Okoth v Bafirawala (Civil Appeal 13 of 2021) [2022] UGHCFD 24 (15 September 2022)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION) CIVIL APPEAL NO. 013 OF 2021**

| MARGARET MBUSA OKOTH ……………………………APPELLANT | | |-------------------------------------------|--| | VERSUS | | | ELISHA BAFIRAWALA RESPONDENT | |

## **BEFORE: HON. JUSTICE ALICE KOMUHANGI KHAUKHA**

## **JUDGMENT**

#### **Introduction**

This judgment is in respect of an appeal against the decision of Her Worship Namusobya Sarah Mutebi, Magistrate Grade One delivered on the 22nd day of August 2018 in Divorce Cause No. 17 of 2017. Ms Margaret Mbusa Okoth (hereinafter referred to as **"the appellant"**) being dissatisfied with the judgment lodged an appeal in this honorable court and prayed that: the appeal is allowed with costs; the judgment in Divorce Cause No. 17 of 2017 is reversed and set aside; the orders and decree issued against the appellant in Divorce Cause No. 17 of 2017 be set aside; and the Divorce Petition between the parties is handled by this honorable court and the properties redistributed in accordance with the provisions and principles of the law.

#### **Appearance and Representation**

At the hearing, the appellant was represented by Counsel Ndegwe Michael Emmanuel and of M/S Luzige, Lubega, Kavuma & Co. Advocates while the respondent was represented by Counsel Hajara Namwanga of M/S Isabirye & Co. Advocates. The appellant and the respondent, Elisha Bafirawala, were present too.

### **The Appeal**

The grounds of the appeal are contained in the Memorandum of Appeal and they are that:

- 1. the Learned Trial Magistrate erred in law when she entertained Divorce Cause No. 17 of 2017 with properties in contention worth above UGX 50,000,000 (Uganda Shillings Fifty Million) yet she had no pecuniary jurisdiction to handle the same; - 2. the Learned Trial Magistrate erred in law and fact when she proceeded with further hearing of Divorce Cause No. 17 of 2017 in the absence of the respondent and her lawyers contrary to the provisions and principles of the law; - 3. the Learned Trial Magistrate erred in law and fact when she granted a Decree Nisi dissolving the marriage, which was made absolute on the 19th day of June 2019, an Order for joint custody and maintenance of the children to both parties, an Order for distribution of properties; (respondent granted occupational rights to matrimonial home at Nalumunye as long as she remains unmarried and children to be registered on the Certificate of Title, 25 decimals of land Nalumunye to be retained by the respondent since it is what the petitioner requested, land at Namwezi Kitagobwa measuring 75 decimals which is farm land to go to the petitioner, two plots of land located at Kitagabwa measuring 75 decimals and 1 acre to remain for the petitioner), the respondent to deliver personal effects of the petitioner kept in the matrimonial home, respondent ordered to restrain from interfering with the petitioner's possession of distributed property and that each party bear their own costs without regard to the interest of the respondent and justice; and - 4. the Learned Trial Magistrate erred in law and fact when she failed to fairly, justly and properly evaluate the evidence on the record as a whole, thereby arriving at a wrong conclusion/ decision.

#### **Facts leading to the appeal**

Mr. Elisha Bafirawala (hereinafter referred to as **"the respondent"**) was the petitioner in Divorce Cause No. 17/2017 (hereinafter referred to as **"the suit"**). The suit was filed in the Chief Magistrates' Court of Makindye at Makindye for dissolution of marriage on the ground of cruelty, an order for custody of the children, an order for maintenance of the children, an equal distribution of the property set out in the petition, costs of the petition and any other reliefs as court may deem fit. The appellant (then respondent) filed an answer to the petition and a cross petition for judicial separation on grounds of adultery and cruelty.

The suit was then set down for hearing by court (hereinafter referred to as **"the trial court"**) which commenced on 28th September 2017. Both the petitioner and the respondent in the suit together with their respective lawyers attended the proceedings in the trial court. On 24th May 2018, the petitioner led his evidence in chief in the absence of the respondent but in the presence of the respondent's lawyer and the matter was adjourned to 31st May 2018 for cross examination of the petitioner. When the matter came up for hearing on 31st May 2018, court issued criminal summons upon the respondent to show cause why she should not be arrested having been asked by the trial court thrice to bring the Certificates of Title of the properties acquired during the parties' cohabitation but the respondent refused to comply with the same. The matter was then adjourned to 4th June 2018.

