Katusabe v Kaboyo (Civil Appeal 7 of 2021) [2023] UGHCFD 19 (31 March 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 007 OF 2021 [Arising from DIVORCE CAUSE No. KMG-06-DIV-01/2021] KATUSHABE MARGARET:::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS**

## **KABOYO PADDY:::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT BEFORE: HON. MR JUSTICE VINCENT EMMY MUGABO.**

#### **JUDGMENT**

#### **Introduction.**

This is an appeal against the judgment and orders of His Worship Kirya Martins, Magistrate Grade one sitting at Kamwenge Chief Magistrate's court in **Divorce Cause No. 01 of 2021**. Judgment is dated 17th August 2021. The appellant petitioned for divorce against the respondent in the magistrate's court and prayed for among others custody of the parties' minor child, a maintenance order, sharing of matrimonial property and costs of the petition.

After trial, the trial magistrate found that the appellant had completely failed to prove any grounds for divorce and he dismissed the petition with costs to the respondent. Hence this appeal.

The appellant appeals against the said decision on the following grounds;

- 1. The learned trial magistrate erred in law and fact when he declined to grant the appellant divorce - 2. The learned trial magistrate erred in law and in fact when he ordered that the appellant is not entitled to share in the properties - 3. The learned trial magistrate erred in law and in fact when he dismissed the appellant's petition

- 4. The learned trial magistrate erred in law and in fact when he awarded the respondent costs - 5. The learned trial magistrate erred in law and in fact when he did not award costs of the counter claim to the appellant.

### **Representation and hearing**

The appellant is represented by Ms. Angella Bahenzire of Bahenzire, Kwikiriza & Co. Advocates and the respondent by Butagira & Co. Advocates. The hearing proceeded by way of written submissions filed by both counsel.

#### Preliminary matters

In his submissions, counsel for the respondent argued that the grounds of appeal are defective as they contravene provisions of **Order 43 rule 1(2) of the Civil Procedure Rules** which states that the memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree appealed from without argument or narrative. Counsel relied on the case of *Isharaza Mathew Vs Beyunga Deusdedit HCCA No. 5 of 2004* where court struck out the grounds of appeal on the ground that they were argumentative. He prayed that the grounds of appeal in the present case be equally struck out.

In response, counsel for the appellant argued that the memorandum of appeal is drawn in accordance with the Civil Procedure rules. She also states that counsel for the respondent has not pointed out the grounds that are argumentative and as such, he has not extinguished his burden to prove his allegations.

Order 43 rule 1(2) of the Civil Procedure Rules deals with the form of the memorandum of appeal. It states as follows;

### *1. Form of appeal.*

Decision of Hon. Justice Vincent Emmy Mugabo Page **2** of **10**

*(1)…*

*(2) The memorandum shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds shall be numbered consecutively.* (Underlining for emphasis)

It is true that in the case of Isharaza Mathew (supra) and in many others like *Moro Okolla Vs John Lalobo 119791 HCB 54,* the memorandum of appeal was struck out for failure to comply with the provisions of Order 43 Rule 1 of the Civil Procedure Rules. In the instant case, I have examined the memorandum of appeal and it contains narrations and so to say, arguments in support of the grounds of appeal.

However, it has been recorded in several decisions including the case of *Rashida Abdul Karim & Another Vs Suleiman Adrisi HCMA No. 009 of 2017* that in a deserving case, the court may rightly exercise its discretion to overlook the failure to comply with the rules of procedure, upon such conditions as it may deem fit to guard against abuse of its process and to avoid a multiplicity of proceedings. The controversy between the appellant and the respondent is one of divorce and determination of property rights at dissolution of marriage. It also seeks to determine the livelihood of a minor at dissolution of marriage. In my opinion, court would rather entertain the appeal on its merits especially when the grounds so poorly framed can still give the respondent and the court reasonable apprehension of the same and without causing prejudice to the respondent. This objection is therefore overruled.

I will now consider the merits of the appeal.

