Kaddu v Kaddu (Miscellaneous Application 86 of 2023) [2023] UGHCFD 194 (5 October 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA (FAMILY DIVISION) MISCELLANEOUS APPLICATION 0086 OF 2023** 5 **(ARISING OUT OF DIVORCE CAUSE NO. 0002 OF 2018) JOHN KADDU BWABYE============================APPLICANT VERSUS**

**TEDDY KYEYUNE KADDU========================RESPONDENT**

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

### **RULING**

This is a Ruling in respect of an Application for Orders that:

- (a) The *ex parte* Judgement in Divorce Cause No. 02 of 2018 be set aside; - (b)The execution of the *ex parte* Judgement in Divorce Cause No. 02 of 2018 be - 15 stayed; - (c) The main suit under Divorce Cause No. 02 of 2018 be reinstated and heard on its merits; - (d)Costs of this Application be in the cause.

### 20 **Representation**

When the Application came up for hearing, the Applicant was represented by Ms. Judith Tumusiime of Katende Ssempebwa & Co. Advocates while the Respondent was represented by Ms. Lydia Tamale Nakamalira of Tamale & Co. Advocates. Both Counsel filed written submissions and the same have been considered in this Ruling.

### **Background of the Application**

I need to observe that I handled Divorce Cause No.0002 of 2018 and the Advocates in this Application were the very same Advocates in the Divorce Petition. While writing the Judgment in the Divorce Petition, I labored to give a detailed background

5 because of the peculiar circumstances of the case which were essentially brought about by Counsel for the Respondent Ms. Judith Tumusiime. I will reproduce the said background in this ruling too and it is as follows:

*"I have found it necessary to give a very detailed background to the Petition/ Cross Petition because of its unique circumstances. The facts are that Mr. John Kaddu Bwabye and Ms. Teddy*

- *Kyeyune Kaddu got married on the 14th* 10 *of December 1996 at All Saints Cathedral Kampala and have two "children" who are now adults. A copy of the Marriage Certificate was produced in Court and admitted as PEX I while the Birth Certificates for the two "children" were admitted and marked as PEX 2(a) and (b) respectively. They have both been staying and working in the United Kingdom. Mr. John Kaddu Bwabye petitioned for Divorce on the grounds of cruelty by* - 15 *Mrs. Teddy Kyeyune. In the Petition, Mr. John Kaddu Bwabye stated that he and his wife owned a residential house in Muyenga comprised in Block 244 Plot 6127 and registered in their joint names and was being rented out. He prayed that the marriage be dissolved and the property be shared out equally.* - 20 *On the other hand, Mrs. Teddy Kyeyune Kaddu filed a Reply and a Cross-Petition in which she also alleged cruelty and adultery by the husband. She further stated that in addition to the Muyenga property, the couple also jointly acquired land at Bukasa, Kyeitabya, Makindye Division, Kyadondo Block 246 Plot 1635 measuring approximately 0.1030 Hectares (suit property). She stated that the land was purchased from her sister Hellen Namirimu Kyeyune at UGX 32,000,000* - 25 *(Uganda Shillings Thirty-Two Million) between 2007 and 2008. The suit property has since been transferred to Johka Print- Machinery Ltd where Mr. John Kaddu Bwabye held 98% shares while his brother Isaac Sebaduka held 2% shares. Mr. John Kaddu Bwabye later transferred 93% shares to one William Kabuye. In his pleadings, Mr. John Kaddu Bwabye contended that the suit land was bought by Johka Print Machinery Ltd and not by the couple and is therefore not matrimonial*

30 *property.*

*On 9th August 2018 the parties entered into a partial Consent Settlement and a Decree Nisi was entered. In paragraph 10 of the partial Consent Settlement, the parties agreed that the suit property comprised in Block 246 Plot 1635 land at Kyeitabya shall be resolved in Court.*

