Hough v Hough (Divorce Cause 1 of 2006) [2010] UGHC 234 (25 February 2010)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT-01-CV-DC-0001/2006.

## **MARGARET R. HOUGH .................................... VERSUS**

ALLAN DAVID HOUGH ....................................

## **BEFORE: THE HON. MR. JUSTICE RUGADYA ATWOKI JUDGMENT**

The petitioner and the respondent are both British nationals resident in Uganda. They used to live in the United Kingdom and on 12/12/1997 they got married at the Old Blacksmith's shop, Gretna District Scotland. An extract of the entry in the Register of Marriages was exhibited – exhibit PE1. There were no issue to the marriage but both the petitioner and the respondent have children from earlier marriages.

Prior to the solemnisation of the marriage the parties entered into a pre nuptial agreement dated $24^{th}$ November 1997 – exhibit PE2, which was intended to govern the parties' respective property rights before, during and after marriage, and for other eventualities.

The couple lived at No. 8 Ivy Lane Macclesfield Cheshire before and after the solemnisation of the marriage. On 11<sup>th</sup> January 2003 they moved to Uganda and started living at Kasusu, Nsorro in Fort Portal, Kabarole District.

Problems arose and eventually the petitioner brought this petition seeking the dissolution of the marriage on grounds of adultery and cruelty, while the respondent cross petitioned also seeking dissolution of the marriage on the ground of cruelty. Each agree that the marriage has irretrievably broken down and seek decree nisi to end the marriage.

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The petitioner also seeks payment of housekeeping money which the respondent was supposed to contribute but did not, money she spent on the welfare of respondents family members, money she spent on respondents retrieval of his passport and other documents plus the cost of the air ticket when she took back the respondent to UK, and left him at Manchester airport. She also seeks damages and costs of the petition.

The respondent seeks from the cross petition a non molestation declaration against the petitioner, division of properties and costs of the cross petition.

At the commencement of the hearing, the following were agreed.

- 1. The petitioner and the respondent were on 12/12/1997 married in Gretna Green Scotland. - 2. There were no issue to the marriage. - 3. The parties signed a pre nuptial agreement in respect of the jointly owned and privately owned properties prior to the marriage. - 4. After the solemnisation of the marriage the parties lived at No. 8 Ivy Lane Macclesfield, UK and eventually moved to Uganda on 11/1/2003 and lived at Nsorro in Fort Portal. - 5. The parties ceased to live together under one roof as husband and wife on 27/12/2005. - 6. The marriage has irretrievably broken down. - 7. The parties have not connived or colluded in presenting the petition and cross petition. - 8. Neither party has condoned the acts of the other leading to the petition and cross petition. - 9. The three immovable properties $-2$ in UK and 1 in Uganda were acquired by the petitioner before the solemnisation of the marriage.

The issues for courts determination are thus;

- 1. Whether there are grounds for the dissolution of the marriage. - 2. Whether the pre nuptial agreement is valid.

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- 3. What property, if any should be distributed and in what proportions. - 4. Whether the petitioner is entitled to the claims set out in paragraph 17 of the petition. - 5. What remedies are available to the parties.

Before delving into the above issues I will first deal with the matter of jurisdiction, considering that both parties are UK nationals and their marriage was solemnised in that country.

The Divorce Act Cap 249 in S. 1(a) provides as follows;

- ' Nothing in this Act shall authorise - - (a) the making of any decree of dissolution of marriage unless the petitioner is domiciled in Uganda at the time when the petition is presented;'

S. 3 thereof provides that in all cases jurisdiction is to be exercised by the high court, save where all parties are Africans or where the petition is lodged for damages only, in which case the chief magistrate or a Grade I magistrate may entertain the matter. Subsection (3) of the same section provides that subject to the Act, the court shall exercise the jurisdiction in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England.

The above provisions are clear. For the petition and the cross petition to be competently before this court, the petitioner and the cross petitioner must have been domiciled in Uganda at the time when the petition and the cross petition were presented in court. See Droogembroech v. Karin Coleen & Gibbons Divorce Cause No. 6/1992, [1992] IV **KALR 18.**

Domicile is defined in <u>Blacks Law Dictionary</u> ( $8<sup>th</sup>$ Edition) at page 523 as,

'The place at which a person has been physically present and that the person regards as home; a person's true fixed principal and permanent home, to which

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that person intends to return and remain even though currently residing elsewhere.'

Domicile refers to a place or country where a person resides with an intention to remain there permanently - animus manendi. Every person has a domicile of origin acquired at birth from his or her parents, but may subsequently acquire a domicile of choice in a country other than the country of that of domicile of choice by the fact of residing there with the intention to remain there permanently. Residence is a physical act and refers to presence in the locality. Where this personal presence is accompanied by the required state of mind, neither its character nor its duration is in any way material. See <u>Thornhill v.</u> Thornhill [1965] EA 268 (CA) at page 274.

Once a conclusion has been arrived at that there has been a fixed and settled intention of permanently residing in a new place, coupled with an actual residence in that new place, then the change of domicile is effected, and will not be undone by mere subsequent fluctuations of opinion on the part of the settler as to whether his choice of the new residence has been wise, or by expressions which lead one to think that he entertained vague and floating ideas of going to reside elsewhere. Field v. Field [1964] EA 43 (CA) at page 46.

Under the common law, a woman at marriage automatically acquired the domicile of her husband i.e. dependent domicile. However under the Domicile and Matrimonial Proceedings Act of 1973 the obnoxious common law concept of a wife's dependent domicile was abolished. Henceforth a married woman is free to acquire an independent domicile just like any other person. That was the state of affairs when the petitioner and the respondent entered into marriage on 12/12/1997 in UK. From that time up to the time they moved out of the UK, they were domiciled in the UK. However on 11/1/2003 they both shifted to Uganda and expressed their respective intentions to live in Uganda permanently.