However, from the said date of 31st May 2018, neither the respondent (now appellant) nor her lawyer appeared in court again for the hearing. The petitioner (now respondent) then prayed for leave that the matter proceeds ex parte when it had come up for hearing on 3rd July 2018 because the respondent had rejected service of the Hearing Notice. Leave to proceed ex parte was granted by the trial court which further asked the petitioner to file written submissions by 10th July 2018. The matter was then adjourned to 17th August 2018 for delivery of judgment and on the said date, judgment was delivered in the presence of only the petitioner.

Upon learning about the judgment in the suit, the respondent filed Miscellaneous Application No. 245 of 2020 in the Chief Magistrates' Court of Makindye at Makindye seeking for an enlargement of time within which to appeal against the said judgment and for stay of execution of the orders granted in the said judgment. However, the said Miscellaneous Application was withdrawn on ground that it was wrongly filed in the Chief Magistrates' Court. The appellant instead filed Miscellaneous Application No. 160 of 2021 in the High Court, Family Division on the same grounds that were in Miscellaneous Application No. 245 of 2020.

Miscellaneous Application No. 160 of 2021 was determined on 19th October 2021 in favor of the appellant, making Orders, *inter alia*, staying the execution of the Orders made by the Trial Magistrate in Divorce Cause No. 17 of 2017 until the final disposal of the intended appeal. It is against this background that the appellant filed this appeal in this honorable court.

## **Resolution of the Grounds of Appeal**

I shall begin with grounds 3 and 4 that Counsel for the respondent objects to.

The duty of the 1st appellate court is to re-evaluate the evidence of the trial court as a whole and come to its own conclusion. However, the appellate court should be mindful of the fact that it didn't have the opportunity of physically observing the parties testify. [**See: Bogere Moses & Another versus Uganda SCCA No. 01 of 1997, Uganda versus George Willian Ssimbwa SCCA No. 03 of 1997, Kifamunte Henry versus Uganda SCCA No. 10 of 1997, Banco Arabe Espanol versus Bank of Uganda SCCA No. 08 of 1998**]

**Ground 3:** *The Learned Trial Magistrate erred in law and fact when she granted a Decree Nisi dissolving the marriage, which was made absolute on the 19th day of June 2019, an Order for joint custody and maintenance of the children to both parties, an Order for distribution of properties; (respondent granted occupational rights to matrimonial home at Nalumunye as long as she remains unmarried and children to be registered on the Certificate of Title, 25 decimals of land Nalumunye to be retained by the respondent since it is what the petitioner requested, land at Namwezi Kitagobwa measuring 75 decimals which is farm land to go to the petitioner, two plots of land located at Kitagabwa measuring 75 decimals and 1 acre to remain for the petitioner), the* *respondent to deliver personal effects of the petitioner kept in the matrimonial home, respondent ordered to restrain from interfering with the petitioner's possession of distributed property and that each party bear their own costs without regard to the interest of the respondent and justice.*

Counsel for the respondent submitted that ground 3 offended Order 43 Rule 1 (2) of the Civil Procedure Rules (hereinafter referred to as **"the CPR"**) which is couched in the same terms as Rule 86 (1) of the Judicature (Court of Appeal Rules) Directions. Relying on the case of **Nyakecho Annet versus Electoral commission & Ekanya Geoffrey, Election Petition Appeal No. 14 of 2021,** Counsel for the respondent invited this court to apply the principles laid down in the said Rules and the above case to strike out ground 3 of the Appellant's Memorandum of Appeal since it offends all known rules regarding framing of the grounds of appeal. That Ground 3 is incomprehensible and one cannot discern the nature of the complaint to the decision appealed against and the points which are alleged to have been wrongly decided. Counsel for the respondent contended that ground 3 is a wholesome reproduction of the orders of the learned trial Magistrate and that the appellant is taking this Court on a fishing expedition.

