Lukandwa v Sentamu (Civil Appeal 11 of 2020) [2024] UGHC 245 (30 April 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA CIVIL APPEAL NO. 11 OF 2020 (Arising from Divorce Cause No.0002 of 2019)

#### LUKANDWA KASIBANTE GEORGE WILLIAM

Executor of the estate of the late Daudi Sentamu :::::::::::::::::::::::::::::::::::: **VERSUS**

GRACE BABISA SENTAMU ::::::::::::::::::::::::::::::::::::

#### **Before: HON JUSTICE LAWRENCE TWEYANZE.**

### JUDGMENT.

#### **Introduction/Background:**

- 1. This is an appeal against the Judgment and orders of His Worship Ziraba Arthur, Magistrate Grade one sitting at the Chief Magistrates Court of Masaka at Masaka in Divorce Cause No.2 of 2019. In the Court below, the Respondent, Grace Babisa Sentamu petitioned Court against Daudi Ssentamu for nullification and dissolution of their marriage, that the Petitioner be granted permanent alimony, that the matrimonial home comprised in Plot 9A and 9B Bainnes Terrace be given to the Petitioner, share equally all the properties acquired such as land at Nakyenyi and share in the schools both land and dividends and general damages. That they solemnized their marriage at St. John Church of Uganda at Masaka on 30th September 1978, that their marriage was blessed with one issue Kasibante Dennis Don and that the Respondent had another son Kyagulanyi Bob with Nakuya Resty (now deceased). - 2. In this appeal, the late Daudi Sentamu was dissatisfied with the decision of the trial Magistrate and hence lodged this appeal prior to his death. This Court on the 20th day of March 2023 ordered the now Appellant, who is the Executor of the Will of the late Daudi Sentamu to be substituted in the name of the original Appellant the late Daudi Sentamu. - 3. The background as discerned from the record of the lower Court is that the Petitioner (now Respondent) was a young nurse living and working in Bundibugyo. It was from there that the young Daudi Sentamu Respondent in the Petition (now deceased) lay his eyes on her and fell in love and made the life-long decision to marry her and so did wed her. The two young lovers had little or no substantial wealth and after cohabiting together in the Petitioner's Government Nursing room in Bundibugyo,

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they moved to Masaka where the Respondent got gainfully employment in the Government of Uganda as the Works Supervisor in-charge of Roads District Administrator of Masaka District, slowly the successes and fortunes of life and wealth knocked upon them and they managed to acquire property and establish themselves in various places in and around the greater Masaka region and other regions in Uganda.

- 4. Unfortunately, as alleged by the Petitioner amidst all this success, their marriage was being strained allegedly by the Respondent's brazen or immoral conduct and marital offences which culminated in the Petitioner purportedly being forced out of their supposed matrimonial home in Kizungu-Masaka. The Petitioner and Respondent who were senior citizens of the country well over in their 60s sought the lower Court to break their union that had lasted over forty-two years on alleged grounds of marital offences as perpetrated by the Respondent. - 5. The case for the Petitioner was that the Respondent had since shortly after solemnizing their marriage been engaged in marital offences to wit numerous adulterous relationships and in particular respect with a one Nakuya Resty (now deceased) with whom he had one issue called Kyagulanyi Bob. The Petitioner averred that the Respondent had on several occasions threatened to do physical harm on her and that sometime in March 2019 he physically insulted and threatened her life whereby she lived in perpetual apprehension of grievous bodily harm or murder. That the Respondent chased the Petitioner from their matrimonial home as well as out of the family land business where she had no means of surviving hence petitioning Court. - 6. In response to the Petition the Respondent admitted to have had an affair with his late girlfriend Nakuya Resty with whom they had a single issue in 1982. He however denied having threatened to physically harm the Petitioner ever or in the month of March 2019, or chased her away from their matrimonial home which he contended that she left by herself in August 2018 to Bundibugyo to see her Aunt and never returned. He contended that he was never engaged in any brazen and immoral conduct or committed any matrimonial offences, where he invited the Court to strike out the Petition as being frivolous and vexatious intended to annoy him. - 7. The marriage between the Petitioner (now Respondent) and the late David Sentamu subsisted until 15th July 2020 when the same was dissolved by the trial Court with several orders relating to equal sharing of properties which the late Daudi never agreed to and hence this appeal.

