Agaba v Nabweteme (Civil Appeal 32 of 2022) [2023] UGHCFD 186 (28 September 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA**

# **(FAMILY DIVISION)**

# **CIVIL APPEAL NO. 0032 OF 2022**

5 **(Arising from Miscellaneous Application No. 0068 of 2022)**

**(Arising from Nakawa Chief Magistrate's Court Divorce Cause No. 0062 of 2022)**

**AGABA HENRY ……………………………………………………… APPELLANT**

#### **VERSUS**

10 **NABWETEME FLORENCE ………………………........................... RESPONDENT**

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

#### **JUDGMENT**

# **Introduction**

This Judgment is in respect of an Appeal against the decision of His Worship Frank Namanya Magistrate Grade 1, Nakawa Chief Magistrate's Court delivered on the 3rd day of October 2022 in Miscellaneous Application No. 68 of 2022 arising out of Divorce Cause

- 20 No. 62 of 2022. The Appeal seeks for Orders that: - i) The Ruling of the Court be set aside and this Appeal be allowed; - ii) The Magistrate Court be ordered to hear and determine Divorce Cause No. 62 of 2022 on its merits; and - iii) Costs in this Court and in the Lower Court be awarded to the Appellant.

# **Appearance and Representation**

At the hearing, the Appellant was represented by Senior Counsel Dr. Harriet Diana Musoke of Musoke and Co. Advocates together with Peterson Mwesiga of Meritus Advocates while the Respondent was represented by Counsel Charity Itungo of M/S Enoth Mugabi

Advocates and & Solicitors. Both Counsel filed written submissions while citing authorities and the same have been considered in this Judgement.

However, I need to note that Counsel for the Appellant did not comply with the schedules 5 of filing the Appellant's submissions which in turn caused a delay in filing a reply on the part of the Respondent. At the time of writing this Judgment, I had not received any rejoinder from Counsel for the Appellant and as such the same were not considered while writing this Judgment.

#### 10 **Facts leading to the Appeal**

Mr. Henry Agaba (**Appellant**) and Ms. Florence Nabweteme (**Respondent**) got married on 31st August 2019 and got one issue. On 2nd August 2022, the Appellant filed Divorce Cause. No. 62 of 2022 against the Respondent seeking for the dissolution of the marriage, partial physical custody of the issue of the marriage, legal custody, joint maintenance and

- 15 Costs. The Respondent filed a Reply to the Divorce Petition together with a Cross Petition in which she also prayed for the dissolution of the marriage, legal custody of the child, maintenance, shelter, alimony, matrimonial home, damages and Costs. The Appellant filed a Reply to the Cross Petition in which he pleaded that the alleged matrimonial property comprised in Kyadondo Block 242 Plot 488 mentioned in the Cross Petition is neither owned by the Petitioner nor the Respondent but rather is owned by a 3rd 20 party (Acentric - Limited) which is not a party to the proceedings.

The Respondent further filed Miscellaneous Application No. 68 of 2022 by Chamber Summons wherein she raised a preliminary point of law that the Court lacked pecuniary 25 jurisdiction because the Cross Petition has a prayer in respect of matrimonial property whose value is beyond the pecuniary jurisdiction of the Magistrates Courts. In reply, the Appellant filed an Affidavit in Reply to the effect that the Court had jurisdiction because the property or land alleged by the Respondent to be matrimonial property is not owned by

the Appellant. He averred that the said property is owned by Acentric Limited and he attached a statement of search from the Ministry of Lands as proof of ownership.

The Magistrate allowed the Application holding that the Court lacked jurisdiction to hear 5 and determine Divorce Cause No. 62 of 2022 and accordingly dismissed the Divorce Cause. The Appellant being dissatisfied with the decision of the Court sought for the leave of the Court to appeal against the decision hence this Appeal.