*On 16th May 2019, Mrs Teddy Kyeyune Kaddu filed Miscellaneous Application No. 265 of 2019* 5 *to amend the Cross Petition. Mr. John Kaddu Bwabye did not file any Affidavit in reply despite having been given an opportunity to do so. The Affidavit of Service on the file deponed by Owange Levy of Tamale & Co. Advocates indicates that when he went to serve Barenzi & Co. Advocates (lawyers for Mr. John Kaddu Bwabye), he was informed that they no longer had instructions to represent him. However, they received the Application and promised to notify him accordingly.*

10 *The record indicates that the Application came up for hearing before the then Learned Trial Judge Hon. Justice Godfrey Namundi on 4th July 2019 and Mr. John Kaddu Bwabye was absent but was represented by Ms. Kisaka Mable who informed court that she had not filed an Affidavit in reply because the Affidavits were sent to their client for signature but the same had not been signed.*

*The matter was adjourned to 10th October 2019 for hearing and on that date, still Mr. John Kaddu*

15 *Bwabye was absent but Ms. Nyachio Mary appeared for him and she informed court that she had just received instructions that morning and had not been able to file an Affidavit in reply. Still, no Affidavit in reply had been filed as at that time.*

*The then Learned Trial Judge noted that there was even no Notice of change of instructions filed by Ms. Mary Nyachio. He proceeded to hear the Application as unopposed and allowed the prayer*

20 *for amending the Cross Petition. He further ordered Mrs. Teddy Kyeyune Kaddu to file the amended Cross Petition and serve Mr. John Kaddu Bwabye who was ordered to file his response within the prescribed time limits.*

*On 11th October 2019, Mrs. Teddy Kyeyune Kaddu filed the amended Cross Petition and served it on Barenzi and Co. Advocates on the same day. According to the Affidavit of Service on record*

25 *deponed by Owange Levy, when he went to serve Mr. Barenzi, he still indicated that he no longer had instructions to represent Mr. John Kaddu Bwabye and when he checked with the court clerk to find out whether Ms. Mary Nyachio had filed a Notice of change of instructions, there was none.*

*Mr. John Kaddu Bwabye did not file a reply to the amended Cross Petition and on 19th November 2019 Tamale & Co. Advocates filed an Application for a default judgment under S.30 of the*

| | $\mathscr{I}^{-1}$<br>$\cdot \Lambda$ | |--|---------------------------------------| |--|---------------------------------------|

*Divorce Act and Order 8 Rule 11 (1) and (3) of the Civil Procedure Rules which was however not entered.*

*On 30th November 2021 when the matter first came up before me, Mr. John Kaddu Bwabye was absent but Ms. Mary Nyachio Maganda holding brief for Mr. Mutalya Ronnie appeared for him.*

- 5 *Ms. Nyachio then informed Court that Mr. John Kaddu Bwabye was out of the country and Mr. Mutalya had also received instructions that morning (as earlier noted, while handling Miscellaneous Application No. 0265 of 2019, Ms. Nyachio Mary who had appeared for Mr. John Kaddu Bwabye on 10th October 2019 informed Court that they had received instructions that morning). The matter was adjourned to 17th February 2022 for hearing and Mr. John Kaddu* - 10 *Bwabye was instructed to file his documents.*

*On 10th March 2022, the matter came up again and Ms. Judith Tumusiime of Katende, Ssempebwa & Co. Advocates appeared for Mr. John Kaddu Bwabye. She also filed the Notice of change of instructions on the same date. She informed the Court that she had received instructions on 17th February 2022 and she was unable to file a reply to the Cross Petition because her client lives out*

