[2023] UGHCFD 196

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (FAMILY DIVISION) DIVORCE CAUSE NO. 0169 OF 2021**

**LAETITIA AKUNY OBUKU ======================= PETITIONER**

#### **VERSUS**

**GEOFFREY JUDE OBITRE ======================== RESPONDENT**

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

#### **Introduction**

This Judgment is in respect of a Divorce Petition filed in this Honorable Court by the Petitioner against the Respondent for Orders that:

15 a) That the marriage of the Petitioner with the Respondent be dissolved;

- b) That the Petitioner may have primary custody of all the children of the marriage; - c) That the Petitioner may be granted such secured provision and such sums by way of maintenance for the said children and herself as may be just; - 20 d) That the Petitioner be granted full possession and ownership of the matrimonial home along with all household possessions therein; - e) That the funds on the Unit Trust Account Number 1004281 held with UAP Old Mutual Financial Services Uganda Ltd be divided between the Petitioner


and the Respondent in the proportions of their respective contributions made thereunder;

- f) That the Respondent pays the costs of and incidental to this Petition; and - g) That the Petitioner may have such further and other relief in the premises as

5 to the Honourable Court she may be seen to meet.

#### **Representation**

At the hearing of the Petition, the Petitioner was represented by Mr. Ssekatawa Mathias and Mr. Gulam Hussein of M/S MMAKS Advocates while the Respondent

10 was represented by Ms. Ida Namusoke and Mr. Okello Peter of M/S Okua & Associated Advocates.

#### **The Petition**

The Petition was filed in this Honorable Court on 28th September 2021 and the

Respondent filed a Reply to the Petition and a Cross-Petition on 21 15 st October 2021. The Petitioner's case had two witnesses that is, the Petitioner and another while the Respondent's case had three witnesses that is, the Respondent and two others. Evidence was by way of witness statements and the witnesses were cross-examined and re-examined by Counsel. Counsel for both parties also filed written submissions 20 and the same have been considered in this Judgment.

#### **Facts**

The Petitioner and the Respondent got married on 26th January 2008 at Our Lady of Africa, Mbuya. The parties are blessed with four male children aged 15, 14, 10½, 25 and 8 respectively (as at the time of trial).


The Petitioner filed for divorce on the ground of cruelty. During the hearing before Hon. Lady Justice Ketrah Kitariisibwa Katunguka, Mr. Obitre Geoffrey Jude (hereinafter referred to as **the Respondent**) abandoned the Cross-Petition and instead filed Miscellaneous Application No.334 of 2022 against Laetitia Akuny 5 Obuk (hereinafter referred to as **the Petitioner**) wherein a Consent Order was entered requiring among others, that the Respondent vacates the matrimonial home

During the hearing on 17th August 2023, the Respondent admitted that he was guilty 10 of cruelty as pleaded against him in the Petition and the Court entered a Decree Nisi dissolving the parties' marriage. As per the Petition, the issues that remained for determination by the Court were custody and maintenance of the children and distribution of matrimonial property. However, during the hearing on 25th October 2023, the parties and their respective Counsel agreed that both parties were entitled 15 to joint custody of the issues to the marriage. As such, the issues on dissolution of

and that they have shared custody of all the 4 children in equal durations.

the marriage and custody of the children were concluded and the only issues remaining for determination are matrimonial property and maintenance of the children.

#### 20 **Issues**

- 1. What are the parties' matrimonial properties and how should they be divided; and - 2. What maintenance Orders should the Court make?

#### 25 **Resolution of issues**

**Issue 1:** *What are the parties' matrimonial properties and how should they be divided?*

Counsel for the Petitioner while relying on the cases of *Muwanga versus Kintu, High Court Divorce Appeal No. 135 of 1997* and *Julius Rwabinumi versus Hope Bahimbisomwe, Supreme Court Civil Appeal No. 10 of 2009* listed the matrimonial home at Nsasa comprised in Kyadondo Block 184 Plot 1030/1031 and the funds on 5 Unit Trust Account No. 1004281 which is held with UAP Old Mutual Financial Services Uganda Ltd as comprising matrimonial property wherein they submitted that both parties made contributions to the same although in varying degrees. On the other hand, Counsel for the Responded added to the list of matrimonial property, the

10 Mukono.

### **a) Land comprised in Kyadondo Block 184 Plots 1030 and 1031 at Nsasa developed with a matrimonial home where the couple resided before the separation.**

land at Zirobwe measuring ten acres and the three plots of land at Nabusugwe,

- 15 Concerning the land at Nsasa comprised in Kyadondo Block 184 Plots 1030 and 1031, Counsel for the Petitioner submitted that whereas both parties agree that the home at Nsasa is matrimonial property, the dispute lies in the parties' respective contributions made towards the acquisition and development of the property. Counsel while relying on the various Bank statements showing the amounts 20 transferred from the Petitioner's Bank Account and payment receipts in the name of the Petitioner for various items towards the construction and furnishing of the said matrimonial home, submitted that the Petitioner's contribution was more substantial than the Respondent's. Counsel contended that because the Petitioner purchased the land upon which the said matrimonial home was built and that even during the actual - 25 construction, the Petitioner disbursed huge amounts of money and yet she was earning the least of the two, her contribution was substantial and the same was not shaken during cross-examination.

