Nanjeho v Adiga (Civil Appeal 54 of 2023) [2024] UGHCFD 75 (28 October 2024)

#### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) CIVIL APPEAL NO. 54 OF 2023**

#### **(ARISING FROM DIVORCE CAUSE NO. 090 OF 2022 AT THE CHIEF MAGISTRATE'S COURT OF AT MAKINDYE)**

### **NANJEHO DIANA :::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS**

#### **JAMES ADIGA ::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

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

#### **1.0 Introduction.**

- 1.1 This is an appeal arising from the judgement and orders of Her Worship Patience Lorna Tukundane in the Chief Magistrate's Court of Makindye at Makindye delivered on 6th July 2023. The Grounds of Appeal are set forth as follows by the Appellant. - 1. The learned trial Magistrate erred in law and fact in condemning the Appellant unheard and denying her the right to a fair hearing in the Divorce Petition by failing to take evidence and hear witnesses thereby reaching a wrong conclusion. - 2. The learned trial Magistrate erred in law and fact when she left the issue of custody unresolved and erroneously ordered for the same to be handled by the country of Residence. - 3. The Learned Trial Magistrate erred in law and fact when she declined to award the Appellant a share in the properties situate at Arua, Kuluva and Kiwatule Balintuma Zone. - 4. The Trial Magistrate erred in law and fact when she held that the Appellant was entitled to Alimony.


- 1.2 The Appellant prayed for the following orders; - 1. The Appeal be allowed. - 2. The whole Judgement and orders of the trial magistrate be set aside and a re-trial be ordered. - 3. In the alternative but without prejudice to (2) above, the whole Judgement be set aside and the court grants the Appellant a share in the matrimonial property at Kiwatule and Arua. - 4. Custody of the issue be granted to the Appellant while the Respondent is ordered to provide maintenance. - 5. The Respondent's prayers in the Chief Magistrates Court be granted. - 6. The Appellant be awarded all the costs in this court and the court below. - 1.3 The Appellant was served and he filed an affidavit in Reply to the Memorandum of Appeal. - 1.4 At the trial, the Appellant was represented by Counsel Nakiraya Mary of FIDA (U) Legal Aid Clinic. - 1.5 The Respondent was represented by Counsel Okecho Nancy holding brief for Counsel Sylvia Winter of M/S Acali & Company Advocates. - **2.0 Background of the Appeal.** - 2.1 The Appellant being aggrieved with the Judgement of Her Worship, Patience Lorna Tukundane Magistrate Grade One in the Chief Magistrate's Court of Makindye at Makindye delivered on the 6th of July, 2023 for dissolution of the Marriage that the parties solemnised on the 15th November, 2014 at Nsambya Catholic Church, lodged an Appeal challenging the said decision and set forth grounds for the same.


### **3.0 Decision of the Court in Divorce Cause No. 090 of 2022.**

- 3.1 The trial Magistrate made the following orders; - 1. A Decree Nisi granted dissolving the Petitioner and Respondent's marriage. - 2. Issues of custody to be handled by the country of residence. - 3. The Court awards no share in the property owned by the Petitioner. - 4. Each party to bear its costs.

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

- 4.1 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 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.** - **5.0 Submissions by Counsel.** - 5.1 The Petitioner did not file written submissions despite instructions to do so on 17th May, 2024. The Respondent filed written submissions at this court on 24th July, 2024. This Court has perused, analysed and considered these in the determination of this Appeal. - **6.0 Resolution of the Grounds of Appeal.** - **Ground 1: The learned trial Magistrate erred in law and fact in condemning the Appellant unheard and denying her the right to a fair hearing of the Divorce Petition by failing to take evidence and hear witnesses thereby reaching a wrong conclusion.** - **Ground 2: The learned trial Magistrate erred in law and fact when she left the issue of custody unresolved and**


**erroneously ordered for the same to be handled by the country of Residence.**

**Ground 3: The Learned Trial Magistrate erred in law and fact when she declined to award the Appellant a share in the properties situate at Arua, Kuluva and Kiwatule Balintuma Zone.**

# **Ground 4: The Trial Magistrate erred in law and fact when she held that the Appellant was entitled to Alimony.**

The Appellant did not present this court with any submissions or pleadings explaining the above grounds. The court will only examine this appeal based on the record of the lower court, the grounds and the Respondent's submissions in reply.