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### **Representation and hearing.**

1. The Appellant was jointly represented by $M/s$ Waymo Advocates and $M/s$ D. Kagarura Advocates & Solicitors. The Respondent was represented by $M/s$ Kagsa Advocates. The Appeal proceeded by way of written submissions, the parties were directed to file written submissions, and Counsel for the Appellant filed written submissions which is on Court record. For the Respondent, there is no any submissions filed on Court record. In case the Respondent filed submissions, the same is not on Court record, if indeed they filed the same, it has not been brought to my attention. So I have made this judgment without the Respondent's submissions. I have read and appreciated all the record of the lower Court and pleadings therein, and the submissions of the of the Appellant. I will refer to the submissions as and when I find it necessary.

### **The Grounds of Appeal.**

- 8. The Appellant raised Seven (7) grounds of appeal in the Amended Memorandum of Appeal namely that; - 1. The Learned trial Magistrate erred in law in proceeding to entertain the Divorce Cause involving property which was well beyond his pecuniary jurisdiction. - 2. The Learned trial Magistrate erred in law when held that he found no evidence of condonation, collusion or connivance by the Petitioner in the admitted adultery with the late Nakuya Resty. - 3. The Learned trial Magistrate erred in law in allowing the Petitioner's petition for divorce when she is the one who deserted the marriage. - 4. The Learned trial Magistrate erred in law in holding that the property situated at Plot 9A and 9B Baines Terrace, Kizungu Masaka Municipality constitutes matrimonial home for *which the Petitioner is accorded an equal share in the same together with the Respondent.* - 5. The Learned trial Magistrate erred in law in holding that Kikalala Bright Secondary School in Kyamulibwa Masaka, Nakyenyi Vocational School in Nakyenyi and Buddu Social Development Association (BUSODA) being registered entities with a legal personality are *matrimonial property.* - 6. *The Learned trial Magistrate erred in law in holding that the 35Acres of land at Nakyenyi were not ancestral land and are part of the matrimonial property.* - 7. The Learned trial Magistrate erred in law when he failed to properly evaluate the evidence on record and consequently came to a wrong conclusion that occasioned a miscarriage of justice. - 9. The Appellant prayed that the appeal be allowed, orders of the trial Court set aside and costs of the appeal be provided for.

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### **Duty of the First Appellate Court.**

10. The duty of a first Appellate Court is to scrutinize and re-evaluate the evidence on record and come to its own conclusion and to a fair decision upon the evidence that was adduced in a lower Court. **See:** *Section 80 of the Civil Procedure Act Cap 71*. This position has also been re-stated in a number of decided cases including J. F. Zaabwe v *Orient Bank Ltd CACA No. 4 of 2006; Kifamunte Henry v Uganda SC CR. Appeal No. 10 of* 1997; and Baguma Fred v Uganda SC Crim. App. No. 7 of 2004. In the latter case, Oder, **JSC** stated thus:

"First, it is trite law that the duty of a first appellate Court is to reconsider all material evidence that was before the trial Court, and while making allowance for the fact that it has neither seen nor heard the witnesses, to come to its own conclusion on that evidence. Secondly, in so doing it must consider the evidence on any issue in its totality and not any piece in isolation. It is only through such re-evaluation that it can reach its own conclusion, as distinct from merely *endorsing the conclusion of the trial Court".*

#### **Consideration of the Grounds of Appeal**

11. Counsel for the Appellant started his arguments with a prayer that since the original Appellant died, grounds 2 and 3 are abandoned. Counsel also sought to abandon ground 5. Counsel addressed only grounds 1, 4, 6 and 7. It was proposed to argue the remaining grounds in that order. Counsel submitted that Ground 7 relates to evaluation of evidence which cuts across, and so they sought to evaluate the evidence in grounds 1, 4 and 6. I will therefore resolve the grounds in that order.

