Thasi v Musumba (Civil Appeal 37 of 2023) [2024] UGHC 713 (12 July 2024)

# **THE REPUBLIC OF UGANDA, IN THE HIGH COURT OF UGANDA AT FORT PORTAL CIVIL APPEAL NO. 037 OF 2023 (ARISING FROM DIVORCE CAUSE NO. 001 OF 2023 AT BUNDIBUGYO)**

**THASI JOY ::::::::::::::::::::::::::::: APPELLANT**

#### **VERSUS**

**MUSUMBA NKAYARWA JOSEPH :::::::::::::::::::::: RESPONDENT**

### **BEFORE HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **JUDGMENT**

This is an appeal against the judgment and decree of H/W Basaija Steven, the Magistrate Grade 1 of the Chief Magistrate's Court of Bundibugyo at Bundibugyo delivered on the 1st of November 2023 wherein, upon dissolution of marriage between the parties, he ordered the appellant to give vacant possession of the property located in Kisenyi Cell in Bundibigyo Town Council to the respondent. Being dissatisfied with the part of the said judgement and decree of the court, the appellant filed this appeal.

#### **Background**

The respondent filed Divorce Cause No. 001 of 2023 against the appellant before the Chief Magistrate's Court of Bundibugyo at Bundibugyo seeking for dissolution of their marriage, alimony and general damages. The respondent case is that the parties herein contracted customary marriage in the year 1990 and established their matrimonial home in Mukudungu Village, Bugomba Parish, Busaru sub-county in Bundibugyo district. Throughout their marriage, the parties were blessed with five issues. During the substance of their marriage, the respondent also acquired a plot of land in Kisenyi Cell in Bundibugyo Town Council in 2001 and built commercial houses thereon. However, from around the year 2000, the appellant became hostile and cruel to the respondent which prompted the respondent to file for divorce.

In her response to the divorce petition, the appellant denied part of the claims by the defendant but cross-petitioned for the dissolution of the marriage, distribution of matrimonial property and costs of the petition.

The parties mutually agreed to the dissolution of marriage and the trial court issued a decree nisi. On the distribution of property, the learned trial magistrate established that the land at Mukundungu Village was the parties' matrimonial home and ordered its equal distribution with the appellant taking the part on which their matrimonial house sits. The learned trial magistrate found that the property Kisenyi Cell in Bundibugyo Town Council is not matrimonial property and ordered the appellant to give the respondent vacant possession of the same. The respondent was also ordered to pay alimony to the appellant of UGX. 3,000,000/= to enable her to resettle.

Being dissatisfied with part of the decision of the trial magistrate, the appellant appealed to this court on the following grounds:

- 1. The learned trial Magistrate erred in law and fact when he held that the appellant is not entitled to a share of the property in Kisenyi, Bundibugyo Town Council in Bundibugyo district. - 2. The trial Magistrate erred in law and fact when he granted the respondent the reliefs not prayed for. - 3. The learned trial magistrate erred in law and fact when he failed to apply the principles of sharing matrimonial property to the property in Kisenyi in Bundibugyo Town Council.

4. The trial magistrate erred in law and fact when he awarded less alimony to the appellant.

## **Representation and Hearing**

Mr. Wahinda Enock represented the appellant whereas Mr. Mishele Geoffrey represented the respondent. The hearing proceeded by way of written submissions. Only counsel for the respondent filed written submissions which I have considered in this judgement.

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

This being a first appeal, this court is under a duty to reappraise the evidence, subject it to exhaustive scrutiny and draw its own inferences of fact, to reach its independent conclusion as to whether the decision of the trial court can be sustained. This duty is well explained in the case of *Father Nanensio Begumisa and three others Vs. Eric Tiberaga SCCA 17of 2000* where court held thus:

*"It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law. Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions***."**

It is not the function of a first appellate court to merely scrutinize the evidence to see if there is some evidence to support the lower court's finding and conclusion; it must make its own findings and draw its own conclusions. Only then can it decide whether the trial court's findings should be supported. In doing so, court should make allowance for the fact

that the trial court has had the advantage of hearing and seeing the witnesses *(see: Peters Vs. Sunday Post [1958] E. A 424).*

Against this background, I now re-evaluate the evidence presented at trial against the appellant's grounds of appeal.

# **Consideration by Court**

In this appeal, I will handle grounds 1 and 3 concurrently since they both relate what amounts to matrimonial property and the principles applicable to its distribution. I will then handle grounds 2 and 4 separately.