In reply, Counsel for the appellant submitted that the respondent's objection is misfounded, misapplied, misconstrued, and should be ignored by this court for lack of merit. That ground 3 for instance is plain, comprehensible and specific to the point that was wrongly decided by stating that Divorce Cause No. 17 of 2017 was decided without regard to the interests of the respondent and justice.

## **Court's consideration of ground 3**

Order 43 Rules 1(2) of the CPR provides that:

*"The memorandum of appeal shall set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from without any argument or narrative; and the grounds numbered consecutively."*

In the case of **Nyakecho Annet versus Electoral commission & Ekanya Geoffrey, Election Petition Appeal No. 14 of 2021** (cited by Counsel for the respondent), it was held that:

*"Proper drafting of the memorandum of appeal being a matter of law should be taken seriously...it is a mandatory requirement and could result into a ground being struck down."*

Having considered the above submissions and the said case, I find that ground 3 of the memorandum of appeal is indeed a mouthful and in clear contravention of Order 43 Rules 1(2) of the CPR. Ground 3 of the memorandum of appeal is not precise and/or concise. I agree with Counsel for the respondent that it was just a replica of the entire orders of the trial Magistrate. Ordinarily, this should have warranted the said ground of appeal to be struck out but in the interest of justice, I shall rephrase the said ground to read as: *"the Learned Trial Magistrate erred in law and fact when she issued the Orders in Divorce Cause No. 17 of 2017 without regard to the interests of the respondent and justice"* and the same shall be determined herein after. This is because, although ground 3 of the appeal is not properly drafted, it can still be understood to the extent that it seeks to specify the point that the trial Magistrate did not consider the appellant's interests and justice when she awarded the Orders in Divorce Cause No. 17 of 2017.

## **Ground 4:** *The Learned Trial Magistrate erred in law and fact when she failed to fairly, justly and properly evaluated the evidence on the record as a whole, thereby arriving at a wrong conclusion/ decision.*

It was Counsel for the respondent's prayer that court should strike out ground 4 of the Memorandum of Appeal because it is misconceived and untenable in the light of ground 2 of the same Memorandum of Appeal. That the ground is a general ground and a fishing expedition, intended to waste Court's time, an exercise of speculation, conjecture and a wrongful employment of the judicial process and therefore total abuse of Court process. Counsel for the respondent contended that the appellant in ground 2 of her Memorandum of Appeal seemed to argue that the trial court erred in law and in fact when it proceeded to hear and determine the case in her absence. According to Counsel for the respondent, it was inconceivable that the appellant still proceeded to frame ground 4 to the effect that the trial Magistrate failed in her duty to evaluate the evidence on record yet she was absent during the hearing of the case. Counsel for the respondent expressed her bemusement as to what and/or whose evidence the trial Magistrate erred in evaluating when the respondent's evidence was never recorded.

In response, Counsel for the appellant submitted that ground 4 was concise, without argument or narrative and specific to the point that was wrongly decided by stating that the trial Magistrate failed to fairly, justly and properly evaluate the evidence on the record as a whole, thereby arriving at a wrong conclusion/decision. Counsel for the appellant further submitted that the learned trial Magistrate had pleadings of both the petitioner and respondent/cross petitioner in Divorce Petition No. 17 of 2017. As such, the said pleadings ought to have been considered by the trial Magistrate in arriving at her decision since she did not expunge them from her record before ruling to proceed ex parte. That the trial Magistrate ought to have considered the facts contained in the applicant's pleadings before arriving at her decision but she instead only considered the evidence of the petitioner in examination in chief. Counsel for the appellant then prayed that this honorable court disregards the objections raised on ground 4 to the Memorandum of appeal.

## **Court's consideration of ground 4**

Having considered the evidence as a whole and the submissions of both Counsel, I find that the trial Magistrate fairly, justly and properly evaluated the evidence on record as a whole because of the following reasons:

Firstly, the respondent's evidence in chief was the only evidence on record of the trial court, the appellant having absconded to attend court after she was asked by the trial court to bring the documents pertaining to the properties that the parties had acquired during their cohabitation. In the case of *George Kiggundu versus Attorney General H. C. C. S No. 386 of 2014*, it was held that unchallenged or uncontroverted evidence will be deemed admitted and court can rely on the same. (*See also: Samwiri Mussa versus Rose Achen [1978] HCB 297 and Ayisa Nassuna & Anor versus Commissioner Land Registration High Court (Land Division) Miscellaneous Cause No. 07 of 2020)*. In the absence of any other evidence in rebuttal, the trial Magistrate was right to presume that all the facts as stated by the petitioner (now respondent) in his evidence in chief were accepted by the respondent (now appellant) since she did not give any evidence to the contrary.