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In Uganda the constitution in Article 21 (2) prohibits discrimination on grounds of, inter alia sex, while Article 33(1) states that a man and woman have equal rights at and in marriage, during marriage and at its dissolution. The common law concept of dependent domicile is untenable in the face of the provisions of equality and non discrimination between the sexes which are enshrined in our constitution. In my view a married woman is free to opt for and acquire a domicile of her choice independent of that of her husband. To hold otherwise would in my view, be discrimination against women which is unconstitutional.

The petitioner in paragraph 1 of the petition stated thus;

nationality but 'That the petitioner is an adult female of sound mind, of British permanently resident in Kasusu-Nsoro in Fort Portal.'

Further in paragraph 8 thereof she stated that,

'That on her return to Uganda, the petitioner made a conscientious decision to remain here. She has a permanent house at Nsoro and works as a volunteer psychiatric nurse at Buhinga hospital...'

In her evidence in court, the petitioner reiterated the above position. She stated that she would only occasionally visit the UK. Her intention was to reside in Fort Portal permanently. She was in fact living in Fort Portal.

The respondent on the other hand also left UK on 11/1/2003 and came to Fort Portal in Uganda. He has since been living in Uganda. He stated in paragraphs 3 and 7 of the reply to the petition that the couple were not permanently resident in Fort Portal, but rather in UK, at Ivy Lane and St. Barnabas Courts, 'where their matrimonial home has always been,' and 'where both your petitioner and your respondent regularly reside.'

Three things are to be noted here. First, there cannot be two matrimonial homes for the same family at the same time. The couple could not have one matrimonial home at No. 8

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lvy Lane and at the same time have a yet other matrimonial home at No. 10 St. Barnabas Courts.

Secondly, the testimony of the respondent in court was that while in UK, the couple lived at No. 8 Ivy Lane. This was confirmed by the testimony of the petitioner. This was one of the agreed matters at the scheduling conference. The couple never lived at St. Barnabas Court. The petitioner in evidence in court stated that St. Barnabas Court was rented out to tenants. That evidence was confirmed by the respondent. It was not by any means a matrimonial home.

The third and last matter to note was that from their respective testimonies in court, the couple had not 'regularly resided' in UK since 11/1/2003 when they returned to Uganda, and not at all at No. 8 Ivy Lane. They were living at Nsoro in Fort Portal till December 2005 when the marriage hit the rocks and they separated. Even after that, both continued living in Uganda.

The evidence of the respondent was that he intended to reside in Uganda permanently. He told court that he had so planned since his retirement from British Telecom in UK. There was evidence to support the respondent in this assertion that he had an intention to permanently reside in Uganda. The petitioner told court that when the marriage hit the rocks, she decided to take back the respondent to UK. She put him on a plane and delivered him at his 'home' airport at Manchester, and left him there. But four months later the respondent found his way back into Uganda, and that was where he was living at the time the petition and cross petition were presented. He was not forced back, He returned on his own volition.

The evidence of the couple in court was that the respondent acquired a life resident certificate in Uganda, and that was stamped in his passport. When that passport got lost, amidst accusations that it and the other documents including the life resident certificate were stolen or hidden by the petitioner, a desperate attempt got underway to secure alternative documents. This was successful and a new passport was acquired together

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with a new life resident certificate. One with no intentions to reside in Uganda permanently would not have gone to such a length to secure such life residency.

In his evidence the respondent told court that upon his retirement, he intended to come to Uganda 'to start new life.', that when he came to Uganda his intention was to remain in Uganda permanently depending on the circumstances such as political unrest. He lived in Uganda at Fort Portal from January 2003 till early 2006, when he was returned to England. He came back four months later and has continued living in Uganda since then.

In *Thornhill v. Thornhill* (supra) the petitioner was employed by a company in which he had substantial shareholding. He wished to make Uganda his permanent home and intended to buy a house in Kampala. He was in the meantime living in a hotel. If his business was to go burst, he would relocate to Kenya or elsewhere, and if Uganda became like Ceylon (his domicile of origin) he would quit.

Court held that the onus of proving a change of domicile was on the petitioner, and the fact that he was not a Ugandan national was immaterial. The fact that he was living in a hotel was did not disprove his intention to reside in Uganda indefinitely. His evidence that should Uganda become like Ceylon he would leave could not be accepted as evidence of an intention not to stay in Uganda.

Court in holding that the petitioner had acquired a Ugandan domicile of choice stated thus;

'Merely because a person expresses the hypothetical opinion that if things do not go the way he hopes they will he might leave the country in which he has decided to establish his home, does not negative his present intention to remain permanently in that country, which is all that is necessary to acquire a domicile of choice therein.'

The respondents intention to remain in Uganda for life, coupled with his actual residence in Uganda which are not challenged, suffice to establish his domicile of choice in

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Uganda. It is immaterial and of no consequence that he is not a Ugandan national or that his remaining in Uganda would depend on 'circumstances such as political unrest'.

From the above I find and hold that the petitioner and the respondent each respectively acquired a Ugandan domicile of choice. For that reason the petition and cross petition are competently before this court.

I now turn to the substantive issues. The first issue was whether there were grounds for the dissolution of the marriage. In the case of <u>Uganda Association of Women Lawyers &</u> 5 Others v. Attorney General Const. Petition No. 2 of 2003, the constitutional court held that the provisions of S. 4 of the Divorce Act which sets out the grounds upon which a marriage may be dissolved apply to men as well as to women equally. The effect of that holding was that any of the grounds of divorce set out in the Divorce Act may be used singly or jointly by a man or a woman to found an action in divorce contrary to the position which existed prior to the constitutional court holding.

