe parties and their respective counsel were involved in discussions in an attempt lo arrive at a consensual settlement. A proposal was drawn by the respondent and served on the petitionen The same was placed before court and was discussed in the presence of both parties. After a long discussion, the ## ⁵ proposal was adapted with modifications and the parties together h)ith their respective counsel agreed as follows..."

132] The leamed trial Magistrate then set out the terms of the consent judgment which covered custody, children's education and welfare and costs. The terms of the consent judgment also provided for property sharing as follows:

### "4) That the parties shall share the property acquired during the marriage equally.

# 5) That the distribution and order of sharing of the properlies be determined by court and the parties shall be accordingly bound."

[33] If the summary of the proceedings by the leamed trial Magistrate is to be believed, the parties recorded a consent judgment on the terms set out above. I have considered the submission of counsel for the respondent where there is an attempt to deny the making of the alleged consent judgment. 15

[34) Counsel for the respondent submitted that the fact that there was no copy of the said consent judgment on the record meant that the same had not been made. I am unable to agree with this submission. While it may be desirable for the Court to record a consent made by the parties and place a copy of the same on record, it must be bome in mind that a consent judgment is an agreement between the parties to settle a case on certain terms.

[35] Thus, where the terms of the consent judgment can be ascertained, it will not be fatal that the consent judgment is not on record. In the present case, the terms of the consent judgment were ascertainable and were as set out in the leamed trial Magistrate's judgment. 25

⁵ 136) However, I note that the decision in the trial Court was not wholly concluded in a consent judgment. Some of the issues before the trial Court were concluded in the consent judgment but others were not. This gave rise to a peculiar situation, where, it could be said that part of the decision was by consent and the other decision was arrived at following adjudication by the trial Court. In such circumstances, it could be argued that the part of the decision that had been consented to was not appealable, while the adjudicated part could be appealed. 10

137) Because of this confusion, it is difiicult to fault the High Court's approach in entertaining the respondent's appeal insofar as it concerned distribution of matrimonial property, maintenance and visitation rights, since all these issues had been determined following adjudication by the trial Court and not by consent of the parties. I would accordingly disallow ground 1 of the appeal.

Grounds 21 3, 5, and 6

#### Appellant's submissions

[38] In support of ground 6, counsel for the appellant contended that the High Court's decision, in which it interfered with the consent judgment recorded before the leamed trial Magistrate, was tainted by violation of the appellant's right to a fair hearing during the hearing of the appeal. Counsel particularly faulted the leamed High Court Judge for determining the appeal without allowing the appellant the opportunity to be present for cross-examination and contended that this amounted to violation of the right to a fair hearing. 20 25

[39] Counsel, relying on the case of UNEB vs. Mparo General Contractors Ltd, Court of Appeal Civil Appeal No. 23 of 2004 for the proposition that ^a decision reached after denial of a party's right to a fair hearing guaranteed under

Articles 28 (l) and 44 (c) of the 1995 Constitution amounts to wrongful exercise of jurisdiction, submitted that the decision of the High Court in the present case was a wrongful exercise of jurisdiction.

[40] In relation to ground 5, counsel submitted that the learned High Court Judge wrongly concluded that the respondent lawfully sold certain property during the pendency of the proceedings in the trial Court. Counsel further submitted that this property, which included motor vehicles owned by Africa Safari Tours Ltd, a company in which the both parties held an interest, had been distributed as matrimonial property by the leamed trial Magistrate.

[41 ] The said property was considered as matrimonial property because it had been included as such in the pleadings of the parties. Counsel submitted that despite its being matrimonial property, the respondent had dishonestly sold off the properfy, and thereafter refused to give an account of the proceeds from the sale. 15

l42l Counsel further submitted that the respondent's illegal acts of selling property during the pendency of the divorce proceedings amounted to contempt of Court, and that she should not have been permitted to benefit from her acts of contempt of court.

[43] Further still, counsel submitted that the respondent's act of mortgaging certain property was illegal because the mortgage was obtained without obtaining the appellant's spousal consent as required under Sections 39 (1) and 38A ofthe Land Ac! Cap. 227 (as amended. Therefore, the respective mortgages were illegal

and the leamed High Court Judge had wrongly upheld them. In view of the above, counsel concluded by submitting that the leamed High Court Judge was wrong to conclude that the sale of the property was lawful.