- 15 *of the country. She contended that failure to file the reply was a mistake of Counsel which should not be visited on the client. She prayed for enlargement of time within which to file a reply. This was amidst vehement contestation from Ms. Lydia Nakamalira Tamale who argued that Mr. John Kaddu Bwabye had failed to file a reply for three years and he kept on changing lawyers who did not file Notice of Change of Instructions and in this he intended to delay the trial.* - *I also noted that if indeed Katende, Ssempebwa received instructions on the 17th* 20 *February 2022 as claimed by Ms. Judith Tumusiime, as at 10th March 2022, a reply should have been filed. However, considering that she had informed court that Mr. John Kaddu Bwabye resided out of the country, in the interest of justice, I allowed to enlarge time within which to file a reply up to the 28th March 2022.* - *On 17* 25 *th March 2022, Katende, Ssempebwa & Co. Advocates filed a reply to the Cross Petition. On 28th March 2022 when the matter came up for hearing, neither Mr. John Kaddu Bwabye nor his lawyer Ms. Judith Tumusiime, were present. Ms. Judith Tumusiime had filed a letter in this Court to the effect that she was appearing in another matter in the Court of Appeal. Ms. Lydia Nakamalira Tamale for Mrs. Teddy Kyeyune Kaddu contended that Ms. Judith Tumusiime's* - 30 *absence was unjustified because the date was agreed upon with her consent and given the size of*

*the Law Firm, there should have been someone to appear in the Court in this matter. She further attacked the propriety of the reply to the Cross Petition. She argued that the reply was not verified by Mr. John Kaddu Bwabye and he also did not swear an Affidavit in Reply to the Affidavit of Mrs. Teddy Kyeyune Kaddu which supported the Cross Petition. She concluded that the reply was not*

5 *proper in law and invited court to strike it off the record.*

*Upon perusal of the reply filed on behalf of Mr. John Kaddu Bwabye, I also confirmed that indeed whereas the reply purported to respond to the Cross Petition and the Affidavit in Support, it was drawn and signed by Counsel and Mr. John Kaddu Bwabye did not sign anywhere. Counsel purported to give facts which are expected to be within the possession /knowledge of the client and*

- 10 *went ahead to sign as if it was Mr. John Kaddu Bwabye. I therefore agreed with Ms. Lydia Nakamalira Tamale that the reply was not proper and I accordingly struck it off. I also noted that Counsel for Mr. John Kaddu Bwabye had been given time to get in touch with the client so as to file a reply and her failure to do that but instead purported to sign on his behalf was an abuse of the leniency of the Court. Since there was no reply, I then entered a Default Judgment and the* - 15 *matter was set for formal proof hearing.*

*Ms. Nakamalira who had earlier on informed Court in writing that she intended to proceed by way of Affidavits and did not intend to call the witnesses, reiterated her prayers and sought to file written submissions. I ordered for the physical appearance of Mrs. Teddy Kyeyune Kaddu and Ms. Hellen Namirimu to be cross examined by Court. The witnesses who ordinarily reside out of the*

20 *country physically appeared in Court and were accordingly examined by the Court.*

*The matter was fixed for Judgment but before Judgment could be delivered, Katende, Ssempebwa & Co. Advocates filed Miscellaneous Application No. 0426 of 2022 for leave to Appeal against the Order for the Default judgment. When the Application came up for hearing, Ms. Lydia Nakamalira Tamale raised an objection to the effect that the Application indicated Teddy Kyeyune*

- 25 *Kaddu as the Applicant and John Kaddu Bwabye as the Respondent. She argued that her client Mrs. Teddy Kyeyune Kaddu has never instructed Ms. Katende, Ssempebwa & Co. Advocates to file that Application. She contended that the Application was incurably defective and invited court to strike it off. Ms. Judith Tumusiime who appeared for Mr. John Kaddu submitted that it was a mistake of Counsel (herself) which should not be visited onto the client. I agreed with Ms. Lydia* - 30 *Nakamalira Tamale that the Application was incurably defective and I struck it off the record."*


When this Application came up for hearing, Ms. Judith Tumusiime made an Application for my recusal on allegations of bias. However, in a detailed Ruling, I declined to recuse myself because I am not biased at all.