Secondly, the appellant's lawyer was in court on 24th May 2018 when the respondent led his evidence in chief and the matter was adjourned to 31st May 2018 for cross examination of the respondent. When the matter came up for hearing on 31st May 2018, the appellant and her lawyer were both in court as per the record of the trial court. As such, both the appellant and her lawyer knew of the next hearing date but chose to abscond court hearings thereafter, without furnishing any reason to the trial court. Thus, I do not agree with the appellant's submissions that she was never informed of the next hearing date. I find that the appellant's act of not attending court when the matter came up for hearing on the subsequent dates was a willful act on her part. I find the appellant's explanation of not being effectively served by the respondent with hearing notices of the next hearing date a mere excuse because she was in court when the matter was adjourned as per the trial court's record of proceedings.

Thirdly, I would also like to disagree with Counsel for the appellant's submissions that since the learned trial Magistrate had pleadings of both the petitioner and respondent/cross petitioner in Divorce Petition No. 17 of 2017, then she ought to have considered the said pleadings in arriving at her decision. That this was because the trial Magistrate did not expunge the said pleadings from her record before ruling to proceed ex parte and to write her judgment based on only the petitioner's examination in chief in the said suit. It should be noted that what is evaluated by court is the evidence given by the parties and/or their

witnesses and not the pleadings filed on court's record alone. Otherwise, if that were the case, then there would be no need for courts to fix matters to take on evidence. The pleadings filed on the courts' record especially if that court is of first instance must be proved by the parties. The testimonies of the parties must be given either orally or by way of witness statements and that is the evidence that is evaluated by the judicial officer. In the instance case, the appellant neglected and/or refused to bring evidence to validate the claims in her pleadings which the trial court should have relied upon before making a decision in the said suit.

Fourthly and connected to the above, the pleadings filed by the appellant in the trial court to wit the answer to the petition and the cross petition for judicial separation contained averments that required to be proved in court. For example, in her cross petition for judicial separation, the appellant's grounds were adultery and cruelty. The appellant needed to testify to this effect and/or bring witnesses that could support her claim but she did not. The facts contained in the appellant's pleadings therefore remained unproved and the same could not be relied upon by the trial Magistrate to determine the suit. In the premises, the trial Magistrate was left with no choice but to use the only evidence that she had on her record which was the petitioner's evidence in chief.

Therefore, in agreement with Counsel for the respondent, I find that the trial Magistrate rightly evaluated the only evidence that was on her record thereby arriving at the right conclusion. It wouldn't be fair, just and in the interest of justice if the trial Magistrate had evaluated unproved averment's set out in the appellant's pleadings. As such the objection raised by Counsel for the respondent on ground 4 of the Memorandum of Appeal is upheld.

**Ground 1:** *The Learned Trial Magistrate erred in law when she entertained Divorce Cause No. 17 of 2017 with properties in contention worth above UGX 50,000,000 (Uganda Shillings Fifty Million) yet she had no pecuniary jurisdiction to handle the same.* Counsel for the appellant relying on section 3 (1) and (2) of the Divorce Act, sections 4 and 12 of the Civil Procedure Act, Cap. 71, section 207 (1) (b) of the Magistrates Courts Act, 2007 and the cases of *Fredrick Kato versus Ann Njoki Divorce Cause No. 10 of 2007*, *Tumukwasibwe Broad & 2 Others versus Tumukwasibwe Evas Revision Cause No. 002 of 2022* and *Desai versus Warsaw [1967] EA 351* submitted that the trial court did not have jurisdiction to handle Divorce Cause No. 17 of 2017 because the matrimonial assets in contention exceeded the upper limit of the pecuniary jurisdiction of the Magistrates Court. Counsel for the appellant further submitted that jurisdiction of court is a creature of statute and if proceedings are conducted by a court without jurisdiction, they are a nullity.