⁵ l44l The appellant, in ground 3, faulted the leamed High Court Judge's order requiring him to pay to the respondent US Dollars 2000 per month to be remitted yearly (lump sum). In support of this ground, counsel submitted that the order ought to be set aside owing to variance between the judgment and the decree in regard to the amount the appellant was supposed to pay as maintenance. The variance was because while the judgment required the appellant to pay US Dollars 2,000 as a yearly lump sum, the decree split the amount and required the appellant to pay more money. Counsel thus urged this Court to set aside the maintenance order. 10

#### Respondent's submissions

[45] In reply to the submissions on ground 6, counsel for the respondent submitted that the High Cou( gave the appellant an opportunity to attend trial and cross-examine the respondent but he refused to do so. Counsel referred to ^a passage at page 2 of the judgment of the leamed High Court Judge where it was stated that the appellant had been accorded an opportunity to attend court and give his evidence but he did not do so and yet his counsel gave no satisfactory reason for his absence. 15 20

146l In regard to counsel for the appellant's submission that the appellant was absent from Court because he was out of the country counsel for the respondent submitted that this reason was not satisfactorily advanced in the High Court and it was thus clear that the appellant was in the country but deliberately refused to attend Court.

[47] In reply to the appellant's submissions on ground 2, counsel for the respondent submitted that the leamed High Court rightly concluded that certain properly including the Salama Road House which was held on a mortgage to the ⁵ respondent, was her individual property. As for the property belonging to My Africa Safari Company Ltd, counsel submitted that the leamed High Court Judge was right to conclude that the said property belonged to the company and was not matrimonial property. Further still, that, in any case, the vehicles had been sold before the filing of the divorce petition and were therefore not available for distribution.

[48] In respect to ground 3, which challenged the leamed High Court Judge's order on maintenance, counsel for the respondent reiterated that, under Article 31 (4) of the 1995 Constitution and Section 5 of the Children Amendment Act,, 2016, it is obligatory for parents to care for the needs of their children, by among other things, paying to maintain them upon divorce.

[49] Furthermore, that a Court determines the appropriate maintenance order by taking into account the means of the parents. In the present case, the leamed High Court Judge took into account the appellant's salary of USD 8000 per month and considered that a maintenance order for USD 2000 per month was appropriate.

Counsel submitted that the learned High Court Judge's orders on maintenance were just and fair. 20

### Decision on grounds 2,3, 5 and 6

[50] I have carefully considered the respective counsel's submissions on grounds 2,3, 5 and 6. In ground 6, the appellant contends that the leamed High Court Judge erred in law when she proceeded with the determination of the appeal without allowing him the opportunity to be cross-examined on his evidence.

[5 1] Counsel for the appellant submitted that the High Court's decision was passed in violation of the appellant's rights to a fair hearing in that the appellant

⁵ was denied the right to cross-examine the respondent on the evidence that the High Court admitted on appeal.

[52] I noted that there is no record of proceedings to show what transpired in the High Court which renders it difficult to evaluate the appellant's contentions underground 6. However, regarding the proceedings during the hearing of the appeal, the leamed High Court Judge recorded as follows:

"Additional sworn slalements were filed and al the hearing the appellant wos cross examined snd re-examined. The respondent didn't turn up so his statement h,as not cross-examined much as his counsel was present and court was told by his counsel that he was in the counlry. Reasons which were given by his counsel why he was not in court were too farfetched so court was not satisfied with them- Nevertheless, counsel suggested dates for Jiling written submissions and a schedule was made to that effect,"

[53] There is no suggestion that the learned High Court Judge wrongly recorded what transpired during the hearing of the appeal. I am therefore inclined to believe that the High Court afforded the appellant an opportunity to be present for crossexamination but he, without good cause, failed to attend Court for the purpose.

[54] In those circumstances, I would hold that the High Court did not violate the appellant's right to a fair hearing. I would therefore disallow ground 6.

[55] Ground 2 and 5 relate to the manner in which the High Court distributed the alleged matrimonial property among the parties. Interestingly, the respondent did not expressly ask for orders for distribution of matrimonial properry in her petition. However, the issue was raised in the parties' "consent judgment" wherein item 4 stated that, "Thot the parties shall share the prcperty acquired during the

## ⁵ morriage equally" and in item 5 that, "That the distribution and order of sharing of the properties be determined by courl and the parties shall be accordingly bound."

[56] As rightly observed by the High Court, no evidence was adduced in the trial Court to show the matrimonial property allegedly owned by the parties. The High Court opted to receive additional evidence so as to identiff and facilitate the distribution of the matrimonial property among the parties. Counsel for the appellant criticised the High Court arguing that it ought to have upheld the property distribution scheme that was put in place in the parties' consent.

[57] I have carefully considered the parties'consentjudgment and I find that the same merely provided that the distribution of the matrimonial property would be done by the trial Court. Of course, in doing the distribution of the matrimonial property, the trial Court was supposed to rely on credible evidence as to the circumstances of ownership so as to determine the extent each party had contributed to acquisition of matrimonial properfy. 1.5

- [58] I agree with the learned High Court Judge that there was insufficient evidence to facilitate an investigation into the circumstances of ownership of matrimonial property and I cannot fault her approach in receiving additional evidence to better facilitate that investigation. 20 - t59] According to the judgment of the learned High Court Judge, the respondent made an affrdavit in which she listed all the matrimonial property which include land and other personal property. However, this afflrdavit is not on record. What is on record is a statement on oath by Mr. Onyango Paul in support of the appellant's case at page 30 of the record, and a statement by the respondent in rejoinder 25

thereto by the respondent at page 35 of the record. It is clear that the respective statements by the appellant and the respondent are not on record.

