Mugabe v Nyinambungira (Civil Appeal 60 of 2022) [2023] UGCA 364 (17 April 2023)

### THE REPUBLIC OF UGANDA

### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

[CORAM: Buteera, DCJ; Bamugemereire & Musota, JJA]

### CIVIL APPEAL NO. 60 OF 2022

### **BETWEEN**

### MUGABE DAVID

### AND

### } APPELLANT

#### NYINAMBUNGIRA DIANNE SHEBA LORETA 10 } RESPONDENT

(An Appeal arising from the Judgment of the Family Division of the High Court of Uganda sitting at Kampala (Murangira, J) delivered on 4<sup>th</sup> January, 2021)

### JUDGMENT OF BUTEERA, DCJ

### **Brief facts**

The appellant and the respondent solemnised their marriage on 8<sup>th</sup> October,

- 20 2016 at St. Charles Lwanga Ntinda Kampala. They had two children during their marriage. They lived together as husband and wife at the property comprised in Kyadondo Block 220 Plot 1014 at Banda. The respondent filed High Court Divorce Cause No. 117 of 2021 seeking dissolution of the marriage on grounds of adultery. The parties filed a joint scheduling memorandum and Court directed - 25 them to file written submissions. The learned trial Judge decided the matter in favour of the respondent who was granted custody and maintenance of the issues, awarded general damages, and costs.

The Appellant being dissatisfied with that decision has now appealed to this Court on the following grounds;

30 1. The learned trial Judge erred in law when he proceeded to determine the petition without a hearing and in absence of evidence being led by the parties.

- 2. The learned trial Judge erred in law and fact when he awarded unproved and unjustified general damages of UGX 20,000,000 payable within one month from the date of Judgment against the Appellant. - 3. The learned trial Judge erred in law and fact when he granted sole custody of the children to the respondent while only allowing the appellant ambiguous visitation rights of once a month contrary to the best interests of the children. - 4. The learned trial Judge erred in law and fact when he ordered the appellant to pay, in addition to the appellant's contribution proposal of UGX 2,300,000, an additional UGX 2,000,000 per month in disregard of his financial means and a monthly salary of UGX 4,630,000. - 5. The learned trial Judge erred in law and fact when he failed to quantify the specific monetary contribution of the respondent to the 15 welfare of the children in disregard of her pleaded admission to being employed and earning a monthly salary of UGX 2,000,000 (two million shillings).

It proposed to ask the Court for orders that:

- (i) The appeal be allowed, the judgment and decree nisi of High Court be set aside and an order be issued for retrial of Divorce Cause No. 117 of 2021. - (ii) The order awarding sole custody of the children to the respondent be set aside. - $(iii)$ The appellant and respondent be awarded joint custody of the children with an order entitling the appellant to spend two full weekends with the children every month and that such order be revised by the trial court every year or earlier if circumstances warrant it.

$\overline{2}$

$\mathsf{S}$

- $(iv)$ The maintenance orders requiring the Appellant to pay a sum of UGX 2,000,000 per month in addition to his own proposal be set aside and in its place, an order be made requiring the Appellant to pay his proposed figure of UGX 2,300,000 for maintenance of the children subject to the appellant continuing to earn a monthly salary of UGX 4,630,000. - $\mathsf{S}$ - (v) The respondent pays the costs of this appeal.

### **REPRESENTATION:**

At the hearing of the appeal, the appellant was represented by learned Counsel, Mr. Jude Byamukama and the respondent by Mr. Tendo. 10

The parties filed written submissions and scheduling notes which were adopted by this Court on the application by counsel for both parties. I shall rely on both the written submissions and the scheduling notes in the resolution of the appeal.

### SUBMISSIONS OF COUNSEL FOR THE APPELLANT

#### Ground one 15

Counsel for the appellant submitted that no trial was conducted in Divorce Cause No. 117 of 2012. That the trial Judge adopted a procedure not recognized in law when he directed the parties to file submissions without taking in evidence or allowing the parties to adopt the affidavit evidence as their evidence in chief and cross-examine on the same.