Musoke Kibuuka J. in Dr. Specioza Wandira Naigaga Kazibwe v. Eng. Charles Nsubuga Kazibwe Divorce Cause No. 3 of 2003 stated as follows in respect of the above holding;

'For as I understand the position of the law, after the decision of the Court of Appeal in constitutional petition No. 2 of 2003, each of the grounds for divorce specified in Section 4 of the Divorce Act Cap 249, is available equally to both the husband and the wife.

'It appears to me to be the law that both adultery and cruelty are distinctive grounds, each in its own right, upon any of which a decree nisi may issue. The petitioner in this case, therefore could obtain that remedy after proving to the satisfaction of this court either the ground of adultery or the one of cruelty or both.'

I respectfully agree. In the present case the petitioner sought to have the marriage dissolved on the grounds of adultery and cruelty. The cross petition was grounded on cruelty.

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With respect to adultery, the testimony of the petitioner was that sometime in April 2004 the respondent committed acts of adultery with the housemaid one Jennifer. She told court that when she went away for some business, the respondent took the opportunity and engaged in sexual intercourse with their maid Jennifer and rewarded her with shs. 30,000/-. Upon the petitioners return another house worker Baguma Patrick PW2 reported the incident to her. She confronted the maid Jennifer in the presence of the respondent and the maid admitted that indeed it happened, but more that she had slept with other men previously. This was a 15 years old girl. The petitioner told court that she was devastated and the respondent instead advised that the maid Jennifer be sacked.

Jennifer did not testify, but the co worker Baguma Patrick testified as PW2. He told court that the respondent instructed him to always knock on his bedroom window whenever he saw the petitioner returning home. He would do this before going to open the gate for the petitioner. Usually the maid Jennifer would be inside the house together with the respondent. He admitted that there were curtains on the bedroom window and he could not peep inside to see what was happening.

The petitioner told court that when she learnt of that incident of sexual intercourse, she feared for her life what with the prevalence of AIDS in the region. From that point on she denied the respondent conjugal rights.

The respondent denied the act or acts of sexual intercourse with the maid. He told court that he did not speak Rutooro language, save a few words while the worker Baguma could not speak English just like the maid. There was therefore no way he could communicate with the workers let alone engage one in sexual intercourse.

Baguma PW2 told court that while he could not speak English, the respondent used to communicate with him using the little Rutooro language which the respondent knew. In any event, the maid had modest education up to primary seven level which gave her sufficient knowledge of English to be able to communicate with the respondent. Since

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she was his main interest, she would pass on to him whatever instructions the respondent wanted to give to Baguma.

The petitioner's fears were fortified further about the respondent's adulterous lifestyle when the respondent refused her advice that they go for an HIV test to ascertain their serology status.

The standard of proof of adultery in matrimonial causes is higher than that in ordinary civil suits, but not as high as one beyond reasonable doubt which is required in criminal cases. See Gower v. Gower [1950] 1 All. ER 804, and Bater v. Bater [1951] P 35. In Habyarimana v. Habyarimana [1980] HCB 138 it was held that when an allegation of adultery has been made, it must be proved to the satisfaction of the court. However the evidence need not reach certainty. But it must carry a high probability. See also Denis v. Denis [1951] 2 All ER 51.

Ntabgoba PJ., in George Nyakairu v. Rose Nyakairu [1979] HCB 261 put the matter in practical perspective when he said;

'In allegations of adultery, it is not necessary to prove the direct fact of adultery for that is almost to be inferred from circumstances as a necessary conclusion since it is indeed very rare that parties are ever surprised during the direct act of adultery.'

Proof of adultery by direct evidence is rare due essentially to the secrecy of the act involved. It will invariably be proved by circumstantial evidence leading to the inference of guilt on part of the respondent. Association, opportunity, circumstances like illicit affection and familiarity can lead to an inference upon which court can find adultery. The presence of the parties in the same bed or bedroom in circumstances which are not readily explainable makes the inference stronger. See Maria Pavlovna Kagimu v. William Kagimu Matrimonial Cause No. 2 of 2001.

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$10$ In the present case, the petitioner got information that the respondent was engaged in adulterous acts. She confronted the respondent. His response was that the maid be sacked. That was not a denial of the act. The maid herself admitted the act in her presence and in the presence of the respondent.

The co-worker of the maid, Baguma PW2 told court that the respondent instructed him to knock on his bedroom window to warn him when the petitioner would be approaching. This would be at the time when the respondent would be ensconced in the house with the maid. That was the opportunity and the circumstances which would lead to the irresistible inference that there was an adulterous relationship between the respondent and the maid.

The evidence of the petitioner was further that on one occasion she witnessed an incident when the respondent was kissing and generally romancing with a lady whom he later took into his room at Leisure Take lodge in Fort Portal. The petitioner told court that she was at one time confronted by girls who threatened her life with acid burning as they were in a relationship with the respondent and there was nothing she could do about it as she was\_advanced in age. This evidence was not contradicted. This goes to show the respondent as a man of loose moral character and easy going disposition.

The petitioner denied any act of sexual intercourse with the maid or anyone else. I found the testimony of the petitioner more believable. She was no doubt a distraught woman. She however maintained a reasonable composure and appeared truthful. Baguma Patrick was equally truthful. He was a mere worker in the household. He was not related to either the petitioner or the maid. I found these two to be truthful witnesses and I accepted their evidence.

The respondent appeared to be a carefree and at times even arrogant person. His character and attitude were at best cavalier and at worst Machiavellian. His denials of acts of adultery were superficial and not convincing. One could even detect a degree of satisfied glee in the respondent in respect of these acts complained of by the petitioner.

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I would not hesitate to find as I do that the respondent was involved in acts of adultery with the maid Jennifer. That alone would suffice as a ground for the dissolution of the marriage.