[60] I am unable to come to a conclusion as to whether counsel for the appellant deliberately left this material out while preparing the record of appeal because if that had been the case, counsel for the respondent ought to have applied and filed a supplementary record to have that material placed on record.

[61 ] In the circumstances, I am unable to conduct a meaningful review of whether the High Court applied the right principles while distributing the matrimonial property between the parties. I am therefore inclined to make orders for the rehearing of the case between the parties in regard to what was the matrimonial property between the parties and how the same ought to have been distributed.

162l Ground 3 relates to the High Court Judge's maintenance order. Item 3 of the parties' consent judgment in the trial Court provided that, "That the respondent provides for education and medical needs of the children." The final orders of the leamed trial Magistrate included an additional order, not included in the consent judgment, which provided that, "The parties Lroth have equal responsibility towards the maintenance of the children at all times."

[63] In her appeal to the High Court, the respondent contended that the abovehighlighted orders from the trial Court had erroneously failed to speciff the "amounts and manner of sharing the responsibility of the parties towards the maintenance and welfare of the children." The High Court upheld the respondent's contention and ordered as follows:

L6 "The respondent hds to meet all educalional, medical and accommodation needs for the children which should be remitted yearly lo avoid inconveniencing the children, The monthly remillance requiremenl aport from school fees and other educational needs should be at a rate of US Dollars 2000 per month to cater for accommodalion, medical general upkeep toking into account the escalating cost of living and the welfore of the children as per Section 3 and I't schedule of the Children AcL The fees shall be payable by the respondent to the appellant through bank slips."

15 164) Counsel for the appellant (respondent in the High Court) challenged the maintenance order on two grounds; first, that the High Court did not explain the basis for making the orders; and secondly, that the maintenance order in the judgment varied from that indicated in the decree of the High Court.

[65] Under Section 84 (1) of the Children Act, Cap. 59, in all cases of divorce, separation or nullity, both parents shall continue to maintain and educate their child. Therefore, both parents have an equal responsibilify to maintain their children.

t66] The Black's Law Dictionary, 8th edition defines maintenance as; "the financial support given by one person to another, usually paid as a result ofa legal separation or divorce". In the context of the Children Act, maintenance relates to provision of a child's basic needs including education and guidance, immunisation, adequate diet, clothing, shelter and medical attention.

167) Both parents are by virtue of Section 84 (1) required to jointly maintain their children. Howeveq in my view, this does not necessarily mean equal but equitable maintenance, taking into account the financial resources ofeach parent.

L7

⁵ [68] It is therefore for the Court making maintenance orders to investigate the financial ability of each parent before making an appropriate order on maintenance. In the present case, the High Court did not investigate the financial means of the parties before making the maintenance order, and one is left wondering what was the basis of its order requiring the appellant to pay USD 2,000 for education of the children, in addition to accommodation and other expenses.

[69] One wonders why the respondent was not ordered to cater for maintenance of the children, whether this was because she completely had no means to do so, or otherwise.

U0) In my view the High Court's maintenance order was based on insuffrcient evidence, and I am unable to uphold it. Instead I would order for a retrial to determine the appropriate maintenance order. All in all, I would resolve grounds 2, 3, 5 and 6 in accordance with the above analysis. 15

### Ground 4

[71) In ground 4, the appellant contested the leamed High Court Judge's order on visitation rights which mandated that he visits his children only 3 times a year for ¹ houq that hour to be utilized during the period between 7:00 a.m to 6:00 p.m. Counsel for the appellant submitted that the visitation rights order had no legal basis and was contrary to the legal principles enshrined in Article 3 1 (4) of the 1995 Constitution to the effect that each parent has a right and duty to care for and bring up his,4rer children, and the welfare principle in Schedule I to the Children Act, Cap. 59 which underscores the importance of children having access to both parents, unless there is justification to restrict access to either parent. 20

172) Counsel contended that in the present case, there was no reason justifuing the learned High Court Judge's order restricting the appellant access to his children, and as such the order ought to be set aside.

