Namara v Tukamwesiga (Civil Appeal 15 of 2022) [2024] UGHCFD 54 (11 September 2024)

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

### **[FAMILY DIVISION]**

#### **CIVIL APPEAL NO. 15 OF 2022**

# **(ARISING OUT OF DIVORCE CAUSE NO. 17 OF 2021 AT MENGO)**

**NAMARA RUTH :::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

# **TUKAMWESIGA PHENEHAS ::::::::::::::::::::::::::::::::: RESPONDENT**

**JUDGEMENT BEFORE HON. LADY JUSTICE CELIA NAGAWA**

# **1.0 Introduction.**

- 1.1 This is an appeal arising from the judgement and decree of the orders of Her Worship Muwanika Joanita Magistrate Grade 1 dated 14th July, 2022 delivered on 18th July, 2022. The Grounds of Appeal are set forth as follows; - 1. **That the learned trial Magistrate erred in law and fact when she failed to properly evaluate evidence and granted the Respondent unsupervised visitation rights over the child, Mya Namara.** - 2. **That the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence and granted the Respondent joint custody over the child Mya Namara.** - 3. **That the learned trial Magistrate erred in law and fact when she declined to grant fifty per cent compensation**


**to the Applicant for expenses spent on the child since birth.**

- 4. **That the learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence properly and came to the wrong decision on the custody of the child.** - 1.2 The Appellant prays for the following; - a) Be pleased to allow this Appeal. - b)Set aside the Ruling and orders of the Trial Magistrate regarding the Custody and Maintenance of the Child Mya Namara and substitute the same as follows; - i) Sole Custody be granted to the Appellant. - ii) Gradual supervised visitation rights be granted to the Respondent, subject to variation. - iii) Order the Respondent to pay fifty per cent (50%) of maintenance spent by the Appellant on the child since birth. - c) Costs of the Appeal be borne by the Respondent. - 1.3 The Respondent was served and an affidavit of Service was filed on18th June, 2024. - 1.4 The Appellant was represented by Counsel Diana Kasabiiti of M/S Diana K & Company Advocates, Kampala. - 1.5 The Respondent was represented by Counsel Robert Kasaija and Sharon Murungi of M/S R Kasaija & Company Advocates, Kampala.

# **2.0 Background of the Appeal.**

2.1.1. The Appellant and the Respondent were married on the 29th June, 2013 at All Saints Cathedral. The Appellant got pregnant and travelled to the United Kingdom for the care and financial help that she was not receiving from the Respondent. The Appellant asserts


that this was done with the consent of the Respondent who drove her to the hospital.

- 2.1.2. The Appellant informed the Respondent of the birth of their child Mya Nziima Namara. However, the Appellant stated that she returned home to a locked house and all efforts to reach the Respondent were in vain. The Respondent has only visited the child once according to the Appellant and has made no further attempts to provide for her. The Appellant found a house and has lived alone with the child ever since. - 2.1.3. In 2021, the Respondent filed Divorce Cause No. of 2021at Chief Magistrate's Court of Mengo seeking dissolution of the marriage and full custody of the child who was 7 years old at the time. The Appellant cross-petitioned the court for divorce and full custody of the child. She also sought to recover 50% of the expenses spent on the child during the first seven years in which she solely looked after the child, before the Respondent filed for divorce. - 2.1.4. The Respondent contended that he was against the Appellant's move to the United Kingdom at 6 months pregnant. He stated that she cut off all communication with him and he heard from family members that she had given birth to a baby girl. He stated that his effort to pay school fees for the child was futile as the appellant returned the money he sent. The Respondent being frustrated by the Appellant's actions and infidelity, petitioned the court for divorce and sole custody of their child.

# **2.2. Decision of the Court in Divorce Cause No. 17 of 2021.**

2.3. The Parties consented to the dissolution of the marriage, and the court issued a decree nisi dissolving the marriage on 21st May, 2021. The remaining issues were on the custody and maintenance of the child.


- 2.4. The Magistrate Court granted specific unsupervised weekly and biweekly visitation rights to the Respondent enforced in the 1st six months and then upgraded to overnight stays every two weekends in a month for another 6 months after which joint custody would take effect. - 2.5. The Trial Magistrate also declined to award the award of 50% of the total expenses incurred by the Appellant during the first 7 years of the child's life.