The petitioner and the respondent accused each other of cruelty. The petitioner complained of drunkard ness, immoral flirtatious behaviour, taunts and torments and attempt to poison her. The respondent complained of cruelty by way of being thrown out of the house, being denied conjugal rights, confiscating his passport and other documents, abuse and harassment in public, denial of use of joint car, and converting his money and denying him use of the same. The cruelty complained of consisted of acts of a non violent nature.

Halsbury's Laws of England 3<sup>rd</sup> Edition Vol. 12 pages 270 – 277 set down the general rules regarding cruelty which is of a non violent nature as follows;

'The general rule in all questions of cruelty is that the whole matrimonial relations must be considered and that rule is of special value when the cruelty consists of non violent acts but of injurious reproaches, accusations, complaints and taunts. Before coming to a conclusion the judge must consider the impact and personality and conduct of one spouse on the mind of the other and all incidents and quarrels between the spouses must be weighed from that point of view. In determining what constitutes cruelty regard must be laid to the circumstances of each case, keeping always in view the physical and mental condition of the parties and their character and social status.'

In Berchamans Gakwavu v. Mariana Gasengayire [1977] HCB 322 it was held that like adultery, in cruelty the standard of proof is slightly higher than a preponderance of probabilities required in ordinary civil cases. The courts cannot examine every petty squabble in a marriage to build a case of cruelty. In order to constitute cruelty in the legal acceptance of the term, the conduct must be such as to cause danger to life, limb or health, bodily or mental or to give rise to a reasonable apprehension of such danger.

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The petitioner complained that the respondent became a habitual drunkard. He would return home in the wee hours of the morning, too drunk to get himself out of the vehicle and the workers would be the ones to help put him into bed. This testimony was corroborated by that of Baguma Patrick PW2, who told court that the respondent often returned home in a drunken stupor, unable to move on his own. He and other fellow workers had to literally drag him into the house.

The petitioner further testified that the respondent's drunken ness got to such alarming levels that he could not even help himself out of bed to the bathroom. He resorted to urinating in an empty tin of blue band margarine which he would then push under the bed. This evidence was not denied by the respondent.

Obviously the bad smell, the fact that someone had to clean up the mess in the room, and even throw out the urine or whatever would not have poured out of the tin are matters which would no doubt affect the petitioner's health or anyone else for that matter adversely. What is more all these were done while the workers knew about them. This was humiliating to the petitioner.

An act which is humiliating to the petitioner before strangers and the public, including excessive drinking, general unkind or inconsiderate attitude to the other spouse will be taken as an act constituting cruelty.

The respondents excessive drinking amounted to inconsiderate attitude to the respondent. It amounted to mental cruelty and had a toll on her health. She told court hat she had to get medical help as a result. As was held in *Colbeck v. Colbeck* [1961] EA 431, excessive drinking amounts to cruelty. I therefore find that the respondent was involved in acts of cruelty towards the petitioner.

The respondent told court that the petitioner engaged in acts of cruelty to him. He cited the fact that the petitioner threw him out of the matrimonial home at Kasusu, and he was forced to sleep in a lodge. The petitioner did not deny throwing the respondent out of the

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house. She justified this on the respondent's immoral behaviour and his excessive drinking, particularly when he spent the night at Christmas time dancing away throughout the night and never returned home till the afternoon of the next day and yet the petitioner's son, who lives in England was also around, which greatly embarrassed and humiliated her.

This was a white person who, unlike most if not all Ugandans did not have members of an extended family or relatives around to whom he could seek refuge. The petitioner testified that the respondent had no means of survival apart from herself. Throwing him out meant that he was left with no means of survival. To my mind the act of chasing the respondent out of the matrimonial home and leaving him literally on the street because the marriage was running into turbulent waters was an act of cruelty.

The respondent complained that the petitioner denied him conjugal rights. This was admitted by the petitioner. She told court that she did this when she discovered that the respondent was having sexual affairs with the maid and others and so had to protect herself from sexually transmitted diseases (STD's) and especially AIDS.

It was argued that the petitioner did not adduce evidence to show reasonable suspicion that the respondent was having extra marital affairs in order to justify her fears of STD's. The petitioner told court how she got information of the sexual affairs between the respondent and her maid, and how she confronted both and the maid admitted that indeed there was such a sexual relationship between the two. The petitioner also extracted from the maid information to the effect that she had slept around prior or maybe even between her encounters with the respondent.

What was more, the respondent revealed how he was sleeping around and having unprotected sex. In light of the above revelations and discoveries, the petitioner asked the respondent to go for an HIV test with her but he refused. In that state of affairs well aware of the seriousness of the AIDS pandemic in this country, what other protective measure was expected of the petitioner. It was only just-and prudent and indeed practical

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that she kept herself safe and the surest way was to stop having sex with the respondent. I therefore found that there was no cruelty on part of the petitioner when she refused to give the respondent conjugal rights.

The respondent complained that the petitioner used to abuse him both in public places and at their home which the petitioner denied. The evidence of Baguma PW2 was to the effect that he witnessed the petitioner abusing the respondent. This corroborated his evidence. This was one of the prayers in the cross petition that the petitioner be ordered to stop her public harassment and abuse of the respondent.

Persistent abuse of a spouse in the presence of subordinates and workers is humiliating. It amounts to cruelty. I found that the respondent was subjected to cruelty by way of abuse and public humiliation.

It was the respondent's complaint that the petitioner confiscated his passport, driving permit, residence certificate and other personal effects. The petitioner told court that these items went missing and when she sought to take the respondent back to UK when the relationship was floundering, she got money to the tune of shs 3 million and fresh documents were processed. This was admitted by the respondent. Surely the petitioner would not confiscate his travel documents and at the same time spend so much money to have new ones processed. That complaint was not proved.