Counsel for the Petitioner further argued that, the Respondent, despite earning a hefty salary was unable to prove his contributions to the matrimonial home. Counsel for the Petitioner also noted that in addition to her cash contributions, the Petitioner also made non-monetary contributions in the form of home-making and caring for

- 5 the Respondent and their four children for close to sixteen years. That the Respondent cannot discount that contribution under which he has derived benefit. That all in all, it is clear that the Petitioner contributed solely to the acquisition of the property and the vast majority toward its development. - 10 Counsel therefore prayed that this Honourable Court finds and holds that the Respondent's contribution toward the Nsasa home, if any, is limited to only 10% of the market value of the property and that the Petitioner should retain the property at Nsasa and compensate the Respondent for his 10% share therein within a reasonable period to be determined by the Court. - 15


was cited with approval in the case of *Ambayo Joseph Waigo versus Aserua*

*Jackline CACA No. 100 of 2015* where it was observed that Courts should be less strict when considering rights between married persons than when considering rights of strangers.

- 5 Counsel for the Respondent insisted that from the Respondent's evidence, the Petitioner's only monetary contributions were UGX 15,800,000 for the land and UGX 45,000,000 which she transferred to the project designated account in KCB Bank on 28th March 2012. - 10 Counsel for the Respondent also contended that in addition to the monetary contribution of the Respondent towards the development of the matrimonial home, the Respondent also made non-monetary contributions investing time and efforts in the supervision and hiring site labour. According to her, the Respondent was always on the site and as opposed to the Petitioner who was rarely at the site to the point 15 that one could conclude that the Respondent was the sole owner of the project. Counsel for the Respondent insisted that the Respondent contributed more than the Petitioner and he should be awarded 70% with the Petitioner being awarded 30%.

#### **Court's Consideration**

20 Courts have provided guidance on what amounts to matrimonial property and how it should be distributed.

In the case of *Julius Rwabinumi versus Hope Bahimbisomwe SCCA 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* 25 (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* 5 *which each spouse should be entitled is that property which the parties choose to call home and*

*which they jointly contribute…"*

It was further pointed out in the above Court decision that 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 case of *Rwabinumi (Supra)*, Hon. Justice Esther Kisaakye further observed thus:

*"In my view, the Constitution of Uganda (1995), while recognizing the right to equality of men and women in marriage and at its dissolution, also reserved the constitutional right of*

- 15 *individuals, be they married or not, to own property either individually or in association with others under Article 26 (1) of the Constitution of Uganda (1995). This means that even in the context of marriage, the right to own property individually is preserved by our Constitution as is the right of an individual to own property in association with others, who may include a spouse, children, siblings or even business partners. If indeed the framers of our constitution* - 20 *wanted to take away the right of married persons to own separate property in their individual names, they would have explicitly said so…I am aware that any married person, in pursuance to the marriage vows he or she has made in church or in any other marriage ceremony, is at liberty to execute a legal instrument and to transfer into joint or sole ownership land and/or property he or she held prior to the marriage in favour of his or her spouse, either at the time of* - 25 *contracting the marriage or any time after the marriage has been celebrated. Similarly, a spouse can also transfer into joint or sole ownership property he or she individually acquired during marriage. In such a case, the spouse, in whose favour the transfer of land has been made, would clearly be entitled to register the land in his or her names or in the couple's joint names as the transfer instrument may state. If this is not done as is the case in most cases, then the Courts* - 30 *will continue in divorce cases where ownership or sharing of property is at issue, to determine*

*each case based on the Constitution of Uganda; the applicable marriage and divorce law in force at the time, in order to make the determination whether the property in question is marital property or individual property acquired prior to or during the marriage and to determine whether such property should be divided either in equal shares or otherwise, as the facts of the*

5 *each case would dictate."*

In the case of *Kamore versus Kamore [2000] 1 EA 81* which was cited *in Ayiko Mawa Solomon versus Lekuru Annet Ayiko High Court Divorce Cause No. 1 of 2015*, the Court of Appeal of Kenya presumed equality in two properties registered

- 10 in the name of the husband and wife jointly saying at page 85 thus: *"Where property is acquired during the course of coverture and is registered in the joint names of both spousesthe Court in normal circumstances must take it that such property being a family asset is acquired in equal shares".* - 15 Justice Mubiru in *Ayiko Mawa (supra)* added that the presumption of equality on jointly owned properties is rebuttable.