# **3. Duty of the 1st Appellate Court**

3.1. In agreement with both Counsel for the parties, the first Appellate Court has a duty to review the evidence of the case and to consider the materials before the trial Judge. The Appellate Court must then make up its own mind not disregarding the Judgment appealed from but carefully weighing and considering it. **Kifamunte Henry Vs. Uganda S. C. C. A. No. 10 of 2007 at p.5.**

# **3.2. Submissions by Counsel.**

- 3.3. The Petitioner and the Respondent filed written submissions to resolve this Appeal, which this Court has perused, analysed and considered in the determination of this Appeal. Every effort by counsel to have this matter resolved is thus appreciated by the court. - 3.4. **Resolution of the Grounds of Appeal.**

# **Ground 1. That the learned trial Magistrate erred in law and fact when she failed to properly evaluate evidence and granted the Respondent unsupervised visitation rights over the child, Mya Namara.**


**Ground 2. That the learned trial Magistrate erred in law and fact when she failed to properly evaluate the evidence and granted the Respondent joint custody over the child Mya Namara.**

# **Ground 4. The learned Trial Magistrate erred in law and fact when she failed to evaluate the evidence properly and came to the wrong decision on the custody of the child.**

- 3.4.1. The Appellant rightfully elected to resolve issues 1, 2 and 4 concurrently as they both revolve around the Custody of the Child Mya Namara. The court adopts this format. - 3.4.2. On these grounds, the Applicant submitted that whereas the learned Magistrate addressed her mind to the provisions of the law and decided cases, she failed to evaluate the evidence before her and arrived at a wrong decision on custody of the child in light of the Welfare principle. It is her submission that this was a proper case for sole or primary custody to be granted to the Appellant. - 3.4.3. The Appellant submitted that there were exceptional circumstances that warranted the grant of primary custody in favour of the Appellant. This was based on the fact that the Respondent denied his child shelter from her infancy to date, he chose not to maintain the child and he used their child in a dispute against the appellant. The Appellant also stated that the Respondent is a stranger to the child. - 3.4.4. It was the Appellant's submission that the court should have examined the above circumstances before granting the Respondent joint custody with the Appellant. Counsel for the Appellant asserted that the learned trial Magistrate did not refer to the evidence presented by the Appellant/Respondent therein. The Appellant


further submitted that there was no evaluation of the effect of the Respondent's conduct actions.

- 3.4.5. The Appellant also submitted that the visitation orders made by the trial Magistrate were not in the best interests of the child. She stated that the trial Magistrate failed to consider the fact that the visits would be disruptive to both the child and the parties as the child had only been in the custody of the Appellant. - 3.5. In Reply to this, the Respondent submitted that the learned Magistrate properly evaluated the evidence while addressing herself to the guiding principles relating to the welfare of the child before she granted joint custody to the Respondent. Counsel for the Respondent submitted that there were no exceptional circumstances to warrant the grant of sole custody to the Appellant. He contended that he has at all material times yearned to be in his daughter's life and that the Appellant denied him access and opportunities to get to know her. It was his testimony that he has other children who are around the same age as Mya Namara with whom she will get to have a relationship. He also confirmed that he has a stable income and will be able to care for her. - 3.6. In reaching her decision on the custody of Mya Namara, the trial Magistrate appropriately prioritized the child's best interests, as mandated by **Section 3 of the Children Act, Cap. 62,** which emphasizes that the welfare of the child is the paramount consideration. She also referred to **Section 4 of the same Act,** which outlines the right of every child to live with their parent or guardian. Furthermore, the trial Magistrate cited **Article 34(1) of the Constitution of the Republic of Uganda (1995),** which enshrines the right of all children to know and be cared for by their parents.