### **Role of the first appellate court.**

### The duty of a first appellate court was laid out in the case of **Fr. Narsensio Bugumisa & 3 others versus Eric Tiberaga SCCA NO. 17 of 2004) KALR236** this;

"*The legal obligation of the 1st appellate court to reappraise the evidence is founded in the common law rather than rules of procedure. It is a well settled principal that on a 1st appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in case of conflicting evidence, the appeal court has to make the allowance for the fact that it has neither seen nor heard the witnesses''*

In case of conflicting evidence the appellate court has to make due allowance for the fact that it has neither seen nor heard the witness, it must weigh the conflicting evidence and draw its own inference and conclusions(See *Lovinsa Nankya Vs Nsibambi(1980) HCB81***).**

### **Consideration of the appeal**

The gist of all the grounds of appeal is that the trial magistrate was wrong to conclude as he did because he could not properly evaluate the evidence. As such, all grounds of appeal will be handled together. I will also discharge the duty of this court by reevaluating the evidence submitted at the trial.

At the trial, the appellant prayed for a dissolution of her customary marriage with the respondent. She contended that this had not been sought in collusion with the respondent. On his part, the respondent in paragraph 8 of his reply to the petition, he responded that he is not against the divorce sought since at all material time it has been the appellant who committed adultery and bore a child outside their marriage. I will evaluate the appellant's evidence to ascertain whether it is sufficient to prove a case for divorce.

There has been attitudes expressed in recent times that divorce should not be based solely on traditional fault grounds such as adultery, cruelty, and desertion. However, **section 8 of The Divorce Act** still enjoins court to pronounce a decree *ni*si for the dissolution of marriage only after being satisfied that the petitioner's case has been proved, and does not find that the petitioner has been accessory to or has connived with the respondent or condoned it, or that the petition is presented or prosecuted in collusion.

In the instant case, although the respondent averred in his reply that at all material time it has been the petitioner who committed adultery, since he did not present a cross-petition on that account, proof of the grounds for divorce will only be considered on basis of what the petitioner alleged. In paragraph 8 of the petition, the appellant contended that the respondent was guilty of adultery committed by way of chasing her out of their matrimonial home and marrying other women. Also that the respondent deserted the appellant for over three years. She also noted that the respondent was guilty of cruelty by harassing her, misusing the family property by selling it and battering her. On that account, she stated that there had been an irretrievable breakdown of their marriage.

The standard of proof required in proof of the various grounds of divorce varies according to the gravity of the accusation. Lord Denning in *Blyth Vs Blyth [1966] AC 643*, stated that, "*so far as the grounds for divorce are concerned, the case, like any civil case, may be proved by a preponderance of probability, but the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear*." For that reason, it was held in *Kakunka Edward Vs Aliet Yudesi Kyoyanga, [1972] HCB 208* that the standard of proof of adultery and cruelty is above the ordinary preponderance of evidence but not as high as beyond reasonable doubt.

As regards the allegation of adultery, direct evidence proving the fact of commission of adultery is quite rare in divorce causes. At best, the evidence is mostly circumstantial. Ntabgoba, PJ, in George *Nyakairu v. Rose Nyakairu [1979] HCB, 261*, commented thus; "in allegations of adultery, it is not necessary to prove the direct fact of adultery for that fact 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."

That as it may be, adultery must be proved to the satisfaction of the Court. It is not enough for the petitioner to allege as the appellant did in paragraph 8 of the petition that the respondent married other women. It would even be harder for the appellant since the marriage between her and the respondent was a customary one which is potentially polygamous. At the trial, no other evidence was adduced to support the allegation of adultery. The trial magistrate found that the appellant's evidence was not sufficient to prove this allegation and I have no reason to depart from the same. The appellant's evidence fell far short of proving adultery to the required standard against the respondent and I so hold.

As rightly stated by the trial magistrate in his judgment, the respondent's response to the petition was not clear. At one point he did not object to the petition on the ground that the appellant was guilty of adultery. At the other point he prayed for a dismissal of the petition. Since he did not present a cross petition, it was proper for the trial magistrate to treat the respondent's response as a denial.

Considering the ground of desertion, **Black's Law Dictionary 9th Edition 2009, at page 211**, defines desertion as:- The wilful and unjustified abandonment of a person's duties or obligations, especially to military service or to a spouse or family. In Family Law the five elements of spousal

desertion are 1) a cessation of cohabitation, 2) the lapse of a statutory period, 3) an intention to abandon, 4) a lack of consent from the abandoned spouse, and 5) a lack of spousal misconduct that might justify the abandonment.