#### Ground 1.

## The Learned trial Magistrate erred in law in proceeding to entertain the Divorce Cause *involving property which was well beyond his pecuniary jurisdiction.*

- 12. The Appellant's Counsel submitted that pecuniary jurisdiction of a Magistrate Grade One is $UGX20,000,000$ = according to Section 207 (1) (b) of the Magistrates Court Act. Counsel submitted that Paragraph 12 of the Divorce Petition mentions properties that were allegedly acquired by the Respondent and the late Daudi Sentamu as; - $i)$ 35 acres of land at Nakyenyi and a residential house at Kizungu Masaka, which the Respondent under prayer iv) sought to be given to her and sought an equal share of the 35 acres of land at Nakyenyi under prayer (v). - $ii)$ An already constructed secondary school.

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- 13. That page 9 of the Judgment of the trial Court summarizes all the properties including the above properties that were brought to the attention of Court during the hearing, to wit; - $i)$ 35 acres of land at Nakyenyi developed with a banana plantation, Nakyenyi school and a residential house the parties refer to as their village home. - ii) 3 acres of land in Nakyenyi comprised in Block 492 Plot 62 which established the village home - iii) 3 acres of land purchased jointly by the Petitioner (the Respondent herein) and the late Daudi Sentamu comprised in Block 492 Plot 81 - $iv)$ Land comprised in Freehold Register Vol. 660 Fol. 9A and 9B Baines Terrace, Masaka. - $v)$ Three in one commercial rental houses in Najjera Kampala suburb - $v_i$ Kumbu House purchased at $50m/$ = - vii) 7 acres of land at Nakyenyi - viii) Kikalala Bright Senior Secondary School in Kyamulibwa Masaka - $ix)$ An NGO BUSODA. - 14. That at pages 11, 12, 13, 14 and 15, of the Judgment, the trial Magistrate Court found all these properties to be matrimonial properties and accordingly at pages 16 and 17 of the Judgment, the trial Magistrate went ahead and distributed the same. - 15. Counsel submitted that Divorce Petition No.2 of 2019 was filed on 4 April 2019. That it is inconceivable that in 2019 when the Divorce Petition was filed and tried, these properties were all valued at UGX20,000,000= within the pecuniary jurisdiction of the Grade One Magistrate who tried the case. That the Kumbu House was specifically purchased at UGX50m. - 16. That the decision of the trial Magistrate relating to the properties listed in the judgment of Court, which included those in the Divorce Petition were over and above the pecuniary jurisdiction of the Grade One Magistrate who tried the case. Counsel submitted that a decision of Court made without jurisdiction is illegal and a nullity and cannot be left to stand. Counsel refereed to the case of **Mubiru and Ors Vs. Kayiwa** (1979) HCB 212, that the Court of Appeal of Uganda held that "an Order made without jurisdiction is a nullity". Counsel prayed that ground one is upheld and the decision relating to distribution of property set aside.

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#### Analysis.