- 3.6.1. The Trial Magistrate also referenced the legal precedent set in **Rwabuhemba Tim Musinguzi Versus Harriet Kamakune (Civil Application No. 142 of 2009) [2009] UGCA 34,** where the court affirmed that parents hold the primary right to the custody of their children, with both parents having equal and similar rights in this regard. - 3.6.2. In her judgment, the trial Magistrate noted that she had the opportunity to speak with the child, who expressed a desire to get to know her father. - 3.6.3. It was evident that the trial Magistrate carefully considered the fact that the child had been in the care of her mother for her entire life, as well as the potential psychological impact that a sudden change in living arrangements could cause. She drew upon the case of **Otto Methodius Pacific Versus Edyline Sabrina Pacific (HCCA No. 88 of 2013),** in which it was established that granting sole custody should be an exceptional measure, reserved for situations where there is evidence of physical, sexual, or emotional abuse. - 3.6.4. Taking all these factors into account, the trial Magistrate determined that it was in the child's best interests to gradually build a relationship with her father in a way that would allow for a meaningful bond to develop, without causing abrupt or disruptive changes. Consequently, the Learned Magistrate ordered that the Respondent (the Petitioner therein) be granted visitation rights in a child-friendly, neutral setting for six months. Following this period, the father would be allowed to spend two weekends each month with the child at his home for another six months. Upon the successful completion of these arrangements, both parents would then share custody of the child.

 - 4.0. In determining this Appeal, the court will consider what is in the best interests of the child in question. It is well-settled law by a catena of judgments and by **Section 3 of the Children Act, Cap. 62,** that while deciding matters of custody of a child, the primary and paramount consideration is the welfare of the child. - 4.1. Every child requires the love, affection, company, and protection of both parents. This is not only the requirement of the child but is his/her basic human right. Just because the parents are at war with each other, does not mean that the child should be denied the care, affection, love or protection of any one of the two parents. - 4.1.1. In the matter of **Twesiga (Infant ) (Miscellaneous Application 4 of 2008) [2008] UGHCFD 1 (16 September 2008)** Court stated that while the primary right of the child is to grow up under the tutelage of his or her parents, or parent, for the obvious reason of emotional attachment; if it is shown to the satisfaction of a competent authority, and in this case the Court, that it would serve the best interest of the child, then it would be proper for this Court to make an order removing such child from the parent. - 4.1.2. **Article 31 of the Constitution** provides for the right and duty of the parents to care for and bring up their children and that children *may not be separated from their families or the persons entitled to bring them up against the will of their families or those persons except in accordance with the law.* - 4.1.3. **Article 18 of the Convention on the Rights of the Child** provides that both parents have *common responsibilities for the upbringing and development of the child.* Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern.


- 4.1.4. In this case, the court cannot conclude that a parent's past absence from a child's life should automatically disqualify them from future efforts to assume their parental responsibilities. To impose such a restriction would not only unfairly penalize the parent but, more importantly, would harm the child by depriving them of the opportunity to build a meaningful relationship with that parent. The primary focus must always be in the best interests of the child, which includes the potential for positive involvement from both parents, regardless of previous circumstances. Denying a parent, the chance to participate in their child's life solely due to prior absence would ultimately hinder the child's emotional and developmental well-being. - 4.2. **In Re B (A Child) [2009] UKSC 5 (UK Supreme Court)** stated in regard to children and custody that;

"*Their welfare is the court's paramount consideration. In reaching its decision the court should always have in mind that in the ordinary way the rearing of a child by his or her biological parent can be expected to be in the child's best interests, both in the short term and also, and importantly, in the longer term. I decry any tendency to diminish the significance of this factor. A child should not be removed from the primary care of his or her biological parents without compelling reason. Where such a reason exists the judge should spell this out explicitly."*

4.3. While in this case the child has been in the primary care of one biological parent, an order granting sole/primary custody to the Appellant would essentially permanently remove the child from the Custody of the Respondent, her biological father who has expressed a clear interest to care for his child.