#### Respondent's submissions

173) In reply, counsel for the respondent submitted that determination of the frequency of visitation rights is at the discretion of Court as there is no law goveming the area. Counsel further submitted that the leamed High Court Judge correctly exercised her jurisdiction to grant the appellant limited visitation rights because he is rarely in the country. 10

### Decision on ground 4

1s 17 4l I have carefully considered the submissions on ground 4 which challenges the leamed High Court Judge's visitation rights order which was that:

# "The appellant has visitation rights 3 days in a year of one hour each starting from 7 am to 6pm of any day wilh prior notice to the appellanl"

175) Counsel for the appellant submitted that the above order was contrary to the spirit of the provisions set out in the Children Act, Cap. 59. I note that Section 84 (2) of the Children Act provides that, at divorce: 20

# "(2) l4/here the child is in the custody ofone parent, the other parent shall have reasonable access to the child."

176) The question is therefore whether permitting a parent access to his children for only 3 hours distribute across 3 separate days in a whole year is reasonable access, and my answer would be in the negative. I would find that the visitation rights order unduly limited the appellant's access to his children.

- 177) Unfortunately, the leamed High Court Judge did not explain her reasons for such limited access. I am therefore inclined to set it aside. I would remit the issue on visitation rights for rehearing as well. - [78] Ground 4 of the appeal would succeed.

### Ground 7

- U9l The appellant, in ground 7, alleged that the leamed High Court Judge ened in law when she awarded costs of the appeal to the respondent who had mortgaged and sold family property. In his submissions, counsel for the appellant submitted, relying on Section 27 (2) of the Civil Procedure Act, Cap. 71 which provides that, "the costs of any action, cause or other matter or issue shall follow the event 10 - unless the court or judge shall for good reason otherwise order. " 15

[80] Counsel submitted that in the present case, the respondent's appeal was illegal and therefore the leamed trial Judge was wrong to award her costs of the appeal.

#### Respondent's submissions

²⁰ [81] Counsel for the respondent agreed with the appellant's statement ofprinciple that costs follow the event and are ordinarily awarded to the successful litigant. Counsel submitted that the respondent was the successful party in the appeal in the High Court and thus was rightly awarded costs.

#### Decision on ground 7

[82] I have considered the respective counsel's submissions on ground 7. In view of my earlier findings in which I found the appeal to have substantially succeeded,

⁵ I would set aside the order on costs and substitute it with the order which I shall set out shortly. Ground 7 also succeeds.

### Decision

[83] For the reasons given above, I would find that the appeal substantially succeeds and make the following orders:

- ¹⁰ a) The judgment and orders ofthe High Court are set aside. - b) The file is remitted to the High Court (Family Division) with an order that it rehears the case and determines the issues regarding the sharing of matrimonial property, and what the appropriate maintenance and visitation rights orders should be. - 15 c) No order is made as to costs.

Dated, signed and delivered at Kampala tht. &a{ Fauy of 025.

F

Christopher JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

# IN THE COURT OF APPEAL OF UGANDA AT KAMPALA CIVIL APPEAL NO. 218 OF 2015

(Coram: Cheborion, Gashirabake and Mugenyi, JJA)

## JOHN MARY TUMWESIGYE MBUSA APPELLANT

### VERSUS

# JUDITH TUKEI MBUSA...... ............. RESPONDENT

(Appeal from the decision of the High Court of Uganda at Nakanta before F. Muondhn, J (as she then uas) in Diuorce Appeal No. 1 of 2011 dated 79h January, 2012.)

### JUDGMENT OF CHEBORION BARISHAKI, JA

I have had the beneht of reading in draft the judgment prepared by the Hon, Justice Christopher Gashirabake, JA in the above appeal and I agree with the analysis he has made, the conclusions reached and the orders he has proposed. Since Mugenyi JA agrees, this appeal substantially succeeds with the following orders:

- a) The judgment and orders of the High Court are set aside. - b) The file is remitted to the High Court (Family Division) for the court to rehear the case and determine issues regarding the sharing of matrimonial property, and the appropriate maintenance and visitation rights. - c) No order is made as to costs.

# It is so ordered

?- Dated at Kampala this day o 025

Cheborion Barishaki

Justice ofAppeal

# THE REPUBLIC OF UGANDA IN THE COURT OF OF UGAND A AT KAMPALA CIVIL NO. 218 0F 2015 (Coram: Cheborion, Gashirebake and Mugenyi, JJA|

## JOHN MARY TUMWESIGYE MBUSA : : : : : : 3 : : 3 3 : : : : : APPELLANT VERSUS

### JUDITH TUKEI MBUSA : : : : : : : : : : : : : : : : : : : 3 : : : : : : : : : : : : : : RESPONDENT

(Appeal from the decision of the High Court of Uganda at Nakawa before F' Mwondha, J (as she then uas) in Duorce Appeal 1 of 2011 dated 19th January, 2012.)

### JUDGMENT OF DR. ASA MUGENYI, JA

I have had the advantage of reading in draft the judgement prepared by my learned brother, Hon. Justice Christopher Gashirabake, JA' I agree with the reasoning and orders proposed.

Dated at Kampata rhi". AY.e-d"y 2025

Dr. Asa Mugenyi JUSTICE OF APPEAL