- 17. Oder J. S. C. (as he then was) defined jurisdiction as: "the authority which a Court has to decide matters that are litigated before it." The Learned Justice explained that "the limits of that authority are imposed by statute." See Paul K. Ssemogerere versus Attorney General Constitutional Appeal No. 1 of 2002. - 18. Jurisdiction is the first test in the legal authority of a Court and its absence disqualifies the Court from exercising any of its powers. Jurisdiction means and includes any authority conferred by the law upon the Court to decide or adjudicate any dispute between the parties or pass judgment or order. A Court cannot entertain a cause which it has no jurisdiction to adjudicate upon. Jurisdiction must exist at the time of filing the suit or latest at the commencement of hearing. See Koboko District Local *Government-vs- Okujjo Swali, Miscellaneous Civil Application No. 0001 Of 2016.* - 19. The law is that issues of jurisdiction are substantive and go to the core of a case. If a Court lacks jurisdiction, whether pecuniary or territorial, over the subject matter in dispute, its judgment and orders, however precisely certain and technically correct, are mere nullities and not simply voidable. Such judgment and orders are of no legal consequence and may not only be set aside any time by the Court in which they were rendered but may be declared void in every Court in which they are presented. (See: Gabula vs Wakidaka, HCCA No. 29 of 2006 and Assanand & Sons (U) Ltd vs. East African Records Ltd (1959) E. A 360.) - 20. In matters of Divorce, jurisdiction is provided for under **Section 3(1)** of the Divorce **Act** which states that where all the parties to a proceeding under this Act are Africans or where a petition for damages only is lodged in accordance with Section 21, jurisdiction may be exercised by a Court over which presides a Magistrate Grade 1 or a Chief Magistrate. Section 3(2) of the same Act provides that in all other cases jurisdiction shall be exercised by the High Court only. In the case of *Fredrick Kato Versus Ann Njoki Divorce Cause No. 0010 / 2007 Justice FMS Egonda-Ntende (as he* then was) discussed the jurisdiction in divorce matters and stated among others that:

"In the interim, pending reform of the Divorce Act, and perhaps for the guidance of the public, where in a divorce cause, the matrimonial assets in contention exceed the upper limit of the pecuniary civil jurisdiction of a Magistrate's Court that may amount to an exceptional circumstance to allow the filing of such a matter directly in the High Court. The current upper limit is Shs. 50,000,000.00. Where the matrimonial assets exceed this *amount such a matter may be filed in the High Court."*

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21. Similarly, in *David Michael O' Connell versus Nakawooza Catherine Revision Cause* No. 002 of 2021 my learned brother Ojok J cited with approval the decision in Nakawooza Catherine versus David Michael O' Connell Misc. Cause No. 001 of 2020, where Odoki J held that: -

"It is settled law that a Chief Magistrate has jurisdiction to entertain a petition for dissolution of a customary marriage. This was the decision of Tuhaise J. as she then was, in the case of Dr. Josephine Nakakande, supra. However, regard has to be taken where the petition for divorce includes orders for distribution or determination of rights to property whose value exceeds the monetary jurisdiction of the magistrate, in such a case, the magistrates court will have no *jurisdiction to determine the matter."* (Emphasis mine).

22. Even though the above position was arising from the Chief Magistrate, the principles therein are relevant in this case where the Magistrate Grade One determined the Divorce Petition. To fully address contentions on jurisdiction of Court in matrimonial cases, which are purely civil in nature, it is important to consider other relevant statutes that govern civil matters. Section 4 of the Civil Procedure Act provides that:

"Except in so far as is otherwise expressly provided, nothing in this Act shall operate to give any Court jurisdiction over suits the amount or value of the subject matter of which *exceeds the pecuniary limits, any, of its ordinary jurisdiction.*"

- 23. The general pecuniary jurisdiction of a Magistrate Grade One Court is limited to matters that do not exceed UGX 20,000,000/= as per Section 207(1) (b) of The *Magistrates Courts Act* (as amended by Act No.7 of 2007). - 24. Section 207 (3) of the Magistrates Court Act, which is similar to Section 11 (2) of the Civil Procedure Act provides that, whenever for the purposes of jurisdiction it is necessary to estimate the value of the subject matter of a suit capable of a money valuation, the Plaintiff shall, in the Plaint, subject to any rules of Court, fix the amount at which he or she values the subject matter of the suit. However, where the Court thinks the relief sought is wrongly valued, the Court must fix the value and return the Plaint to the Plaintiff for amendment. - 25. In Uganda, the Civil Procedure Rules SI-71-1 regulates the procedure of the High Court, the Chief Magistrate and a Magistrate Grade 1 Court as per section 219 Magistrate 's Court Act, Therefore, every Plaint or Petition lodged in those Courts must plead facts showing that the Court has jurisdiction, as required under Order 7 rule 1(1) of the Civil Procedure Rules. There must be facts that must show that a Court is seized with the requisite jurisdiction.