In response to the appellant's submissions, Counsel for the respondent submitted that the appellant misapplied the said sections of the law and the authorities cited are only persuasive and this court is not bound by these cases. That in the absence of any amendment to section 3 of the Divorce Act, the same still takes precedence in as far as jurisdiction for dissolution of marriages among Africans is concerned. Counsel for the respondent further submitted that the language of section 3 of the Divorce Act is plain and in his opinion if the same is interpreted as per the authorities cited by Counsel for the appellant, it would invite a flood gate of all divorce cases at the door step of the High Court with the potential cause of increasing levels of case backlog. She also contended that the issue to be determined by court was whether the then petitioner had disclosed grounds for dissolution of the marriage and not the determination of the properties acquired by the parties to the marriage. That the central issue that cloths the court with jurisdiction is the fact that all parties to Divorce Cause No. 17 of 2017 are Africans.

Counsel for the appellant in rejoinder reiterated and maintained his earlier submissions and added that the use of precedents is one of the sources of law in Uganda that was developed to ensure consistency in quality and uniformity in the judicial process. That for an opinion to have weight of a precedent, it must be established that the decision was an opinion given by a judge of a court of record and it must be an opinion, the formation of which is necessary for the decision of a particular case.

#### **Court's consideration of ground 1**

I have considered the submissions of both Counsel and the sections of the law together with the cases they relied upon in the said submissions and it is my finding that the trial court had jurisdiction to handle the said matter for the following reasons:

Section 3 (1) of the Divorce Act, Cap. 249 provides that where all parties to a proceeding under this Act are Africans…jurisdiction may be exercised by a court over which presides a Magistrate Grade 1 or a Chief Magistrate. Section 3 (2) thereof provides that in all other cases jurisdiction shall be exercised by the High Court. In the instant case, both parties to Divorce Cause No. 17 of 2017 were Africans and the petitioner had the option of lodging the said suit in the Magistrates' Court according to the above cited section of the law. This would also mean that the trial Magistrate had the jurisdiction to hear the said matter.

Also, I find the appellant's contention as to the jurisdiction of the trial court an afterthought. It should be noted that the appellant too filed a cross petition for judicial separation in the same Magistrates' Court as Divorce Cause No. 17 of 2017 was filed. This act shows that the appellant knew that the said Magistrates' Court had the jurisdiction to handle the matter. Otherwise, she should have raised it as a preliminary objection either in her pleadings or at the start of the hearing in the trial court but she instead brings up the issue of jurisdiction way later when the matter has been determined. The appellant was always legally represented at all levels of this suit and I believe that her lawyer would have pointed out the issue of jurisdiction from the beginning of this matter had they thought that the trial court and/or Magistrate did not have it.

Besides, I find that Counsel for the appellant has misapplied the authorities he cited especially the ones of *Fredrick Kato versus Ann Njoki Divorce Cause No. 10 of 2007* and

*Tumukwasibwe Broad & 2 Others versus Tumukwasibwe Evas Revision Cause No. 002 of 2022*. I appreciate the fact that Counsel understands the doctrine of the law on precedents and its importance. However, it should be noted that not all precedents are binding. The High Court is only bound by precedents of the higher courts, that is to say the Court of Appeal and the Supreme Court and not necessarily its own precedents. Whereas I am an advocate of consistency and uniformity in the judicial process, I also believe that this consistency and uniformity should not be at the expense of justice and fairness while deciding matters. In the circumstances, I find it would be just for me to depart from the said precedents. This is because the learned Judges in those matters also note that the law in section 3 of the Divorce Act on jurisdiction of the Magistrates' courts in handling the said matters has not been amended. As such, their decisions are not a hard and fast rule but are merely opinions that could guide the public and/or litigants. The opinions in these judgments do not however take away a litigant's right to file a Divorce Petition in the Magistrates' Courts as long as they fit into the criteria provided for in section 3 (1) of the Divorce Act, which is that both parties to the dissolution of the marriage are Africans.