### 5 **The Application**

This Application is supported by the Affidavit of the Applicant, Mr. John Kaddu Bwabye while the same is opposed by the Affidavit in Reply of the Respondent, Ms. Teddy Kyeyune Kaddu. The gist of the Affidavit in Support of the Application is that the Applicant who was present in Court was denied a right to be heard when the 10 Trial Judge made an Order to proceed *ex parte* for reasons that the Reply to the Amended Cross Petition was not verified.

On the other hand, the Respondent avers that the Applicant was not present in Court and the purported Reply to the Amended Cross Petition had no verification by the 15 Applicant and that it was fatally defective. She also avers that Court exercised a lot of lenience in a bid to give the Applicant an opportunity to be heard but the same was abused.

### **Preliminary point of Law**

20 Counsel for the Respondent raised a point of law on how the Affidavit in Support of the Application was drafted. She submitted that a review of paragraphs 3, 5, 6, 7, 8, 10, 11 and 13 of the Affidavit in Support of the Application as well as paragraph 2(iv) and (v) of the Affidavit in Rejoinder clearly reveals that the Applicant is not the author of the Affidavit. She argued that it cannot be said to be the Applicant's 25 evidence but rather that of his lawyers. She submitted that it offends Order 19 Rule 3 of the Civil Procedure Rules (CPR) which requires that an Affidavit shall be based on such facts as the deponent is able of his own knowledge to prove. She insisted it was apparent that it is not the Applicant's evidence.

Counsel for the Applicant did not make submissions on this issue. However, the Applicant in his Affidavit in Rejoinder in para 2(ii) thereof deponed thus:

5 *"That paragraphs 3, 5, 6, 7, 8, 10, 11 and 13 are deponed by me in my capacity. I am the Applicant, they are my evidence and there is no need to disclose any source of information."*

## **Consideration by the Court**

Order 19 Rule 3 (1) of the Civil Procedure Rules provides that:

10 *"Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated."*

I have perused the Affidavit in Support of the Application by Mr. John Kaddu 15 Bwabye and I agree with Counsel for the Respondent that it offends the above Rule. Much as the deponent introduces himself as the Applicant, the subsequent paragraphs are couched as if it is another person deponing and not the Applicant. Instead of stating "I" it states "The Applicant". It gives a reader an impression that it is a third party deponing and not the deponent (Applicant). It is also indicated in 20 the last paragraph thereof that whatever is stated in the Affidavit is true to the best of his knowledge and belief. (Emphasis is mine)

I will point out paragraphs 4 and 5 of the Affidavit in support which read thus:

*"4. That the Learned Judge ordered that the suit should proceed ex parte and the suit proceeded ex parte because the reply to the Amended Cross Petition did not have a verification.*

25 *5. That despite constant pleas, the Applicant was denied a right to be heard"*


From the reading of the above, the reader gets the impression that the facts are within the knowledge of the deponent and he can easily prove them. It gives an impression that the deponent was present in the Court and the Learned Judge made Orders for *ex parte* proceedings irrespective of the pleas from the deponent. However, as rightly

5 submitted by Counsel for the Respondent and as correctly and accurately indicated in the background to this Application, the Applicant was always absent during the Court hearings and even when a Default Judgement was passed, he was not Court. It is therefore evident, that what is stated in the Affidavit is not within the knowledge of the Applicant/ deponent. If this information was given to him by his lawyer, then

10 he should have indicated so which he unfortunately did not.

When the Respondent raised it in her Affidavit in Reply, the Applicant simply responded thus:

*"That paragraphs 3, 5, 6, 7, 8, 10, 11 and 13 are deponed by me in my capacity. I am the Applicant,* 15 *they are my evidence and there is no need to disclose any source of information"*.

Clearly, this aggravates the situation because in light of the overwhelming evidence that the Applicant was not in the Court, it is unfortunate that he insists that it is his evidence and there is no need to disclose the source of information.