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- 26. I have carefully studied the record of the lower Court thus, the Petition, the replies and the annextures attached. I have also keenly perused the judgment of the lower Court, which show that indeed, the properties mentioned therein include registered land thus, Certificate of Title for Buddu Block 492 Plot 81-land at Nakyenyi, Certificate of Title for Buddu Block 492 Plot 62-land at Nakyenyi, and Certificate of Title for land comprised in Freehold Register Volume 660 Folio 4 Plot 9B, Baines Terrace, Masaka. In the judgment at pages 16 to 17, the trial Magistrate made prouncements on them and ordered for them to be shared. - 27. It is also noted that at page 9 of the Judgment, the trial Court listed properties that were brought to its attention during the hearing of the Petition, to wit; 35 acres of land at Nakyenyi developed with a banana plantation, Nakyenyi school and a residential house the parties refer to as their village home; 3 acres of land in Nakyenyi comprised in Block 492 Plot 62 which established the village home; 3 acres of land purchased jointly by the Petitioner (the Respondent herein) and the late Daudi Sentamu comprised in Block 492 Plot 81; Land comprised in Freehold Register Vol. 660 Fol. 9A and 9B Baines Terrace, Masaka; Three – in - one commercial rental houses in Najjera Kampala Suburb; Kumbu House purchased at $50m$ = which was said to have been sold secretly by the Respondent; 7 acres of land at Nakyenyi; Kikalala Bright Senior Secondary School in Kyamulibwa Masaka; An NGO BUSODA. - 28. It is clear to me that the Petition and the entire proceedings were only dissolution of the marriage. The total value of the properties in issue were not mentioned in the Petition but there were express prayers for sharing of property in the Petition itself, titled land which is at the Centre of Masaka City, that is Baines Terrace, sharing schools and dividends therein and other properties as earlier on mentioned. Therefore, the moment the matter involved property and allegations of property especially where it was clearly stated that Kumbu House was purchased at UGX $50m$ which was said to have been sold secretly by the Respondent. It was incumbent on the trial Magistrate to inquire into the estimated value of all the property involved to properly determine whether or not he was clothed with the pecuniary jurisdiction to determine the Petition in accordance with Section 207 of the Magistrates Court Act. - 29. Be that as it may, it is quite obvious and I take judicial notice of the fact that titled land at the Centre of Masaka City cannot be valued below UGX $20,000,000/=$ , which is the pecuniary limit for a Magistrate Grade One. Even if it were the Chief Magistrate's Court, still it would be out of reach of that Court as the value of the said properties was way above $50m$ – the pecuniary jurisdiction of a Chief Magistrate. See Misc. Cause No.001/2020 Nakawooza Catherine vs David Michael O'Connell and Revision Cause No.02/2021 David Michael O'Connell vs Nakawooza Catherine referred to above. The said Petition should have been filed in the High Court which has unlimited original jurisdiction in all matters. There is no justification as to why the trial Magistrate did not give attention to those circumstances, which would have reasonably informed him that the properties involved exceed the jurisdiction of the

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Magistrate Grade One. It was therefore an error at law for the Magistrate Grade One to determine a Petition where he had no jurisdiction. Had the Magistrate Grade One estimated the value of the mentioned properties while in the proceedings or even in the Petition, he would have found that he had no jurisdiction to try the Petition, and resultantly he would have struck out the Petition and the Petitioner would have filed in a Court with competent jurisdiction if she so wanted.