The respondent complained that the petitioner denied him use of the vehicle which was jointly owned. His own evidence is to the contrary. He told court that he used to drive away and would return but that the petitioner would lock him out of the house. Once the relationship run aground the issue of vehicles became contentious as the petitioner claimed that she had sole and exclusive ownership of the same. It was therefore not an act which would constitute cruelty as the denial came only when matters of divorce and its attendant issues of division of property came into play.

Finally there was a complaint that the petitioner committed an act of cruelty when she converted his money and thereby denied him its use. I found this an empty complaint.

The petitioner admitted that with the assistance of her son, she transferred the respondent's money into her account in UK. This was upon realising that the respondent was not contributing to the up keep of the family as agreed in the pre marital contract. When the respondent demanded for its return and moreover through court process, the full amount plus interest and legal fees was returned and case closed. There was therefore no denial which would constitute cruelty.

All in all I find that the petitioner proved to the satisfaction of the court that the respondent committed acts of adultery and cruelty. It was also proved to the satisfaction of court hat the respondent was also subjected to acts of cruelty by the petitioner. This was proof that there was irretrievable breakdown of the marriage. There was no evidence of collusion in presenting the petition and cross petition. There was no evidence that any of the parties condoned any of the acts complained of. These were sufficient grounds to dissolve the marriage on grounds of adultery and also on the ground of cruelty in respect of the petition, and on the ground of cruelty in respect of the cross petition. The first issue is answered in the affirmative.

The second issue was whether the pre nuptial agreement was valid. There was no dispute about the existence of the pre nuptial agreement. The parties agreed at the commencement of the trial that a pre nuptial agreement was signed by them in respect of jointly owned properties and privately owned properties prior to their marriage. This agreement was tendered in court as exhibit PE2.

It was not disputed that the agreement was drawn by counsel for the petitioner. It was duly signed by both parties and properly witnessed. There was no suggestion of fraud or coercion by any of the parties thereto. Indeed when asked in cross examination why he signed the agreement, the respondent told court that it was because he did not want to rob the petitioner. When further asked whether he had ever challenged the agreement during their marriage, the respondent told court that once he asked why the agreement should be maintained and the answer was that since under that agreement no one was cheating the other so it should remain, and remain it did.

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I looked for reasons why the pre nuptial agreement should be declared void and unenforceable and I could not find any. Counsel for the respondent did not come up with any reason either even though he drew the reply to the petition in which the agreement was impugned. Same counsel stated in his written submissions on this subject as follows; 'we have looked at exhibit PE2 and the evidence adduced by the parties and there

are no circumstances that would vitiate or invalidate the pre nuptial agreement..'

That concession was with respect properly made and it would end all arguments about that issue. However learned counsel asked that the $2^{nd}$ issue be varied to read, 'Whether there are circumstances that require variation of the pre nuptial agreement?'

The reasons and I presume circumstances which learned Counsel raises are the very matters which the pre nuptial agreement which he admitted was valid, provided for. These are that the respondent contributed towards the maintenance of the petitioners properties both in UK and in Fort Portal, and so the improvements he made thereon ought to be recognised.

The respondent in this argument only talks of No 8 Ivy Lane property as he concedes that there was no development he ever carried out on St. Barnabas Court property. He also stated that he carried out developments at the home in Kasusu Nsoro Fort Portal.

Paragraph 1.4 of the pre nuptial agreement exhibit PE2 reads thus;

'The prospective wife remains the sole legal and beneficial owner of the property described in Part 1 of the schedule ('the home') together with the whole of its furniture and equipment and contents (the contents).

Paragraph 3. of the exhibit PE2 states thus;

'Notwithstanding any contribution made by the prospective husband to the maintenance or improvement of the home the prospective husband acknowledges that he has not acquired and will not acquire any beneficial interest in the home nor in the proceeds of sale thereof and that the ownership of the beneficial interest will remain unchanged.'

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Paragraph 5 deals with 'breakdown in the parties relationship'. It states in sub paragraph $5.1.$ thus;

'any money, property or pension rights and entitlements belonging to the prospective wife as at the date of this agreement or acquired by her after this agreement and held in her private account or purchased with monies drawn from her private account shall remain her exclusive property free from claim by the prospective husband.'

These provisions are so very clear that the property of the petitioner at the time of the agreement is to be and remain hers exclusively whether or not the respondent carried on any maintenance or developments. The property at No. 8 Ivy Lane was clearly set out as such property.

The property at Kasusu Nsoro was such property which belonged to the petitioner at the time the agreement was signed. Even the respondent so agreed in his testimony in court. This was one of the agreed matters at the commencement of the hearing.

In the event therefore where there is no disagreement that the pre nuptial agreement is valid and therefore binds the parties signatory thereto, there is nothing to vary as the matters sought to be varied are the very ones the agreement provided so fully and succinctly for. Parties must be bound by the terms of their contracts which they freely enter into. The answer to the $2^{nd}$ issue is therefore that the pre nuptial agreement is valid.

I did not find it necessary to go into the provisions of S.27 of the Divorce Act which deals with settlements, which Counsel for the respondent sought to rely on to vary the pre nuptial agreement. That provision is of no relevance to the matters at hand. It refers to settled property, and in any event, only in relation to parties in respect of whom a decree absolute for the dissolution or nullity of marriage has been issued. No such situation pertains in the present case, at least not yet.

The 3<sup>rd</sup> issue was what properties should be distributed and if so in what proportions. The answer to the $2^{nd}$ issue was that the pre nuptial agreement is valid. It is therefore enforceable against the makers and these are the petitioner and the respondent.

The pre nuptial agreement makes clear provisions regarding ownership of property acquired before and during the marriage. Nine matters were agreed at the commencement of the hearing. The ninth agreed matter was stated thus;

'The three immovable properties – 2 in UK and 1 in Uganda were acquired by the petitioner before the solemnisation of the marriage.'