Counsel further submitted that the procedure adopted by the trial Judge violated Section 30 of the Divorce Act Cap 249 and Order 18 Rule 4 of the Civil Procedure Rules which provide for an oral hearing of witnesses and examination by the parties which rendered the decision a nullity.

25 Counsel furthermore submitted that witnesses ought to have been called to give evidence or make witness statements upon which they would be cross-examined to test their credibility in the interest of justice.

He sought to rely on the cases of Rebecca Nagidde V Charles Steven Mwasa No. 160 of 2018 and Bishop Balagadde Ssekadde & 5 others Vs Moses Wamala & Ors Civil Appeal No. 27 of 2011 where the Court quashed the proceedings and ordered a retrial for failure to take in evidence.

Counsel submitted that since no trial was conducted by the lower court, the $\mathsf{S}$ reliefs granted to the respondent were unjustifiable and the failure by the trial court rendered the entire Judgment null and void.

It was also counsel's contention that the failure by the trial judge to interpret the three bars to divorce of collusion, connivance and condonation, the rendering of

an opinion that they mean the same thing was a grave error. That the Appellant's 10 condonation defence was never defeated merely because the divorce was prosecuted in connivance or collusion.

That the trial judge created an injustice when he assumed that the facts containing legal questions could be resolved as agreed facts by the parties in the

joint scheduling memorandum. He relied on the case of Elizabeth Nalumansi 15 Wamala Vs Jolly Kasande & 2 Ors SCCA No. 10 of 2015 where it was held that the question of proof of marriage cannot be settled by the parties as an agreed fact since it is a legal question which can be resolved after the establishment of the relevant facts.

#### Ground two 20

Counsel for the appellant submitted that trial court acted on wrong principles when it awarded UGX 20,000,000 (Twenty Million shillings) in general damages to the respondent to be paid in 30 days from the date of judgment. That there was no evidence led by the respondent to merit the award of damages and in

order to avoid animosity among the parties, damages are rarely awarded in 25 matrimonial causes.

Counsel contended that the trial judge granted an award of general damages on the basis of pleadings filed by counsel for the parties and not on any evidence adduced by the parties.

### **Ground three**

Counsel for the appellant submitted that there was no justification for the trial judge to deny the appellant reasonable access to the children. That the order of Court limiting the appellant's access to his children to once a month on a

particular date and venue agreed upon by the parties offends Article 31(4) of the $5$ Constitution and section 4(1) of the Children Act since it undermines the right of the children to know their father as well as the appellant's right to be involved in the upbringing of his children.

It was counsel's submission that there was no evidence on record in support of the trial Judge's grant of sole custody of the children to the respondent. That the 10 appellant was excluded from making long term decisions regarding the welfare of his children yet he is required to maintain them.

# Ground four

Counsel submitted that the monthly contribution of UGX 4,300,000 (Four Million Three Hundred Thousand shillings) in maintenance made in favour of 15 the respondent is unreasonable since court did not take into account the appellant's financial status. Counsel argued that it is a constitutional obligation for both parents to look after their children irrespective of their strained relationship.

### SUBMISSIONS BY THE RESPONDENT 20

### Ground one

Counsel for the respondent submitted that the affidavits contained the evidence of the parties in support of their respective cases. That court was satisfied based on the affidavit evidence.

Counsel submitted that the parties were accorded a free and fair hearing before 25 the court. That Counsel for the appellant dispensed with cross-examination of the respondent and sought leave to file a supplementary affidavit.

Counsel for the respondent submitted that the appellant made admissions to actions of adultery whereupon the respondent prayed to court to enter judgment on admission on the prayers sought and eventually the marriage was dissolved.

Counsel argued that it was proper for court to consider the admissions since they were clear and unambiguous. He relied on the cases of Kitgum Co-5 operative Savings & Credit Society Limited Vs Okonya John Calvin HCCA No. 85 of 2018 and Juliet Kalea Vs William Kalema CACA 95 OF 2002 in his submission.