**Ground 1: The learned trial Magistrate erred in law and fact in condemning the Appellant unheard and denying her the right to a fair hearing of the Divorce Petition by failing to take evidence and hear witnesses thereby reaching a wrong conclusion.**

- 6.1 **Article 28(1) of the Constitution of the Republic of Uganda 1995** on the right to fair hearing states: - "In the determination of Civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law." - 6.2 Under **Article 44 (c) of the Constitution of the Republic of Uganda 1995,** the right to a fair hearing is non-derogable. It provides that notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the right to a fair hearing among other rights and freedoms.


6.3 The Constitution does not clearly define fair hearing or trial. However, the **Black's Law Dictionary (8th Edition)** defines a "Fair hearing" as

"*One in which authority is fairly exercised, that is consistent with the fundamental principles of justice embraced within the conception of due process of law. Contemplated in a fair hearing is the right to present evidence, to cross-examine, and to have findings supported by evidence."*

- 6.4 The Applicant asserts that she was deprived of her right to a fair hearing when the lower court failed to take evidence and hear witnesses thereby reaching a wrong conclusion. The court has had the opportunity to study the Record of the Lower Court and from its study, the court found that the Appellant was allowed to be heard and present her evidence as desired. In fact, the timelines of procedure were extended to provide the Appellant with ample time to file a Reply to the Petition. The Appellant was directed on February 17, 2023, to file a proper response to the Petition. - 6.5 The records indicate that the Appellant had the opportunity to testify during the trial in the lower court. The court granted the Appellant ample time to introduce any necessary witnesses or additional evidence to support her claims, particularly when it directed her to file a proper reply to the Petition. This directive provided her with more time and opportunity to strengthen her case, allowing for a thorough presentation of all relevant arguments and supporting materials. Despite this allowance, there is no record indicating that she attempted to call any additional witnesses or provide further evidence during that period.


6.6 Consequently, this court finds no basis on the Record to support her claim of an unfair trial, as she has not presented any substantive evidence on record suggesting procedural injustice or prejudice in the handling of her case at the lower court.

# **Ground 2: The learned trial Magistrate erred in law and fact when she left the issue of custody unresolved and erroneously ordered for the same to be handled by the country of Residence.**

- 6.7 On the issue of Custody, the Magistrate was faced with contradictory evidence presented by the parties. The Petitioner maintained that the South African Courts had already handled the issue of Custody while the Respondent denied the assertion. - 6.8 It was the learned Magistrate's decision that since both the Petitioner and the Respondent reside outside of Uganda, the enforcement of that order granted by the Ugandan Courts would require reciprocal enforcement arrangements with the government of South Africa. She therefore advised parties to seek custody and maintenance orders in their country of Residence. - 6.9 In reviewing the learned Magistrate's decision, this court finds sound legal and practical reasoning in advising the parties to seek custody and maintenance orders in their country of residence, South Africa. - Page **6** of **11** 6.10 In making its orders the court must consider their enforceability. The court would have to ensure that the judicial order issued within its jurisdiction would have a feasible pathway for recognition and execution in another jurisdiction in this case South Africa. In this case, both parties live outside of Uganda, and thus, any Ugandan court order pertaining to custody and maintenance would face significant jurisdictional limitations unless reciprocal enforcement mechanisms are actively in place between South Africa and Uganda. Without such an arrangement, the Ugandan court's order would lack the necessary force and effect abroad, rendering it impractical and potentially ineffective.

- 6.11 Furthermore,**Section 3 of the Children Act Cap 62** requires that the welfare of the child shall be of paramount consideration whenever the state, a court, a tribunal, a local authority or any person determines any question in respect to the upbringing of a child, the administration of a child's property, or the application of any income arising from that administration. - 6.12 In recognition of this principle and the nature of the matter, custody and maintenance are ongoing obligations that require consistent enforcement and often rely on the close supervision of family courts in the jurisdiction where the child and parents are physically present. - 6.13 By advising the parties to seek an order in South Africa, the lower court recognizes the importance of proximity and jurisdictional authority in family matters, where a court in the same jurisdiction as the parties can better monitor and adjust orders as circumstances evolve. South African courts, being in the same jurisdiction as the parties, would be in a stronger position to enforce, modify, or review the orders as needed over time, especially given the potential for changes in income, living situations, or other critical factors.


- 6.14 In addition, the decision of the Magistrate Grade 1 aligns with the doctrine of judicial comity, which supports mutual respect between nations' legal systems by encouraging parties to utilize the legal frameworks available within their own jurisdictions whenever feasible. By encouraging the parties to pursue their case in South Africa, the learned Magistrate's decision respects and upholds South African jurisdictional sovereignty, preventing any potential conflicts that could arise from an attempt to enforce Ugandan orders without reciprocal agreements. - 6.15 It is evident that securing an order directly from South African courts not only streamlines the enforcement process but also ensures that any necessary modifications can be addressed without cross-jurisdictional barriers. It is also in the best interests of the child as the supervision of the Custody order will be best enforced by authorities closest to the children. - 6.16 Therefore, the court finds that the Magistrate Grade 1's decision was well-founded and pragmatic, emphasizing both enforceability and the child's best interests.