The three properties referred to are first, the house in UK known as Plot 8 Ivy Lane Macclesfield, which was vested in the petitioner as the sole legal and beneficial owner thereof, notwithstanding any improvements or maintenance thereof. This is categorically so stated under clauses 1.4, 1.6 and 3 of the agreement. The second is the house known as No. 10 St. Barnabas Court, Macclesfield which was provided for in the agreement in clauses 1.5, 1.6 and Part II (a) of the schedule thereof. The third property was the one at Kasusu Nsoro in Fort Portal. This came for under clause 5.1.1 of the agreement. This property was acquired by the petitioner before the marriage, and this was duly acknowledged by the respondent in the agreed facts and during his testimony in court. These properties remain under the exclusive ownership of the petitioner.

That then leaves for consideration only the properties which the petitioner acquired during the subsistence of the marriage. These were brought out by the petitioner in her testimony in court. These are land at Kiboha Mugusu, and land at Garwenya Buhesi both in Kabarole Distirct. The petitioner told court that the money for their purchase came from the joint account in Fort Portal. She told court that the respondent did not contribute any money to the joint account in Fort Portal, or indeed even in UK. So this was her own money with which she bought these properties, and the respondent was not entitled to the property at all.

The pre nuptial agreement provided in clause 5.1 thus;

'5.1 It is acknowledged by the parties that in the event of a breakdown in their relationship whether before or after the marriage in circumstances which require the distribution between them or sharing out of money or property held by them and subject always to the approval of court, then

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

5.1.3 any property belonging to the prospective wife and the prospective husband jointly as at the date of this agreement or acquired by them after this agreement and held in their joint account or purchased with monies drawn from their joint account shall be regarded in the first instance as owned by them in equal shares.'

Gifts were excluded from the above. It was acknowledged by both parties that the above properties were purchased with monies from their joint account. On this may be added the two vehicles, the pajero and the pick up. It only remains to decide whether these properties were jointly owned as the respondent would like the court to believe, or they were owned solely by the petitioner in accordance with the pre nuptial agreement as she would like court to believe.

Where it is found that the properties were jointly owned, then the presumption would be that they were owned in equal shares. Their division would then follow similarly, unless the presumption was rebutted. That there is such a rebuttable presumption is to be found in clause 4 of the agreement which reads that;

## '4. FUTURE PROPERTY

It shall be presumed that;

4.1. Any property acquired by the parties with monies drawn from the joint account shall belong to the parties jointly and in equal shares.

4.2 Any property acquired by either party with monies drawn from their private accounts shall belong exclusively to the party who paid for it.'

「費」「警

Where the monies come from only one party even if it is placed in the joint account, and property is purchased using such monies and the property bought there from is registered in the names of that party alone, then the presumption of such property being jointly owned and with equal shares will have been rebutted. The petitioner told court that all the money in the joint Fort Portal account came from her own private sources in UK and in Uganda. These included part of the rent from her property at No. 10 St. Barnabas Court, proceeds from her bonds and such other securities, and previous savings in UK, her pension money and salaries. She produced statements from her various bank accounts in UK to this effect.

The respondent told court that he contributed to the joint account in Fort Portal. His assertion was that he made contributions to their UK joint account, and from that account, money was remitted to the Fort Portal account with one Alex Butele the son of the petitioner holding powers of attorney for the couple and thereby helping in the disbursement and transfer of the monies. It was the assertion of the respondent that money was being paid into their joint account in UK regularly during the currency of their marriage, including his pension payments.

Court directed that the bank statements of the joint account be availed so that the respondent indicates those transactions, unless of course he had other ways of showing the payments into the joint account from his sources.

When the voluminous statements were availed, exhibit P15, the respondent pointed out two items which were highlighted in red on the $1^{st}$ and $2^{nd}$ sheet. The first was a statement of the couple's joint account at Abbey National. The highlighted item was a transfer of £200 from the joint account into another account and it was termed 'regular transfer payment'. That could not have been a transfer from the respondent into the joint account.

The second highlighted item was in an account of the petitioner only, also at Abbey National. The item was a transfer of £100 from that account into another account No. 04038551. The petitioner in cross examination told court that the account No 04038551 was her private savings account. That means the amount referred to was being transferred

from the petitioner's one account into her other account. Again that was not by any means a transfer of money from the respondent into the joint account.

The respondent told court that the money which he used to remit to the petitioner for use in their joint account used to go to the petitioner's private savings account. The reason he gave for this change of modus operendi from what was agreed in the pre nuptial agreement was that if the money went into the joint account it would get lost. That was bizarre reasoning. How would money get lost from the couple's joint bank account, and how come only his contributions therein were likely to get lost, and in any event, get lost from whom?

The Evidence Act S.101 in subsection (1) provides that whoever desires a court to give judgment as to any legal right or liability dependent on the existence of facts which he or she asserts must prove that those facts exist. In subsection (2) thereof it provides that when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. The respondent failed to discharge the burden of proof that he made any contributions to the joint account whether in UK or in Fort Portal, a fact which he asserted.

The respondent having failed to show that he made any contribution to the joint account, whereas the petitioner availed statements of accounts showing money which was coming into the joint account from her sources, left this court with the inevitable conclusion that the properties purchased in Fort Portal were from the petitioners money only. The presumption of joint ownership and equal shares was rebutted. Those properties therefore belonged to the petitioner alone.

There was a third vehicle, a Land rover Discovery which the petitioner said she used to drive. The respondent told court that the money to purchase this vehicle or at least part thereof, came from his terminal benefits from British Telecom. He testified that when he retired, he received his pension benefits of £80,479, and this money went to the joint account. Further testimony from the respondent elicited information that as a matter of fact the money went to his personal account. He told court that the vehicle was registered

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in the names of the petitioner's son only for purposes of complying with UK regulations regarding export of used vehicles. He did not produce any documentary evidence showing payment or a transfer of a sum anywhere near resembling payment for a vehicle or indeed any sum at all in respect thereof.