Counsel further submitted that the appellant abandoned the defence of condonation. That if the alleged condonation had been proved still the 10 respondent would be entitled to divorce based on the subsequent adultery committed by the respondent with Namara Samantha. He relied on the cases of Beard Vs Beard (11954) ALL ER and Bertram Vs Bertram (1994) page 59 in his submission.

#### Ground two 15

Counsel for the respondent submitted that the award of UGX 20,000,000 (Twenty Million shillings) was appropriate in the circumstances and at the discretion of court after consideration of the actions of the appellant and the corespondent which caused the respondent depression, physiological torture, anxiety and embarrassment.

Counsel for the respondent submitted that no principles were advanced by the appellant for court to interfere with the award of the lower court.

### Ground three

Counsel for the respondent submitted that there was nothing wrong with the visitation rights granted by court. That the parties agreed on the venue and time 25 and the appellant has always accessed the children on all the scheduled visits. He argued that the appellant has a right to apply for a review of the order of court on the time permitted to visit the children.

Counsel for the respondent further submitted that the grant of sole custody was an exercise of discretion by the lower court after putting into consideration the welfare of the children. That the appellant did not disclose any grounds for this Court to interfere with the exercise of the trial court's judicial discretion.

Counsel further submitted that the appellant conceded to the grant of sole $\mathsf{S}$ custody of the children when he agreed to vacate the home and gave the respondent and the children its exclusive use.

Counsel also contended that the appellant has no basis to pray for joint custody since he did not pray for the same in the lower court. That it is the principle of

the law that a party must stick to his or her pleadings for which the appellant's 10 prayer is against the said principle.

## Ground five

Counsel for the respondent submitted that the respondent being in custody of the children attached a list of her expenditure amounting to UGX 5,915,000

(Five Million Nine Hundred Fifty Thousand shillings) on the supplementary 15 affidavit and the appellant had an obligation to contribute towards the well-being of the children.

Counsel for the respondent submitted that the monthly maintenance fee of UGX 2,975,000 (Two Million Nine Hundred Seventy-five Thousand shillings) is within the range of the appellant's monthly salary of UGX 4,630,000 (Four Million Six Hundred and Thirty Thousand shillings) that was declared to Court.

### SUBMISSIONS FOR THE APPELLANTS IN REJOINDER.

Counsel for the appellant submitted that the record of the lower court does not reflect that trial took place in accordance with the law to warrant a Judgment.

25 That the parties relied on affidavits and no oral evidence was taken. That both Counsel acquiesced to the irregular and unlawful mode of proceeding.

Counsel for the appellant submitted that pursuant to section 30 of the Divorce Act, the conduct of divorce proceedings has recourse to the Civil Procedure Act and its attendant rules. That the hearing is regulated under order 18 of the Civil Procedure Rules. That it's not enough to file affidavits rather court has to go through the process of trial to ascertain the findings on the court record and enter judgment.

$\mathsf{S}$

#### COURT'S DETERMINATION

I have studied the record of the lower court and considered the submissions of Counsel for both parties plus the authorities they cited together with the other material that I find relevant to this Appeal.

I am aware of the duty of the first appellate court as stated by the Supreme Court in **Kifamunte Henry versus Uganda Cr. Appeal No.10 of 1997, thus:**

> "The first appellate court has a duty to review the evidence of the case, to reconsider the materials before the trial judge and make up its own mind not disregarding the judgment appealed from but carefully weighing and considering it."

#### Ground one 15

Counsel for the appellant submitted that there was no trial conducted by the lower court in Divorce Cause No. 117 of 2021 and consequently, the resultant judgment is null and void.

The critical issue to resolve is whether the case was heard and determined in accordance with the law. What was challenged by the appellant is the procedure 20 that the trial Judge adopted which the appellant alleges was contrary to and offended the Divorce Act Cap 249, and the Civil Procedure Rules. I reproduce from the record of the trial court, the proceedings of $19/10/2021$ which are being challenged below:-

#### "Counsel for the petitioner:

Pleadings in the matter are closed and the petitioner and the $2^{nd}$ respondent have signed a joint scheduling memorandum.