# **Ground 3: The Learned Trial Magistrate erred in law and fact when she declined to award the Appellant a share in the properties situate at Arua Kuluva and Kiwatule Balintuma Zone.**

6.17 **Section 207 of the Magistrate Court's Act, Cap. 19** provides that the civil jurisdiction is limited to matters where the value of the subject matter does not exceed twenty (20) million Uganda shillings. From the above, it is judicial Notice that all the properties exceed both the pecuniary jurisdiction of the Chief Magistrate's Court and that of the Magistrate


Grade 1. The property above clearly exceeds the learned Magistrate's Jurisdiction.

- 6.18 The court therefore finds that the learned Magistrate Grade 1 erred in law when she made a decision regarding the parties' Matrimonial Property. Ground 3 therefore succeeds on the ground that the learned trial magistrate did have Jurisdiction. - 6.19 Matrimonial Property was defined in the case of **Charman v. Charman (No 4) [2007] EWCA Civil 503; [2007] 1 FLR 1246** to mean "property of the parties generated during the marriage otherwise than by external donation'. - 6.20 In **Essa v. Essa, Kenya Court of Appeal Civil Appeal No. 101 of 1995** it was held that there is no presumption that any or all property acquired during subsistence of the marriage must be treated as being jointly owned by the parties. It is therefore fully possible for the property rights of parties to the marriage to be kept entirely separate. Whether the spouses contributing to the purchase should be considered to be equal owners or in some other proportions must depend on the circumstances of each case.

#### **The land in Arua.**

- 6.21 The Respondent herein presented a Land Sale Agreement in the names of Obizu Agnes. He averred that the property was purchased by him along with his other family members. It is also a burial ground where the Respondent's brother is buried. The Appellant herein averred that there was no way the Respondents siblings could have purchased the property along with his family members or siblings. - 6.22 The Respondent presented a land purchase agreement dated April 11, 2011, listing Obizu Agnes as the buyer. For the


court to award a share in matrimonial property registered in one party's name, there must be clear proof of the other party's contribution, whether financial or non-financial, to the acquisition or development of the property. This proof often includes land sale agreements, payment receipts, or evidence of indirect contributions that facilitated property improvements.

6.23 In this case, however, the Appellant did not present sufficient evidence to demonstrate her contribution to the property. Without documentation or corroborating testimony showing her involvement in the purchase or maintenance, the court cannot classify the property as jointly owned. Consequently, the Appellant has no entitlement to the Arua Property.

#### **Kiwatule Balintuma Zone.**

- 6.24 In the case of the Balintuma Property, the Land Sale Agreements are also in the Respondent's name. They are dated 1st April 2009 and 6th February 2011. The parties were legally married on 15th November 2014 after the Respondent had bought the said property. - 6.25 Given that this property was purchased and developed before the marriage between the parties, and that the Appellant presented no evidence of monetary or non-monetary contribution. The court finds that it is the Respondent's property and the Appellant is not entitled to it.

## **The Trial Magistrate erred in law and fact when she held that the Appellant was not entitled to Alimony.**

6.26 On this issue, the learned trial Magistrate found that the Appellant prayed for Alimony but did not justify why an able bodied woman should be taken care of.


- 6.27 The learned trial Magistrate's finding regarding the Appellant's request for alimony is well-founded. The Appellant, being an able-bodied woman, has the capacity to support herself financially. In cases of alimony, it is essential for the requesting party to demonstrate a legitimate need for support, particularly when they possess the means to earn a livelihood. - 6.28 The absence of compelling justification for why she should be financially maintained undermines her claim for alimony, as the law generally favours self-sufficiency and encourages individuals to utilize their abilities to provide for themselves. The Appellant is not a child. She should be able to acquire gainful work and care for herself. Thus, the Magistrate's conclusion is consistent with the principles of fairness and personal responsibility in family law.

### **7.0 Conclusion.**

- 7.1 Accordingly, the court finds as follows. - 1. Grounds 1, 2 and 4 fail. - 2. The court finds that none of the suit property is Matrimonial property. - 3. The Appellant is not entitled to the property comprised at Arua Kuluva and Kiwatule Balintuma. - 4. No order as to costs.

*Dated, Signed and Delivered at Kampala this 28th day of October, 2024.*