20 In light of the above, I find that the Affidavit in Support is gravely defective. Ordinarily, I would have struck it out and summarily dismissed this Application. However, in the spirit of disposing of this matter conclusively, I will accommodate the Affidavit with its grave defects and proceed to handle the Application.

## 25 **Issues**

*1. Whether the Judgment and/or Decree and Orders of Court in Divorce Cause No. 02 of 2018 should be set aside;*

- *2. Whether Divorce Cause No. 02 of 2018 should be reinstated and heard on its own merits; and* - *3. What remedies are available to the parties?*

5 **Resolution of the Issues**

Issues 1 and 2 will be handled jointly.

# *Whether the Judgment and/or Decree and Orders of the Court in Divorce Cause No. 02 of 2018 should be set aside***,** *reinstated, and heard on its own merits.*

Counsel for the Applicant while relying on Order 9 Rule 27 of the Civil Procedure 10 Rules and Section 98 of the Civil Procedure Act (CPA) invited the Court to set aside the Judgment and Decree in Divorce Cause No. 02 of 2018. She argued that the right to be heard is sacrosanct and constitutionally guaranteed in Articles 28 and 44 of the Constitution of the Republic of Uganda. While relying on the case of *National Enterprises Corporation versus Mukisa Foods Ltd Civil Appeal No. 42 of 1997*, 15 she submitted that denying a party the opportunity to be heard should be the last

resort of the Court.

Counsel for the Applicant insisted that there are justifiable reasons for setting aside the Judgement and re-instating Divorce Cause No. 2 of 2018 because the Applicant was present throughout the hearing and is very interested in proceeding with the case

20 because he has a good defence.

On the other hand, Counsel for the Respondent contended that the Applicant has not given any justifiable reasons for setting aside the Judgment. While giving a detailed background of the matter and what transpired during the Court proceedings, she argued that the Applicant was never present in Court and the Court exercised a lot

25 of lenience to accord him a right to be heard but he abused it instead. She insisted

that Divorce Cause No. 2 was heard on its merits and there is no need for its reinstatement.

## **Consideration by the Court**

- 5 I need to note that though the Application is brought under Order 9 Rule 27 of the Civil Procedure Rules for setting aside an *ex parte* Judgment, this was a Default Judgment and not an *ex parte* Judgment. Upon striking out the Reply to the Amended Cross Petition of the Applicant, Court went ahead to pass a Default Judgment and set down the matter for formal proof hearing and the matter was heard on its merits. - 10 As observed in the background to this Application, Counsel for the Applicant filed an Application to set aside the Default Judgement but it was struck out for being defective.

Order 9 Rule 7 of the CPR presupposes that the Defendant filed a defence but was 15 absent for the hearing and the matter proceeded in his absence which is different from this case. In this case, there is no reply to the Amended Cross Petition after it was struck out for its defects.

The above notwithstanding, even if the Applicant was permitted to proceed under

- 20 Order 9 Rule 27, he would be expected to satisfy the Court that summons were not duly served to him or he was prevented from appearing in Court by sufficient cause. As already observed in the background, whenever this matter came up in the Court, there was evidence by way of an Affidavit of Service that the Applicant had been served. I have also failed to understand the argument of Counsel for the Applicant. - 25 If she is proceeding under Order 9 Rule 27 CPR, then she is admitting that the Applicant did not appear in the Court. However, in her submissions, she insists that the Applicant was at all material times appearing in the Court. Is she saying that the

Court passed an *ex parte* Judgment against the Applicant in his presence? This is indeed unfortunate and very absurd.

In light of the above, I find that the Applicant has not given any justifiable reasons

5 to the satisfaction of the Court for setting aside the Judgment and Orders in Divorce Cause No.2 of 2018. Consequently, issues 1 and 2 are answered in the negative.

# **Conclusion**

Resultantly, this Application wholly fails and is accordingly dismissed with Costs.

10 I so order.

**Dated at Kampala this 5th day of October 2023.**

15 ............................................ Alice Komuhangi Khaukha **JUDGE** 05/10/2023