The same was shared with counsel for the 1<sup>st</sup> respondent, who has yet not signed it. He promised me that he will sian tomorrow. We shall file submissions to the petition. I don't intend to cross examine the respondent on their respective affidavits. There are several admissions in adultery by the $1^{st}$ and $2^{nd}$ respondent. We shall meet as parties to sort out a consent settlement, on 26/10/2021 at 2:30pm in the $2^{nd}$ respondent counsel's chambers.

#### Counsel for the 1<sup>st</sup> respondent:

We agreed as counsel for the petitioner and $2^{nd}$ respondents to dispense with cross-examination and straight to go for written submissions. Seek leave to file in Court supplementary affidavit in support of the $1^{st}$ respondent's answer to the petition. It is going to be limited to:

- 1. Condotion of adultery - 2. Then it will relate to matrimonial property and attach payments for the owner of the *matrimonial property.*

*We need to file it tomorrow and serve the opposite party. That is our prayer.*

#### Counsel for the petitioner: rejoinder

The petitioner is not interested in the matrimonial property. In her petition she has not stated to any property acquired by the parties. The issue of condonation is covered by the $1^{st}$ respondent in his answer to the petition, paragraph 5. The pleading is very

$\mathsf{S}$

#### 25

clear. Therefore, I don't see any reasons why the 1<sup>st</sup> respondent wants to file in court a supplementary *affidavit.*

## Counsel for the 1<sup>st</sup> respondent:

The property on the issue of the table. But we want to bring in issue the texted messages vide a supplementary affidavit and we seek leave to do so.

### Counsel for the petitioner:

We take the evidence of court and he can file the supplementary affidavit.

#### Court:

$...$

$\mathsf{S}$

Very well. By consent of parties, the $1<sup>st</sup>$ respondent is allowed to file in court a supplementary affidavit in support of the answer to the petition by 29/10/2021 at 12:00noon and serve Counsel for the petitioner and the $2^{nd}$ respondent on that same date.

1)Counsel for the petitioner shall file in court his affidavit in rejoinder on 01/11/2021 by 12:00noon and serve Counsel for the $1$ <sup>st</sup> and respondents, respectively.

2) The parties are further allowed to file in court their respective written submissions together with the authorities each party intents to rely on as shown here below.

3)Counsel for the petitioner to do by the $15th/11/2021$ at 12:00noon and serve counsel for the $1^{st}$ and $2^{nd}$ respondents on that same date.

4)counsel for the $1^{st}$ and $2^{nd}$ respondents to file in court their respective written submissions in reply by the 30<sup>th</sup>/11/2021 at 12:00noon and serve Counsel for the petition on that same date.

5)Counsel for the petitioner shall file in court his written submissions in rejoinder by the $6^{th}/12/2021$ at 2:00pm" $(Sic)$

I will examine whether the procedure that the trial Judge adopted complied with Section 30 of the Divorce Act and Order 18 and 19 of the Civil Procedure Rules 5 which provides for the procedure to be followed in the hearing of civil cases. Divorce proceedings are regulated by the Civil Procedure Act and regulations as mandated by Section 30 of the Divorce Act which provides:-

"Subject to the provisions of this Act, all proceedings under this Act 10 shall be regulated by the Civil Procedure Act."

Section 33 of the Divorce Act provides for the examination of witnesses, as follows:-

"Examination of witnesses. The witnesses in all proceedings shall be examined; except that the parties may verify their respective cases by affidavit, but so that the deponent may be orally cross-examined and reexamined either on the application of the other party or by direction of the court."

Order 18 rule 4 and Order 19 rules (1) & (2) of the Civil Procedure Rules provide the procedure to be followed. Order 18 rule 4 provides: -20

"Witnesses to be examined in open court.

The evidence of the witnesses in attendance shall be taken orally in open court in the presence of and under the personal direction and superintendence of the judge".

25 Order 19 rules 1 & 2 provide: -

"1. Power to order any point to be proved by affidavit.