In the instant case, the parties agree that the land where the matrimonial home was constructed was solely purchased by the Petitioner at Fifteen Million Eight Hundred 20 Thousand Shillings (UGX 15,800,000) without a contribution from the Respondent. (PEX 14, 15, and 16 are the sale agreements and the receipts). However, they both agreed to have the land transferred in their joint names, and construction of the matrimonial home commenced. The Certificate of Title in the names of Jude Obitre and Laetitia Obuku was admitted and marked PEX 12. I have considered the 25 arguments from each of the parties claiming superior contribution over the other towards the construction of the house and general development of the land into a matrimonial home. However, the fact that the parties chose to register the land in their joint names and also chose to work together towards the construction of the

home and its development generally is an indication that they intended to be equal owners or equal beneficiaries as observed in *Kamore v. Kamore [2000] 1 EA 81 and Ayiko Mawa Solomon (supra)*. In *Ayiko Mawa (supra)* Hon. Justice Stephen Mubiru added that the presumption of equality on jointly owned properties is 5 rebuttable. However, in this case, no evidence was adduced to the satisfaction for the Court warranting the rebutting of the presumption.

I also wish to observe that if the parties were still married, they would enjoy the comfort of the home in equal measure because clearly, that was their original 10 intention. However, since they have decided to live apart, this Court has the duty to ensure that the property is distributed amongst them in a just and fair manner.

In light of the above, therefore, I find that both the Petitioner and the Respondent are equal owners of the land comprised in Kyadondo Block Block 184 Plots 1030 and

15 1031 at Nsasa developed with a matrimonial home. Each of them is therefore entitled to a 50% share on the above-described matrimonial property. The property shall be valued by the Chief Government Valuer or any other Valuer agreeable to both parties at the expense of both parties **within four (4) months** from the date of this Judgment and in any case **not later than 30th March 2024**.

I noted that the Petitioner seemed to have very high sentiments on the property and considering that she is the one currently in occupation of the matrimonial home and the fact that the Respondent is currently constructing another home, the Petitioner shall maintain it but she shall compensate the Respondent the equivalent of 50% of

25 its total value after valuation.

 **IN THE ALTERNATIVE**, in the event that the Petitioner is unable to compensate the Respondent, the property shall be sold and each party shall be entitled to 50% of the total value of the property as determined by the Valuer.

5 The Petitioner also prayed to the court to grant her an order for the household properties. However, no evidence was led as to what properties they are. In light of that therefore, I direct that each party shall retain what they purchased.

### **b) UAP UNIT TRUST ACCOUNT**

- 10 Concerning this, the parties agree that it is the matrimonial property and the only point of disagreement is on the deposits made by each of them and the withdrawals so far made therefrom. The Petitioner testified that she estimated that she made a total contribution of UGX 141.5 Million and took out UGX 87.8 Million leaving her balance at 53.7 Million. She also testified that the Respondent's estimated deposits - 15 were UGX 62.15 Million which he did not take out, leaving his balance at UGX 62.15 Million. She invited the Court to make an Order giving each of the parties their respective contributions and an equal sharing of the interests. Counsel for the Petitioner invited the Court to consider page 55 of the Trial Bundle (which is presumably part of PEX13, an Investment Account statement from UAP). The 20 Respondent disputed this saying that UAP disowned it and Counsel for the Petitioner stated that it was actually prepared by the Petitioner showing the individual contributions. This document purports to give a breakdown of the individual contributions and though it was argued in the Court that it was the Petitioner who prepared it, the document itself is silent on who the author is. This Court therefore - 25 cannot rely on it and it is accordingly rejected.


On the other hand, the Respondent testified that this was a joint account in Stanbic Bank but each of them made varying contributions and he contributed more than the Petitioner. According to him, they had a total of UGX82,000,000 and the Petitioner withdrew her UGX 28,000,000 leaving a balance of UGX 54,000,000 which belongs

5 to the Respondent. He further testified that when Stanbic sold the business, the UGX 54,000,000 was transferred to UAP Account Number 1004281 and the Respondent continued to make deposits on the account at UAP. It was further his testimony that the Petitioner did not make deposits on this account but instead withdrew UGX 20,000,000 which she used to buy her vehicle. He insisted that the Petitioner is not 10 entitled to any share because she withdrew all that she was entitled to.