#### **The Appeal**


10 The grounds of the Appeal are contained in the Memorandum of Appeal and they are that:

- 1. (a) The Learned Trial Magistrate erred in law and fact when he failed to inquire into the ownership of Kyadondo Block 242 Plot 488 and disregarded the uncontested ownership evidence thereby arriving at the erroneous finding that the Trial Court lacked pecuniary jurisdiction; - 15 (b) The Learned Trial Magistrate erred in law and fact when he failed to establish whether Kyadondo Block 242 Plot 488 forms part of the subject matter in Divorce Cause No. 62 of 2022 thereby relying on land in which neither party to the suit has a right of interest. - 2. The Learned Trial Magistrate erred in law when he failed in his duty to evaluate the 20 entire evidence and thereby arrived at wrong conclusions occasioning a miscarriage of justice.

#### **Preliminary Point of law by Counsel for the Respondent**

Counsel for the Respondent submitted that grounds 1(a) and (b) are bad in law for being 25 argumentative and setting out a narrative contrary to Order 43 Rule 1 (2) of the Civil Procedure Rules thereby rendering the Memorandum of Appeal and therefore, the Appeal defective. He cited Black's Law Dictionary, 9th Edition at page 1302 which defines argumentative pleading as:

*"A pleading that states allegations rather than facts, and thus forces the Court to infer or hunt for supporting facts."* He also relied on the Court decision of *Kitgum District Government & Anor Versus Ayelaa Civil Appeal No.8 of 2015.*

As earlier stated, at the time of writing this Judgement, Counsel for the Appellant had not 5 filed a rejoinder. Therefore, there was no response to the preliminary point of law.

- However, having read the grounds of Appeal, I find that they are not argumentative as raised by Counsel for the Respondent. I agree the grounds would have been clearer but they are not argumentative. This preliminary point of law is therefore over ruled and accordingly dismissed. I will proceed to determine the Appeal on its merits. - 10

# **Resolution of the Grounds of Appeal**


The duty of the 1st Appellate Court is to re-evaluate the evidence of the Trial Court as a whole and come to its own conclusion. However, the Appellate Court should be mindful of the fact that it didn't have the opportunity of physically observing the parties testify.

15 [**See:** *Bogere Moses & Another versus Uganda SCCA No. 01 of 1997, Uganda versus George Willian Ssimbwa SCCA No. 03 of 1997, Kifamunte Henry versus Uganda SCCA No. 10 of 1997, Banco Arabe Espanol versus Bank of Uganda SCCA No. 08 of 1998*].

# **Ground 1(a) (b) and 2**

- 20 Counsel for the Appellant argued all the grounds concurrently and this Court will also resolve them accordingly. She argued that the Appellant and the Respondent are both Ugandans/ Africans who celebrated their marriage at St. Charles Lwanga Catholic Church Ntinda which gave the Magistrate's Court at Nakawa the jurisdiction to handle the Divorce Petition between them. - 25 Counsel contended that when the Respondent introduced the issue of matrimonial property in the Cross Petition and the Appellant having disputed ownership thereof, the Court had a duty to determine whether the land comprised in Kyadondo Block 242 Plot 488 was matrimonial property *prima facie*. According to her, there was no need to undergo trial

because what was presented to the Court in the Affidavits of the parties was sufficient for the Court to establish that *prima facie*, the property alleged to be matrimonial was registered in the name of a 3rd party (Acentric Ltd) and neither the Appellant nor the Respondent has an interest therein. She insisted that the Respondent did not adduce *prima*

5 *facie* evidence or proof of ownership of Kyadondo Block 242 Plot 488 while the Appellant adduced evidence to show that the property was registered in the name of a 3rd party. She invited the Court to consider the decision of the Court in the case of *Imelda Gertrude Basudde Nalongo Versus Tereza Mwewulize & Anor HCMA No. 402 of 2003.*

On the other hand, Counsel for the Respondent contended that the Respondent averred in 10 her pleadings both in the Divorce Cause and in the Miscellaneous Application that Kyadondo Block 242 Plot 488 is the matrimonial home where she lived with the Appellant and the child before the separation and that the Respondent made both direct and indirect contribution towards its construction. He also argued that the Respondent stated that the property was valued at about UGX 300M (Uganda Shillings Three Hundred Million only) 15 which is way beyond the pecuniary jurisdiction of the Magistrates Court. He insisted that the Trial Magistrate rightly declined to delve into issues of ownership of the property and also Divorce Cause No. 62 of 2022 because if he did, the entire proceedings would be a

nullity for lack of pecuniary jurisdiction.