30. Also, considering the two statutes, in Uganda, the Divorce Act commenced on the $1^{st}$ day of October 1904; the Civil Procedure Act commenced on the 1st day of January 1929; and the Magistrates Court Act commenced on the 22nd day of January 1971, and there have been several amendments on the same. Clearly, when those later laws were enacted, the enactors were mindful of the existence of the Divorce Act, and thus enacted both the Civil Procedure Act and the Magistrates Court Act, and the several amendments, clearly setting out provisions on the matters of jurisdiction. I am guided by the decision by the then Court of Appeal of Uganda in *David Sajjaaka Nalima vs* Rebecca Musoke (Civil Appeal No. 12 of 1985) [1986] UGSC 12, where Court respectfully agreed with the principles of construction as stated by the Learned trial judge of the High Court that;

"According to the principles of Construction, if the provisions of a later Act are so inconsistent with or repugnant to those of an earlier Act that the two cannot stand together, the earlier Act stands impliedly repealed by the latter Act, See Maxwell on Interpretation of Statutes, 10th Ed. at page 161 and a leading case of Kariapper vs Wijesinha (1968) A. C 716. In Goodwin v Phillips (1908) 7 C. L. R reproduced in Statutory Interpretation in Australia by D. C. Pearce Second Edition, at P. 162) Griffith $C. J.$ (as he then was) said: -

"..................................... particular subject matter are wholly inconsistent with the provisions of an earlier Act dealing with the same subject matter, then the earlier Act is repealed by implication. It is immaterial whether both Acts are Penal Acts or both refer to civil rights. The former must be taken to be repealed by implication. Another branch of the proposition (which is relevant to this case) is this, that if the provisions are not wholly inconsistent but may become inconsistent in their application to particular cases, then to that extent the provisions of the former Act are excepted or their operation is excluded with respect to cases falling within the provisions of the later Act."

31. In view of the above position, that all statutes that touch on the same subject should be read together and they should be interpreted harmoniously. In this case the provisions of Section 3 of the Divorce Act must be read in line with the provisions of Sections 4 and 11 of the Civil Procedure Act, and Section 207 of the Magistrates Court Act (as amended by Act No.7 of 2007), and the decision in *Fredrick Kato Versus Ann*

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*Njoki Divorce Cause No.* 0010/2007 in so far as jurisdiction of the Magistrate Courts is put into check prior to hearing any Divorce/matrimonial matters by the Magistrate Courts.

- 32. It would therefore be wrong for a trial Court, in this case the Magistrate Grade 1 Court to cloth itself with jurisdiction solely relying on the Divorce Act in disregard of the provisions on jurisdiction set out in the Civil Procedure Act and the Magistrates Court Act as highlighted in this judgment above. Clearly, there are circumstances that would reasonably indicate that the value of the property involved the Divorce proceedings of the lower Court exceed UGX $20,000,000/$ =, which is beyond the pecuniary jurisdiction of the Magistrate Grade One. A decision without jurisdiction is a nullity, however well-reasoned it maybe. Therefore, the proceedings, judgment and orders of the trail Court are set aside for lack of jurisdiction. - 33. Since this is a family matter and considering the fact that the Appellant died before the Appeal, I make no orders as to costs. - 34. In all, will not delve into the other grounds of appeal as they are nonconsequential since jurisdiction overrides all other issues.

In conclusion, the appeal succeeds and I make the following orders: -

- $a)$ The Judgment and orders by the Learned Magistrate Grade One in Divorce Cause No. 002 of 2019 are hereby set aside for lack of jurisdiction. - $\mathbf{b}$ ) No orders as to costs since this is a family matter.

It is so ordered.

Judgment signed and delivered by email on this $30^{\text{th}}$ day of April, 2024

**LAWRENCE TWEYANZE** JUDGE. 30th April, 2024.