- 4.4. There are also two constitutionally guaranteed rights in question here, one being the parents right and duty to care for and bring up their children under **Article 31 (4) of the constitution of the Republic of Uganda 1995,** and the other being the child's right to know and be cared for by their parents or those entitled by law to bring them up under **Article 34.** This is to be determined in conjunction with the child's best interests, the best interests being paramount. - 4.5. There was no evidence presented to this court that there was threat or history of abuse likely to be occasioned on the child by her father. The courts have determined that a threat of harm from the parent has to exist for them to be deprived of their right to care for their child, and the child to be deprived of her right to be cared for by her father. - 4.6. While the Appellant's arguments and reservations concerning the lack of a relationship between the Respondent and the Child are recognized by the court. This court finds that in making her orders on Custody, the learned Magistrate rightfully ordered that the Child be introduced to her father in a carefully ordered staggered approach. The court finds that the learned Magistrate rightly evaluated the evidence before coming to the right decision. - 4.7. The learned Magistrate's orders will allow the child to form a relationship with the Respondent at a controlled and contained pace allowing for emotional adjustments on both ends. The law prioritizes the child's best interests above all, and these interests are often served by fostering healthy relationships with both parents unless there are compelling reasons to do otherwise. - 4.8. The Respondent's past absence and lack of relationship with the child is not sufficient reason enough to prevent future parental


involvement. The respondent demonstrated a willingness to reestablish the relationship with his child, and this should be fostered not hindered.

4.9. The court finds that the learned trial Magistrate properly evaluated the evidence before her and came to the right decision on the Custody of the child. Grounds 1, 2 and 4 therefore fail.

## **5.0. Ground 3. That the learned trial Magistrate erred in law and fact when she declined to grant fifty per cent compensation to the Applicant for expenses spent on the child since birth.**

- 5.1. On this ground, the Respondent submitted that she bore the sole burden of taking care of the child's expenses, living, education and medical for 7 years, now 10. The annual expenses incurred by the Appellant were admitted under "RE G" of the Record of Appeal. The Appellant contends that she still bears this responsibility to date. - 5.2. The Respondent submitted that the trial Magistrate rightfully decided on the compensation to the Appellant for maintenance, for expenses spent on the child when she determined that, giving such an order had the potential to destroy the family relations that the court wishes to build and maintain for the sake of the child. - 5.3. In her judgment regarding retroactive maintenance, Her Worship Mwanika Joanita ruled that the court shall not order the Respondent to compensate the Appellant monetarily for the care provided to the child. The learned Magistrate reasoned that such an order could potentially undermine the family relationships that the court aims to foster and preserve. - 5.4. The court's primary consideration is the best interests of the child. While the Appellant may have incurred expenses in caring for the child during the Respondent's absence, the court must balance this against the potential negative impact on the child's current and


future well-being. Ordering retroactive compensation could create further animosity between the parties, which may ultimately harm the child's emotional stability and the ability of both parents to cooperate in the child's upbringing.

- 5.5. The Respondent earns 517,000/= (Five Hundred Seventeen Thousand Uganda Shillings). He also has other children to care for. Imposing a retroactive monetary obligation could place an undue burden on the Respondent and potentially compromise their ability to provide for the child going forward. - 5.6. Her Worship Mwanika Joanita's decision not to order retroactive compensation reflects the court's responsibility to prioritize the child's best interests, foster positive family relationships, and ensure that child support obligations are fair and sustainable for both parents. Child Maintenance is meant to foster the child's wellbeing, not settle grievances or settle accounts between parents. - 5.7. While the court does not excuse a parent's absence from a child's life, its primary duty is to the child presently before it, focusing on the child's current and future best interests. Therefore, the court must carefully consider how its decision will impact the child both now and in the long term. A review of the Respondent's financial situation indicates that he would be unable to repay the past expenses while also meeting the child's ongoing needs unless the intention of the order is punitive—which is not the court's purpose. - 5.8. The key question is whether ordering the Respondent to compensate the Appellant for the expenses incurred during his absence would truly serve the best interests of the child, or if it would primarily benefit and compensate the Appellant. Upon closer examination, it is evident that such an order would not advance the child's welfare but would instead serve to compensate the Appellant. This court's


foremost responsibility is to protect and prioritize the child's wellbeing, and any decision must be guided by that principle.

- 6.0. In this regard, the court finds that the learned Trial Magistrate therefore rightfully declined to grant fifty per cent compensation to the Applicant for expenses spent on the child since birth. Ground 3 of the Appeal fails. - 6.1. The Appeal is hereby dismissed with no order as to costs.

*Dated, Signed and Delivered via Email this 11th day of September, 2024.*

| | _______________________________ | |--------------|---------------------------------| | CELIA NAGAWA | | | JUDGE | |