The petitioner told court that the respondent did not contribute even a coin in the purchase of that vehicle. It belonged to her son and she contributed to its purchase as she always assisted her children single handed without any support from the respondent. Whenever the son would come to Uganda, he would drive it. The vehicle continued to be registered in the names of that son and has never been transferred into the joint names of the couple or the names of any of them since it arrived in Uganda.

The respondent left unanswered the question why the vehicle remained registered in the names of the petitioner's son after arriving in Uganda since the reason for doing so in UK had ended. Section 30 of the Traffic And Road Safety Act 1998 provides that;

'The person in whose name a motor vehicle ... is registered shall, unless the

contrary is proved, be presumed to be the owner of the motor vehicle.' Odoki JSC (as he then was) in Fred Kamanda v. UCB SCCA No. 17/1995 held that a registration card is evidence of ownership as the person in whose name it is registered is presumed to be the owner of the vehicle unless proved otherwise. A registration card is prima facie evidence of title and it is a document of title. The Land Rover Discovery is registered in the names of William Kyaruhanga. This person therefore is presumed to be the owner of the motor vehicle there being no evidence to the contrary.

Further in that respect, the said William Kyaruhanga was not a party to these proceedings. Court would not therefore make any decision affecting his proprietary rights without first giving him a hearing. See *Maria Naluvugo v. Isaack Hategekimana* [1977] HCB 71. The court would not therefore make any order in respect of the land Rover Discovery.

Having decided as I have above, the answer to the 3<sup>rd</sup> issue is that there is no property for distribution.

The $4^{th}$ issue was whether the petitioner was entitled to the claims set out in paragraph 17 of the petition. The petitioner set out various items of expenditure which she claimed from the respondent. Six items of expenditure were set out and follows;

- $i)$ A one way ticket to the UK in the sum of \$797. - $ii)$ $£3,950$ towards maintenance payments for Kristen Hough the respondent's daughter to avert court action of a maintenance claim against the respondent in the UK. - £1,360 drawn out of the joint account and paid to the respondent's family iii) members. - £1,000 being money paid directly out of the joint account in the UK by the $iv)$ respondent. - Shs. 3,000,000/- paid directly to the respondent to assist him obtain a new $v)$ passport and also regularise his immigration status in Uganda. - £43,600 being the sum total of monthly payments in maintenance monies $vi)$ (at £400 per month for the period January 1998 to December 2005) that the respondent had agreed to pay to the petitioner as his monthly contribution towards housekeeping.

TOTAL Shs. 178,907,509/- (using the exchange rate on 21/8/06 i.e. $\pounds$ = 3,495 and $$1 = 1,847$ ).

The respondent denied that he was liable to pay any of the above sums.

These were claims of money which the petitioner wished the respondent to pay back. They are to be treated like special damages. They had to be specifically claimed in the pleadings and strictly proved.

With respect to the item Nos. i) and $v$ ), the first was a one way ticket to Manchester. The other was a sum of shs 3 million which the petitioner gave to the respondent for purposes of securing a new passport and other immigration documents in order to facilitate his return to UK. The return to UK was dictated by the petitioner when the marriage was as good as over so far as she was concerned. In her testimony she told court that she felt it was her duty to return the respondent to his country of origin so that he does not die in

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Uganda. She therefore spent that money for that purpose, fully aware that the respondent had no money.

This was not a loan or payment for which she expected a refund. This was her way of saying good riddance to a person whom she believed had become more than an irritation to her. She accused him of trying to kill her through poisoning, though I may here add that I did not find that assertion proved. The expenditure was therefore in her interest. It would not be fair or just to make the respondent refund the money to the petitioner, which she spent to further her interests.

With respect to item No. ii), the petitioner sought a refund of £3,950 which she spent as maintenance payments for Kristen Hough the respondent's daughter to avert court action of a maintenance claim against the respondent in the UK. The respondent told court in respect of this matter as follows;

'It is true at one time I was in trouble over failure to pay maintenance for my daughter. The petitioner made the payment with her money - it came from her maintenance personal account. I begged the petitioner to pay my daughters because the petitioner had taken all my money. When I got back my money through my lawyers I never paid back the maintenance money.'

In other words, while the petitioner paid this sum towards the maintenance claim of respondent's daughter Kristen Hough from her private sources, the respondent did not repay the same to the petitioner even when he received all his money back from the petitioner. The money is still pending and it ought to be repaid. Item No. ii) is allowed.

Item No. iii) was in respect of a sum of £1,360 which was allegedly drawn out of the drawn out of the joint account and paid to the respondent's family members. This was done by the petitioner. She did not produce any documentary evidence to that effect. There was no mention of the person or people who were the beneficiaries of this amount. In her testimony in court she did not say anything about this item at all. The respondent

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told court that he was not aware of this expenditure. This item was not proved and it is accordingly disallowed.

Item iv) was in respect of £1000 which the respondent withdrew from the joint account in UK. The respondent conceded that he indeed withdrew this amount from the joint account. He told court that this was after realising that the marriage was over and when the petitioner had dumped him at Manchester airport virtually penniless. He only withdrew half and left half, which the petitioner also withdrew and the account was thereafter closed. The petitioner admitted this. There is nothing to refund therefore as parties appear to have agreed to share the money on the joint account equally.

Item vi) was the most problematic. It was a claim of £43,600 which was the sum total of money which the respondent was supposed to contribute towards housekeeping from the time the couple started living together as husband and wife up to the time they separated, at a rate of $£400$ per month.