**Court's Consideration**

From the assembled evidence, none of the parties adduced evidence to the satisfaction of the Court as to how much each one contributed on this investment.

- 15 The Account Statement reflected deposits, withdrawals and interests. However, as already observed while discussing the Nsasa property, it is my considered view that the fact that the parties chose to save and invest jointly is reason that they wanted to be equal owners. My view is also supported by the fact that the parties have properties that are in their sole individual names and accounts in their names. 20 Therefore, the fact that they chose to save and invest jointly on UAP Trust Account, I make a finding that they are equal owners and shall share whatever is on the account equally. I therefore Order that each of the parties is entitled to 50% share on the UAP Unit Trust. - 25 **c) 10 acres of land at Zirobwe**


The parties agree that the Petitioner separately purchased seven (7) acres of land and later the Respondent bought three (3) acres on the same land making it a total of 10 acres. The Petitioner adduced evidence of an Application of an RTGS Transfer of UGX 45,000,000 from her account to that of Kitaka Drake for purposes of purchase

- 5 of 7.0 acres of land in Zirobwe (PEX 22). The Petitioner also adduced an e-mail from the Respondent where the Respondent acknowledged her Seven (7) acres of land (PEX23). The Petitioner then invited the Court to grant her the seven acres which she paid for. - 10 On the other hand, the Respondent testified that when they made the ten (10) acres, they planted trees on a total of nine acres, the seven (7) belonging to the Petitioner and two (2) acres out of his. It was his testimony that the trees had grown and he later learnt that they were all cut and taken away and he has since reported the case of theft of trees to the Police. According to him, the Petitioner frequently visits the - 15 farm and therefore she must have a hand in the theft of the trees. The Respondent invited the Court to grant him the three (3) acres that he bought and two (2) acres as compensation for the trees. He stated that the trees were valued at approximately UGX 60,000,000.

## 20 **Court's Consideration**

From the adduced evidence, both parties agree that though the land adjoins each other, they bought the different pieces separately. The parties also agree that the land is divisible and each of them is aware of what they paid for. It is therefore Ordered that the Petitioner is entitled to the seven (7) acres which she paid for while the 25 Respondent is also entitled to the Three (3) acres which he paid for. His prayer that he should be awarded two (2) more acres to compensate for the trees has been


disallowed because he did not adduce evidence to the satisfaction of the Court that the Petitioner had a hand in the theft of the trees.

## **d) Three Plots of land at Nabusugwe, Mukono**

5 It is admitted that the three Plots namely: Plots 898, 899 and 901 land at Nabusugwe, Mukono were solely bought by the Petitioner and are registered in her sole name. The Purchase Agreement and the Certificates of Title for the three Plots are registered in the name of the Petitioner. (The Certificates of Title were admitted in evidence as PEX 24, 25 and 26 while the Purchase Agreement was admitted as PEX 10 27)

The Respondent testified that whereas it is true that the Petitioner solely paid for the above plots, the Respondent supported her to acquire a Master's Degree and he paid \$7,500 towards that. Counsel for the Respondent invited the Court to find that this was a contribution towards the acquisition of the above-mentioned properties 15 because as the Respondent was using his savings to support the Petitioner in obtaining an upgrade in education, the Petitioner saved her money and bought the three plots.

On the other hand, Counsel for the Petitioner strongly opposed this arguing that the

20 Respondent has not satisfied the Court that he actually paid the \$7,500 towards the education of the Petitioner and even if he did, it was his contribution as a husband would make to a wife.


## **Court's Consideration**

25 As already observed, from the conduct of the parties, there is property they chose to own jointly but there is also property they chose to own individually and privately.

As was observed in the *Rwabinumi case (supra)*, marriage does not take away an individual's right to own property privately. I find that the Petitioner solely purchased the three plots of land and Nabusugwe, Mukono and chose to own them privately by registering them in her sole name. When she desired to own jointly the

- 5 Nsasa land, she had the land registered in joint names which was not the case with these plots. The claim by the Respondent that he paid \$ 7,500 towards the education of the Petitioner which should be deemed as his contribution towards the acquisition of this property is in my considered view farfetched. I have also read the email the Respondent sent out to the Petitioner (PEX 23) wherein he told her that he was not - 10 laying a claim on any other properties of the Petitioner apart from the matrimonial home at Nsasa.

I therefore, find that the three plots of land at Nabusugwe, Mukono is not matrimonial property but belongs to the Petitioner exclusively.