Any court may at any time for sufficient reason order that any particular fact may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court

thinks reasonable; except that where it appears to the court that either party bona fide desires the production of a witness for cross examination and that such witness can be produced, an order shall not be made authorizing the evidence of that witness to be given by affidavit

2. Power to order attendance of deponent for cross-examination.

(1) Upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross-examination of the deponent.

(2) The attendance shall be in court, unless the deponent is exempted from personal appearance in court or the court otherwise directs."

This court had occasion to consider the application of the provisions of Orders 18 and 19 of the Civil Procedure Rules in Civil Appeal No. 27 / 2011 Bishop

Balagadde Ssekadde and five others Versus Moses Wamale and 2 others, in 15 circumstances and facts similar to the facts of this case and the court held:-

> "The foregoing provisions allow affidavit evidence to prove a particular fact or of any witness. What it does not authorize is the conduct of a whole trial only on affidavit evidence. Secondly where such witness would need to be cross examined then no order should be made for affidavit evidence to be received from such witness.

> Much as this issue was not raised by the parties during trial, it is of relevance in this matter. It is also evident that neither of the parties challenged the directive of the trial court to file affidavit evidence but that does not negate the duty of the trial court to conduct a full and proper trial which must be oral. The relevance of affidavit evidence is to enable the expeditious disposal of the cases by taking up the form of the examination

> > 12

# in chief. However, the witnesses must adopt their statements in court during trial and be cross examined on them at the option of the parties." (Sic)

The court in that Civil Appeal quoted the holding of **Kashongole Godfrey V** Kafeero Francis (2017) UG CA 130 as follows:-

$\mathsf{S}$

"It is clear from the foregoing provision that judgment can only follow after the case had been heard. A trial ought to have taken place.

[Order 18 Rules 1-11 of the Civil Procedures Rules was set out.] The foregoing provisions envision an oral hearing with witnesses being called in person and examined by the parties. Provision is made for *proof of certain facts by way of sworn statements or affidavits. This* is Order 19 Rules 1 which states.

'Any court may at any time for sufficient reason order that any particular fact may be proved by affidavit, or that the affidavit of any 15 witness may be read at the hearing, on such conditions as the court thinks reasonable; except that where it appears to the court that either party bona fide desires the production of a witness for crossexamination and that such witness can be produced, an order shall 20 not be made authorizing the evidence of that witness to be given by affidavit.'

> The court is authorized to order particular facts to be proved by affidavits but where it appears that cross-examination will be necessary no order shall be made authorizing evidence to be given by *way of affidavits. It cannot be asserted that the procedure adopted in* the court below was in compliance with order 19 rule 1.

> Neither can it be asserted that the procedure adopted in the court below followed what is prescribed in order18 of the Civil Procedure *Rules. No witnesses were called. No hearing took place. The parties*

filed sworn witness statements which the learned judge took as evidence in the case plus annextures to the pleadings or documents that parties had filed and that formed the basis upon which the judgment was pronounced.

We are aware that a practice has developed in some divisions of the $\overline{5}$ High Court of Uganda in which witness statements are filed before the hearing of the case but such witness statements must be adopted at the hearing of the case by the witnesses in question in person and it is taken to form the examination in chief of that witness's evidence *with cross examination following as the appropriate.* 10

> We approve of efforts taken to develop procedures that expedite the hearing and determination of cases but such procedures must be consistent with existing law or at least not in conflict with existing $law.'$ (Sic)

Court in **Bishop Balagadde Ssekadde** (supra) proceeded to hold that: 15

"In light of the above, there was a clear violation of Order 18 and Order 19 rule 1 of the Civil Procedure Rules as this is the kind of matter where cross examination was necessary in the interests of justice. There was no justifiable reason for the trial court to adopt the procedure it did. All the witnesses ought to 20 have been called to give their evidence or their affidavits or written statements read in open court so as to allow cross examination to take place. In my opinion the trial was incomplete and irregular. The resultant judgment cannot stand."