In connection to the above and as rightly stated by the learned judge in the case of *Fredrick Kato versus Ann Njoki Divorce Cause No. 10 of 2007*, that although the High Court is vested with unlimited jurisdiction to handle Divorce Petitions even where both parties are Africans, there is need for rational distribution of business in courts so as not to overwhelm one section of the court system…and to ensure that the largest number of people have access to courts that are closer to the population. It would indeed be unwise to conclude that all divorce cases which have property that exceeds the pecuniary jurisdiction of the Magistrates' courts must now be filed in the High court.<sup>1</sup> The High Court is chocking with backlog and I must admit that we need the help of the lower courts to handle such matters given the fact that the law still vests jurisdiction upon them like in these circumstances. I agree with Counsel for the respondent that if we took a strict interpretation of the above

<sup>1</sup> HCT-00-FD-DC-0010-2007, Fredrick Kato Versus Ann Njoki at page 3 paragraph 19.

precedents, then we would open a flood gate of all divorce cases at the door step of the High Court, Family Division thereby enhancing the case backlog challenge and denying the litigants a right to a speedy hearing.

In addition to the above and in agreement with Counsel for the respondent, it should be noted that the gist of Divorce No. 17 of 2017 was dissolution of the marriage between the respondent and the appellant and not for determination of the properties acquired by the parties in their marriage. The distribution of the property was a consequence of the dissolution of the marriage and not the primary reason for filing the said suit. As such the issue of pecuniary jurisdiction does not apply in these circumstances to determine who and which court should have heard the matter. The yard stick to be used in determining jurisdiction is whether both parties to the suit are Africans. As already stated, the respondent still had the choice to file Divorce Petition No. 17 of 2017 in the Magistrates' court given the fact that him and the appellant are both Ugandans.

Therefore, for the reasons stated above, ground 1 of this appeal hereby fails. The trial court and subsequently the trial Magistrate had the jurisdiction to handle Divorce Cause No. 17 of 2017.

## **Ground 2:** *The Learned Trial Magistrate erred in law and fact when she proceeded with further hearing of Divorce Cause No. 17 of 2017 in the absence of the respondent and her lawyers contrary to the provisions and principles of the law.*

Counsel for the appellant submitted that the appellant was never served with hearing notices for further hearing of the case or any subsequent hearings but was only shocked to be served with letters for contempt of court orders on 13th November 2019 which she was not aware of. Relying on Order 5 Rule 16 CPR and the cases of *Jude Mbabali versus Edward Kiwanuka Ssekandi (2006), M. Kanimba versus S. Patel [1973] HCB 185* and *Ouna Otwani versus Bukenya Salongo [1967] HCB 62*, counsel for the appellant further submitted that the respondent's alleged service of hearing notices upon the appellant was false, defective, inadequate, unfair, inequitable, unlawful or otherwise unreliable as a base to proceed ex parte against anyone.

In reply, Counsel for the responded contended that the absence of the appellant before the trial court was calculatedly authored by her conduct when she intentionally refused to hand over the land titles in her custody to demonstrate her total lack of respect to the sanctity of court Orders. Counsel for the respondent citing the case of *Justus Kyabahwa versus China Henan International Cooperation Group Company Limited Civil Suit No. 721 of 2020* that relied on the case of *Amrit Goyal versus Harichand Goyal & 3 Others Civil Application No. 109 of 2004*, further invited court to look at the record of proceedings of the trial Court to ascertain that the appellant's absence in the trial court was because of her defiance and disrespect for the court Orders.

In rejoinder, Counsel for the appellant submitted that the trial court premised its decision to proceed ex parte on a defective affidavit of service that alluded to have served the appellant with hearing notices for the next court hearing. That the appellant wanted to prosecute her case and this is evidenced by her filing in court all the necessary pleadings in response to Divorce Cause No. 17 of 2017 and a cross petition, the earlier attendance of the appellant and instructing a lawyer to act for her in the suit.

#### **Court's consideration of ground 2**

Having considered the submissions of both Counsel and having read the entire record of proceedings of the trial court with all the documents contained in the Memorandum of Appeal and like I had earlier stated in resolution of the 4th ground, I find that the trial Magistrate rightly proceeded in hearing Divorce Cause No. 17 of 2017 in the absence of the appellant and her lawyer. This is because, the appellant's lawyer was in court on 24th May 2018 when the respondent led his evidence in chief and the matter was adjourned to 31st May 2018 for cross examination of the respondent. When the matter came up for hearing on 31st May 2018, the appellant and her lawyer were both in court as per the record of the trial court. As such, both the appellant and her lawyer knew of the next hearing date but chose to abscond court hearings thereafter without furnishing any reason to the trial court. Thus, I do not agree with the appellant's submissions that she was never informed of the next hearing date.