# 15 **Issue 2:** *What maintenance Orders should the Court make?*

As earlier observed the parties already have joint custody of the four children and during the trial, the parties still conceded to joint custody. The joint custody Order is maintained but with some variations in respect of the youngest child. The joint custody shall be managed as follows:

20 (a) Both the Petitioner and the Respondent shall share the holidays equally. The Petitioner shall hand over ALL the four children to the Respondent two (2) days after the close of the term while the Respondent shall hand them over to the Petitioner two (2) days prior to the opening of the term. Both parties shall have visitation rights at the school. FOR AVOIDANCE of doubt, the holiday 25 arrangement applies to the last child as well. This is intended to keep all the children together during the holidays to promote their bonding.


- (b)The Petitioner shall have custody of the last child during the school term while the Respondent shall continue to have his custody on alternate weekends. During the weekdays, the Petitioner shall drop to school and pick the child from school. This is because during trial, the Respondent raised a 5 concern that it was hard for him to come from Kigo where he currently resides, pick a child from school at Hill side Nalya and drop him to Nsasa. I find that it is easier for the Petitioner who lives in Nsasa to drop and pick the child. However, if the Respondent desires to pick the child on some occasions to drop him off to Nsasa, the Petitioner shall not prevent him. - 10 Regarding maintenance, Counsel for the Petitioner argued that the Respondent earns much more than the Petitioner. He proposed that the Respondent should be ordered to maintain the children to the tune of 85% and the Petitioner 15%.

Whereas it is true that the Respondent earns much more than the Petitioner, I find that the Petitioner is also gainfully employed and she has also heavily saved and 15 invested. Therefore, the maintenance of all the children will be a shared responsibility between the Petitioner and the Respondent.

#### **Conclusion**

Consequently, this Petition succeeds and the following declarations and Orders are 20 made:

- 1. Both the Petitioner and the Respondent are equal owners of the land comprised in Kyadondo Block Block 184 Plots 1030 and 1031 at Nsasa developed with a matrimonial home; - 2. Both the Petitioner and the Respondent are entitled to a 50% share on the 25 above-described matrimonial property;


- 3. The property shall be valued by the Chief Government Valuer or any other Valuer agreeable to both parties at the expense of both parties within **four (4) months** from the date of this Judgment and in any case **not later than 30th March 2024**; - 5 4. Due to the Petitioner's very high sentiments on the property and considering that she is the one currently in occupation of the home, and the fact that the Respondent is currently constructing another home, the Petitioner shall maintain it but she shall compensate the Respondent the equivalent of 50% of its total value after valuation. **IN THE ALTERNATIVE**, in the event that 10 the Petitioner is unable to compensate the Respondent, the property shall be sold and each party shall be entitled to 50% of the total value of the property as determined by the Valuer; - 5. Both the Petitioner and the Respondent are equal owners and shall share whatever monies on the account equally. Each of the parties is entitled to 50% 15 share on the UAP Unit Trust; - 6. Concerning the land comprising ten (10) acres at Zirobwe, the Petitioner is entitled to the seven (7) acres which she paid for while the Respondent is entitled to the Three (3) acres which he paid for; - 7. The three plots of land at Nabusugwe, Mukono is not matrimonial property 20 but belongs to the Petitioner exclusively; - 8. The joint custody Order for the four children is maintained but with some variations in respect of the youngest child to be managed as follows: - (a) Both the Petitioner and the Respondent shall share the holidays equally. - (b)The Petitioner shall hand over ALL the four children to the Respondent - 25 two (2) days after the close of the term while the Respondent shall hand them over to the Petitioner two (2) days prior to the opening of the term.

- (c) Both parties shall have visitation rights at the school. For avoidance of doubt, the holiday arrangement applies to the last child as well. This is intended to keep all the children together during the holidays to promote their bonding. - 5 (d)The Petitioner shall have custody of the last child during the school term while the Respondent shall continue to have his custody on alternate weekends. During the weekdays, the Petitioner shall drop to school and pick the child from school. - (e) Where the Respondent desires to pick the child on some occasions to 10 drop him off to Nsasa, the Petitioner shall not prevent him. - 9. The maintenance of all the children shall be a shared responsibility between the Petitioner and the Respondent to be managed as follows: - (a) The Respondent shall provide school fees for all the children while the Petitioner shall provide school requirements and medical care for all 15 the children. - (b)Both parties shall provide food and clothes when the children are in their custody. - (c) Both parties shall agree on the choice of the schools and health facilities for the children. - 20 I so order.

**Dated at Kampala this 30th day of November 2023.**

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

Alice Komuhangi Khaukha

25 **JUDGE**

30/11/2023.