#### 20 **Court's consideration of ground 1(a) (b) and 2**

Section 207 (1) (b) of the Magistrates Courts Act Cap. 16 provides that:

*"Subject to this section and any other written law, the jurisdiction of Magistrates presiding over Magistrates Courts for the trial and determination of causes and matters of a civil nature shall be as follows- (a) a Chief Magistrate shall have jurisdiction where the value of the subject matter in dispute does*

25 *not exceed fifty million shillings and shall have unlimited jurisdiction in disputes relating to conversion, damage to property or trespass."*

Section 3 of the Divorce Act gives the Magistrates Courts jurisdiction to entertain Divorce Petitions where parties are Africans.

This Court has previously held that Magistrate's Courts have jurisdiction to handle Divorce Petitions where both parties are Africans even when the matrimonial assets involved are of a higher value than the pecuniary jurisdiction in the Magistrate's Courts. [See: *Margaret Mbusa Okoth versus Elisha Bafirawala Civil Appeal No. 13 of 2021 (unreported)*]. We

5 still hold the same view and agree with Counsel for the Appellant that the Trial Magistrate had jurisdiction to handle Divorce Cause No. 62 of 2022 even when the matrimonial assets are above his pecuniary jurisdiction in Civil matters.

However, and without prejudice to the above finding, I find that this matter has peculiar 10 circumstances from the *Margaret Mbusa* case (supra) where both parties submitted themselves to the jurisdiction of the Magistrate's Court but the Appellant only challenged the jurisdiction of the Trial Court on Appeal. This Court observed:

*"Also, I find the Appellant's contention as to the jurisdiction of the Trial Court an afterthought. It should be noted that the Appellant too filed a Cross Petition for Judicial Separation in the same Magistrates' court*

- 15 *as Divorce Cause No. 17 of 2017 was filed. This act shows that the Appellant knew that the said Magistrates' Court had the jurisdiction to handle the matter. Otherwise, she should have raised it as a preliminary objection either in her pleadings or at the start of the hearing in the Trial Court but she instead brings up the issue of jurisdiction way later when the matter has been determined. The Appellant was always legally at all levels of this suit and I believe that the lawyer would have pointed out the issue of* - 20 *jurisdiction from the beginning of this matter had they thought that the Trial Court and/or Magistrate did not have it."* [Emphasis Mine]

On the contrary, the Respondent in the instance case from the onset challenged the jurisdiction of the Trial Court and declined to subject herself to it by filing Miscellaneous

- 25 Application No. 68 of 2022. The Trial Magistrate who had jurisdiction made a finding that he had no jurisdiction. For that reason, therefore, I find that it is not proper for this Court to insist that this matter be referred back to the Lower Court for handling. I am fortified by the fact that the High court is clothed with unlimited original jurisdiction and can conveniently handle this matter. This will not occasion any miscarriage of justice to any of - 30 the parties.


# **Conclusion**

In light of the above findings, this Appeal partly succeeds to the extent that this Court is in agreement that the Trial Magistrate erred when he ruled that he had no jurisdiction to handle a Divorce Petition where the value of the matrimonial assets exceeded his pecuniary

5 jurisdiction in Civil matters.

However, this Court declines to order the Trial Magistrate to hear and determine Divorce Cause No. 62 of 2022 on its merits because of the reasons given above.

The parties have the discretion to file the Divorce Petition in the High Court which has unlimited original jurisdiction.

10 Each party shall bear its own Costs in this Appeal.

**Dated at Kampala this 28th day of September 2023.**

……………………………

15 Alice Komuhangi Khaukha **JUDGE** 28/09/2023