To establish desertion two things must be proved: first certain outward and visible conduct- the *factum* of desertion and secondly the "*animus deserendi*"- the intention underlying this conduct to bring the matrimonial union to an end. In ordinary desertion the *factum* is simple: it is the act of the absconding party in leaving the matrimonial home. As it is put in **Rayden and Jackson on** *Divorce and Family Matters* **17th edition, paragraph 8.33**, "In its essence desertion is the separation of one spouse from the other with an intention on the part of the *deserting* spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse.

In the present case, the appellant stated that the respondent chased her away from home and it was three years by the time she presented the petition in the lower court. The trial court was also brought to the attention of a document in the form of a separation agreement between the appellant and the respondent and witnessed by the LC1 chairperson of Katalyeba cell and where the parties shared some properties, I would imagine the properties that used to belong to both of them. There is no other evidence presented by the appellant of desertion. The appellant agreed to separate with the respondent for reasons known to them and I would be very hesitant to conclude that this was an act of desertion. Who deserted who in such an instance?

Decision of Hon. Justice Vincent Emmy Mugabo Page **7** of **10** Regarding the ground of cruelty, Ms. Bahenzire submitted for the appellant that cruelty occurs where a spouse conducts himself or herself in a manner which causes injury or other reasonable apprehension of injury for

instance battery, or harm on one's life, denial of conjugal rights and so on. She argued that the appellant stated clearly that the respondent mistreated her and ejected her from the matrimonial home and misused family property which in addition breeds economic violence to the appellant.

Again, the petition was the only evidence provided by the appellant at the trial. In paragraph 8 thereof, the appellant stated that the respondent used to beat the appellant, he used to sell family property without the appellant's consent, and also used to harass and threaten the appellant with harm. In the case of *Veronica Habyarimana Vs Habyarimana (1980) HCB 139,* it was held that,

"*There is no definition of cruelty in the Divorce Act but case law has established that no conduct can amount to cruelty unless it has the effect of producing actual or apprehended injury to the petitioners' physical and mental health. There must be danger to life, limb or health, bodily or mental or reasonable for it to constitute cruelty".*

The appellant did not adduce any other evidence apart from making the allegations in the petition. No prior police reports or hospital reports or battery, no witnesses, no evidence of the sale of family property, it is not clear which family property was sold and to whom. As stated earlier, the standard of proving cruelty is slightly higher than the usual balance of probabilities in civil matters. It is my opinion that the appellant also fell short of proving this ground of divorce.

It is my finding that the appellant did not lead enough evidence to prove any of the known grounds for divorce at the trial. This appeal would therefore fail as no new evidence has been adduced on appeal. Previously, courts in different jurisdictions would consider irretrievable breakdown of marriage as a possible ground for divorce where a petitioner found oneself

in a position that they could not prove any of the traditional grounds. However, the case of *Rebecca Nagidde Vs Charles Steven Mwasa CACA No. 160 of 2018* emphasised that irretrievable breakdown of marriage may not be relied on as a ground for divorce in Uganda unless the Divorce Act is amended. Depending on the way the parties explain the way the marriage has irretrievably broken down, it may be classified as cruelty since cruelty may go beyond physical abuse. The parties in this case have also fallen short of proving this.

Before I take leave of this matter, one of the grounds of appeal relates to the failure of the trial magistrate to order for a distribution of property. In the first place the petition did not succeed. As such there was no basis for the trial magistrate to order for a distribution. But what stands out from the appellant's case in the lower court was the lack of evidence. From the petition, the appellant made a list of properties which she claimed were acquired during the subsistence of the marriage. No other evidence was provided to prove existence of the said properties, how they were acquired, by who and when they were acquired. This would leave the court in guess work.

In circumstances like these, the more prudent thing for the appellant to do is to file a fresh petition and support it with evidence.

On the whole, this appeal fails and dismissed with costs to the respondent.

It is so ordered

Dated at Fort Portal this 31st day of March 2023. .

**Vincent Emmy Mugabo**

### **Judge**

The Assistant Registrar will deliver the judgment to the parties

### **Vincent Emmy Mugabo Judge**

31st March 2023.