It is also my finding that the appellant's act of not attending court when the matter came up for hearing on the subsequent dates was willful on her part. I also find the appellant's explanation of not being effectively served by the respondent with hearing notices of the next hearing date a mere excuse because she was in court when the matter was adjourned as per the trial court's record of proceedings.

Also, I do not believe that the trial Magistrate proceeded ex parte based only on the Affidavit of service of the then petitioner as Counsel for the appellant seems to suggest. The trial Magistrate had had the opportunity of observing the behavior of the appellant in not complying with court directives. It isn't surprising that the appellant stopped coming to court after the trial Magistrate had issued her with a Notice to show cause why criminal summons should not be issued and as to why she should not be arrested and committed for contempt of court on 31st May 2018. It is also of no wonder that the trial Magistrate issued the appellant with a warrant of arrest when she failed to attend court on 5th June 2018 after she had failed to deposit the Certificates of Title for the properties acquired during the subsistence of their marriages that were in her possession and she too had not furnished court with any reason as to why the said warrant of arrest for contempt of court Orders should not be issued.

More so, if the appellant was really interested in the matter as she claims through the submissions of her lawyer and having filed all the pleadings in the trial court especially a cross petition to Divorce Cause No. 17 of 2017, I believe the appellant should have followed up with court on the hearing dates since this was her matter too. Counsel for the appellant claims that the appellant went ahead to hire a lawyer to represent her in the said suit which shows how interested the appellant was in this matter. However, I am left to wonder why this lawyer never followed up on his/her client's matter. It is inconceivable that both the appellant and her lawyer thought that the matter had ceased to exist just like that. Until the 13th day of November 2019 when the appellant claims to have received a warrant of arrest for contempt of court and/or the judgment in Divorce Cause No. 17 of 2017, what did she think had happened to the matter? I expect that she should have at least followed up on her own cross petition for judicial separation that she had filed in the same trial court. However, nothing of the sort was done. Had she followed up her own cross petition, may be should would have got an update on what was transpiring at the time with the entire suit. I therefore find that the appellant was negligent in prosecuting this matter and she is therefore estopped from playing the blame game. If anyone should be blamed for the way the suit was adjudicated, it should be the appellant.

Given the workload in the courts and the need for expeditious case disposal, the decision to proceed with the trial *ex-part*e was the most appropriate, right and just in the circumstances of a case like this one where one party to a suit willfully, deliberately and intentionally refuses to attend court as and when he/ she is required. As already stated, I hereby emphasize that the trial Magistrate rightly proceeded with further hearing of Divorce Cause No. 17 of 2017 in the absence of the appellant. Therefore, ground 2 of the Appeal hereby fails too.

# **Ground 3:** *The Learned Trial Magistrate erred in law and fact when she issued the Orders in Divorce Cause No. 17 of 2017 without regard to the interests of the respondent and justice.*

Having found that the trial Magistrate had jurisdiction to handle Divorce Cause No. 17 of 2017, that the same was rightly decided in absence of the appellant and that the evidence in the said suit was fairly, justly and properly evaluated by the trial Magistrate, I hereby also find that she rightly issued the Orders in Divorce Cause No. 17 of 2017 with regard to the interests of the appellant and justice. Ground 3 of the Memorandum of Appeal hereby fails.

In light of the above findings, this appeal fails and the following Orders are hereby made:

- 1. Civil Appeal No. 013 of 2021 is hereby dismissed; - 2. The judgment and/or decision and Orders/ Decree issued by the trial Magistrate, Her Worship Namusobya Sarah Mutebi in Divorce Cause No. 17 of 2017 are upheld; - 3. Without prejudice to the above, the stay of execution issued in Miscellaneous Application No. 160 of 2021 is vacated. The respondent is allowed to continue with the execution of the Orders/Decree in Divorce Cause No. 17 of 2017; and - 4. Each party shall bear its own costs.

I so order.

### **Dated at Kampala this 15th day of September 2022.**

……………………………

Alice Komuhangi Khaukha

### **JUDGE**

15/09/2022.