In the instant case, the trial Judge adopted a procedure that did not follow Order 18 rule 4 and Order 19 rule 1 and 2. Following the authorities above quoted, the witnesses must adopt their statements in court and be cross-examined on them at the option of the parties. Cross - examination is very important. This was emphasized in **Kato Sula v** Uganda; Supreme Court Criminal Appeal No. 25 of 2000, where Court addressed the necessity of cross- examining a witness. Court held as follows:

"Furthermore in Uganda, all trials of cases are subject to the provisions of article 28 of the Constitution. This article is about fair hearing. The virtue of fair hearing is that a party in a case should be in a position to controvert his or her opponent either by contrary evidence or by cross- examining a witness who gives evidence against him so as to test the veracity of the witness who testifies. The article provides in part:-

$\cdots$

These provisions are intended to ensure that an accused person received a fair trial. There can be no fair trial if an accused is denied the right to cross- examine witnesses who are produced to testify against him or her. The essence of cross- examining a witness of the opposite party is to test the credibility of that **witness.**" (Emphasis added)

Although **Kato Sula** (supra) is a criminal case, I find the principles addressed by the Supreme Court applicable and instructive in the Civil Proceedings as well. The essence of cross- examination is to test the credibility of the witness as well as the veracity of the evidence.

In Uganda Co-operative Transport Union Ltd v Roko Construction Ltd; SC Civil Appeal No. 35 of 1995, the Supreme Court while considering a matter where there had been no cross- examination held thus:

25 "Order 16 of Civil Procedure Rules regulates hearing of suits.

O.16 rule 3 reads:-

Where there are several issues, the burden of proving some of which lies on the other party, the party beginning may, at his option, either produce evidence on those issues or reserve it by way of answer by evidence on those issues or reserve it by way of answer by evidence produced by the other party; and in the latter case, the party beginning may then reply specially on the evidence so produced by the party beginning; but the party beginning will then be entitled to reply generally on the whole case".

By Order 16 rule 4:-10

> "The evidence of the witnesses in attendance shall be taken orally in Open Court in the presence of and under the personal direction and superintendence of the Judge".

Section 136 (1) of the Evidence Act states: -

"Witnesses shall be first examined -in-chief, then (if the adverse 15 party so desires) cross-examined, then (if the party calling them so desires) re-examined".

By Article 28(1) of 1995 Constitution: -

"In the determination of civil rights and obligations .... A person shall be entitled to a fair, speedy and public hearing before an **independent and impartial Court ......"**

I will summarize the position from the above provisions thus: -

Hearing cases must normally be in open Court.

Evidence adduced by one party must be open to challenges by the other party.

A witness called by one party must be open to crossexamination by the other party to test the reliability of the evidence of such witness.

The essence of (i) to (iii) is to ensure a fair public trial.

The above authorities show the necessity and importance of cross- examination. $\mathsf{S}$ It would appear however, that what is mandatory is the opportunity to crossexamine a witness. A party may for reasons best known to them choose not to cross-examine.

Section 137 (1) of the Evidence Act, Cap 6, provides for order of examinations, as follows: $10$

> (1) Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling them *so desires) reexamined.* (Emphasis mine)

Sarkar on Evidence, Vol. 2, while addressing the examination of witnesses states 15 on page 1998:

> Right to Cross-Examine is Not Enough: There Must be Opportunity to Exercise the Right. [Opportunity is Equivalent to Actual Cross-Examination]

"The rule of the common law is that no evidence shall be 20 admitted but what is or might be under the examination of both parties. But if the adverse party has had liberty to crossexamine and has not chosen to exercise it, the case is then the same in effect as if he had cross- examined. Here then the question is whether the defendant had an opportunity of cross-25 examining" [per Ellenborough LCJ, in Cazenove v Vaughan, 1 M & s 6]. The same rule is stated in Hals $3^{rd}$ Ed Vol 15 para 800: "No evidence affecting a party is admissible against that party

unless the latter has had an opportunity of testing its **truthfulness by cross-examination".** (Emphasis added)

The author went on to state:

"The doctrine requiring a testing of testimonial statements by cross- examination has always been, understood as requiring, $5$ not necessarily an actual cross- examination, but merely an opportunity to exercise the right to cross- examine if desired. The reason is that, wherever the opponent has declined to avail himself of the offered opportunity, it must be supposed to have been because he believed that the testimony could not or need 10 not be disputed at all or be shaken by cross- examination. This doctrine is perfectly settled. By the present doctrine, testimony never actually tested at all, in consequence of the carelessness, fraud, or incompetence of counsel, or of privity in interest is 15 admitted, if merely the opportunity to test it had existed."

I am persuaded by the authorities above quoted. A party should be availed the opportunity to cross-examine witnesses. He or She may choose not to crossexamine. In the instant case, the parties did not produce the witnesses in court but only filed affidavit evidence. They chose to dispense with cross-examination

of the deponents of the affidavits before the affidavit evidence was filed in Court. 20

There was no opportunity for the trial Judge and the opposite party to know the evidence adduced by the parties' affidavits filed to determine whether it was necessary to cross - examine the witnesses on their affidavits or dispense with cross-examination.

The approach proposed by both counsel and adopted by the trial Judge clearly 25 violated Order 18 rule 4 and Order 19 rule 1 of the Civil Procedure Rules.

Witnesses ought to be given opportunity and be called to give their evidence or their affidavits or written statements read in open court so as to be allowed. The parties may then dispense with cross-examination.

Having so found as I do above, I do not find it necessary to consider the remaining grounds of Appeal.

In the end result, I would allow the appeal with no order as to costs. As Justice Bamugemereire and Justice Musota agree with me, the decree nisi and the judgment of the trial court are set aside. It is ordered that the file be remitted to the High Court for re-trial before another Judge. No order is made as to costs in

order to promote reconciliation and social cohesion. Dated at Kampala this ....................................

Kauther

R. Buteera **Deputy Chief Justice**

$15$

$5$

#### THE REPUBLIC OF UGANDA

#### IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CIVIL APPEAL NO.60 OF 2022

[CORAM: Buteera, DCJ; Bamugemereire & Musota, JJA]

#### **BETWEEN**

MUGABE DAVID ::::::::::::::::::::::::::::::::::::

AND

#### NYINAMBUNGIRA DIANNE SHEBA LORETA ::::::::::::::::::::::::::::::::::::

(An Appeal arising from the Judgment of Joseph Murangira, J sitting at the High *Court of Uganda Family Division delivered on 4<sup>th</sup> January 2021 at Kampala)*

# JUDGMENT OF CATHERINE BAMUGEMEREIRE JA

I have had the privilege to read, in draft, the Judgment of our learned brother The Hon. Mr. Justice Richard Buteera, DCJ. I agree with his reasoning. decision and orders. I would allow the appeal but would make no order as to costs in order to not exacerbate the already fragile situation.

Dated this $\int$ day of day of 2023.

**CATHERINE BAMUGEMEREIRE JUSTICE OF APPEAL**

## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

## CIVIL APPEAL NO. 60 OF 2022

(Arising from the Judgment of the High Court Family Division before *Murangira, J, delivered on 4<sup>th</sup> January 2021)*

MUGABE DAVID ::::::::::::::::::::::::::::::::::::

## **VERSUS**

# NYINAMBUNGIRA DIANNE SHEBA LORETA ::::::: RESPONDENT CORAM: HON. JUSTICE RICHARD BUTEERA, DCJ HON. JUSTICE CATHERINE BAMUGEMEREIRE, JA HON JUSTICE STEPHEN MUSOTA, JA

# JUDGMENT OF HON. JUSTICE STEPHEN MUSOTA, JA.

I have the benefit of reading in draft the judgment by my brother Hon. Justice Richard Buteera, DCJ.

I agree with his decision and the orders he has proposed. I have nothing useful to add.

Dated this $\int^{\pi}$ day of $A$ 2023

Dund Un?

**Stephen Musota JUSTICE OF APPEAL**