The petitioner told court that in accordance with the pre nuptial agreement the couple agreed to share housekeeping expenses at a rate of £400 monthly each. The money was supposed to be paid into the joint account, and from that account all housekeeping expenditure was to be met. She told court that the respondent did not make his contributions as agreed, and so he should be ordered to make good his family obligations.

The respondent agreed that the couple agreed to contribute £400 monthly towards housekeeping. He told court that he initially had a standing transfer instruction to that effect, but that however, the petitioner advised that his contributions should go into her private account, whose statements were not availed to court. He stated that they lived together happily and shared everything including household expenses. He showed court documents of his earnings. He stated that even in absence of documentary evidence, surely he could not have spent close to 7 years with the petitioner without making any contributions whatever, and without any complaint from the petitioner, as she wished court to believe. $f$ { $a$ } 计可 化

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I found this claim to be rather disturbing. The couple lived together as husband and wife for close to or maybe slightly over 7 years. Their life was not said to be one of disharmony. The petitioner agreed to this. There was no talk of failure by either party to meet his or her financial obligations towards housekeeping as mutually agreed. The couple planned retirement in Uganda and eventually left UK in 2003 having lived together happily in UK for 5 years and returned to Uganda. Still they lived together under one roof till later when differences broke out.

The evidence of the petitioner was that were it not for the respondent's extra marital affairs, the marriage would have survived. She told court that it was only when these matters of extra marital affairs surfaced that she realised or discovered that the respondent was not making his contributions towards housekeeping and had never done so since their marriage.

With respect that cannot be entirely true. She kept telling court how the respondent was an impoverished person, who had neither work nor any inclination for one. She could not expect such a person to pay £400 monthly. If he could not do so while they were living in UK, it was less likely that he would afford to pay once they got to Uganda. She therefore must have known and accepted the status quo where the respondent was not making any or full and regular contributions towards housekeeping expenses.

Be that as it may, the claim was for housekeeping expenses. These were expenses which the couple had to meet for their daily livelihood while they stayed together as man and wife. Up till 2005 or thereabout the couple had lived together in bliss. Now all of a sudden it was realised that after all one was living off the sweat of the other and should therefore pay. This was not a debt. If a party failed to make their due contributions the situation had to be resolved immediately and it could not wait till the relationship turned sour. It is not as if this was meant to be a tool of blackmail, keep in line and I wont ask for your contributions, step out and you incur the full wrath of the obligations. Was this

now the punishment for the indiscretion?

The pre nuptial agreement provided in clause 2.1 that it was the intention of the parties to open a joint bank account for the purpose of meeting joint expenses. The amount of monthly payments into this account by either party was not stated in the agreement. It was not stated either that all the housekeeping expenses were to come from the joint account and from nowhere else.

The couple however stated in clause 1.2 and 1.2 of the pre nuptial agreement thus;

- 1.1 The parties reside together at the above address on the terms set out in an agreement made between them dated the $7<sup>th</sup>$ June 1997 a copy of which is annexed hereto. - 1.2 The parties declare that they have adhered to the terms of the said

The copy of the agreement referred to was indeed annexed to the pre nuptial agreement. That agreement, the annexture was the pre marital agreement of the couple, and the couple stated they had adhered to it fully. It stated in clause 4 thus;

'The cohabitant (the respondent herein) will pay the owner (the petitioner herein) a monthly sum of such size as the parties agree from time to time towards the payment of common expenses including mortgage repayments, building and household insurance premiums, charges for water, gas, electricity, telephone, council tax and food.'

This is clear evidence that the respondent made some contributions towards the housekeeping expenses. One wonders why the respondent was able to make those contributions before the marriage, but made none whatever after the marriage to the petitioner.

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From all the above I was not satisfied that this sum was claimable. It is accordingly not allowed. That takes care of the $4$ <sup>th</sup> issue.

The $5<sup>th</sup>$ and last issue was on remedies. From what I found and held above the petitioner proved that the respondent committed acts of adultery while he was legally married to her. I also found and held that the respondent committed acts of cruelty towards the petitioner. Each or any of these would entitle the petitioner to have the marriage dissolved. I also found that the petitioner committed acts of cruelty towards the respondent entitling him to have the marriage dissolved.

There was no collusion or connivance by either party. None condoned the acts of the other. The marriage has irretrievably broken down. There is therefore no bar to the dissolution of the marriage. Accordingly a decree nisi for the dissolution of the marriage between the petitioner and the respondent shall issue.

The petition succeeded as did the cross petition. Each party was guilty of a matrimonial offence. It would not be proper, fair or just to condemn one party in costs. I therefore order that each party shall bear their own costs.

There shall therefore be the following orders.

- 1. A decree nisi shall issue for the dissolution of the marriage between the petitioner and the respondent. - 2. The decree nisi shall be made absolute by this court upon the expiry of six months from date of judgment unless cause be shown to the contrary. - 3. The petitioner shall remain the sole legal and beneficial owner of the properties at No. 8 Ivy Lane, Macclesfield, Cheshire and 10 St. Barnabas Court, Macclesfield, Cheshire in UK, and at Kasusu Nsoro, Fort Portal, plus the pieces of land she bought in Kabarole district upon her return from UK and which are in her names, and the two motor vehicles - the pajero and the pick up. - 4. The Land Rover Discovery shall remain the property of the person in whose names it is registered.

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- 5. The respondent shall repay to the petitioner the money she spent on the respondent's daughter of £3,950. - 6. Each party shall bear their own costs.

**KUGADYA ATWOOKI**

**JUDGE** $25/02/10.$

Court: The D/Registrar shall read this judgment to the parties.

RUGADYA AT $\mathbf{w}$ ob **JUDGE** $I$ CER $I$ THAT THIS IS A FREEP $C_{3,2}$ Y $25/02/10$ . $O_F$ THE GRIGINAL Rbs ORD