## **Grounds 1 and 3**

In arguing ground 1 Counsel for the respondent submitted that there is cogent evidence on record to show that the appellant herein did not contribute to the acquisition of the property in Kisenyi cell in Bundibugyo Town Council and therefore she was not entitled to a share thereof. Counsel for the respondent submitted that at the trial, the respondent, who testified as PW1, told the court that he bought the disputed property as a sole buyer as per Pexh 1, a sales agreement. Counsel argued that this evidence was corroborated by DW2, Samwiri Rwatoro who sold the plot to the respondent and PW5 Mugenyi Joseph who was present when the respondent bought the suit land.

Counsel argued that while the appellant, who testified as DW1, stated that she had contributed UGX. 500,000/= towards the purchase of the disputed property, there was no proof of her contribution on record.

Counsel for the respondent also argued that in his analysis of evidence, the learned trial magistrate had taken into consideration the fact that the respondent purchased the plot of land alone, the appellant forcefully stayed on the land and has been collecting rent income therefrom not for family needs but for her own needs; the appellant had fraudulently mortgaged the disputed property to Post Bank without the respondent's consent; the respondent was in possession of the original purchase agreement; and respondent had redeemed the disputed property from being sold by the bank using his own money.

On ground 3, counsel for the applicant argued that the trial magistrate properly applied the principles of sharing the matrimonial property as espoused in the case of *Julius Rwabinumi Vs. Hope Bahimbisomwe SCCA No. 10 of 2009*. Counsel argued that the trial magistrate properly held that the entitlement of a spouse to any property is tagged to his or her contribution towards the property and in the instant case, the appellant had not proved that she contributed to the acquisition of the disputed property.

# **Court's Consideration of Grounds 1 and 3**

To my understanding, in grounds 1 and 3 of this appeal, the appellant faults the decision of the learned trial magistrate to hold that the property in Kisenyi cell in Bundibugyo Town Council is not matrimonial property and that the appellant is not entitled to a share.

In resolving grounds 1 and 3 of this appeal, I will address two questions: (i) whether the disputed property is matrimonial property or whether the appellant contributed to its acquisition and/or development, and (ii) if so, whether she is entitled to a share.

In the case of *Julius Rwabinumi Vs. Hope Bahimbisomwe (supra)* Dr. Kisaakye, JSC, quoting Bbosa J, in *Muwanga Vs. Kintu High Court Divorce Appeal No. 135 of 1997***,** held that:

> *"Matrimonial property is understood differently by different people. There is always property which the couple choose to call home. There may be property which may be*

*acquired separately by each spouse before or after marriage. Then there is property which a husband may hold in trust for the clan. Each of these should in my view be considered differently. The property to which each spouse should be entitled is that property which the parties choose to call home and which they jointly contribute…"*

Dr. Kisaakye, JSC, went on to state that:

*"In my view, the Constitution of Uganda (1995), while recognizing the right to equality of men and women in marriage and at its dissolution, also reserved the constitutional right of individuals, be they married or not, to own property either individually or in association with others under Article 26(1) of the Constitution of Uganda (1995). This means that, even in the context of marriage, the right to own property individually is preserved by our Constitution as is the right of an individual to own property in association with others, who may include a spouse, children, siblings or even business partners. If indeed the framers of our Constitution had wanted to take away the right of married persons to own separate property in their individual names, they would have explicitly stated so.*

In the case of *Uhiriwe Peace Vs. Kuuku Kagwa Paul & 2 Others Divorce Cause NO. 118 of 2017* quoting the case of *Ayiko Mawa Solomon versus Lekuru Annet Ayiko High Court Divorce Cause No. 0001 of 2015* court held that:

*"Where the disputed property is not so registered in the joint names of the spouses but is registered in the name of one spouse, the beneficial share of each spouse would ultimately depend on their proven respective proportions of financial contributions either direct or indirect towards the acquisition of the property."*

From the foregoing authorities, the following observations can be made: (i) a spouse may acquire property individually and exclusively of the other spouse, (ii) a spouse is entitled to a share of the property that both choose to call home or to which he or she has contributed to its acquisition, (iii) in cases where the property is in the sole names of one of the spouse, then courts are expected to look out for the contribution of the other spouse in the acquisition of the property in dispute, and (iv) contribution may be monitory or non-monetary, direct or indirect *(Also see: Uhiriwe Peace Vs. Kuuku Kagwa Paul & 2 Others (supra)).*

In the instant case, the evidence on record shows that the respondent, a teacher by profession, bought the disputed property from Rwatoro Sam on the 24th of March 2003. a sales agreement was admitted in evidence as Pexh 2. Pexh2 shows that the respondent is the sole buyer of the disputed property. It is the respondent's case that the appellant did not contribute to its acquisition and development. The respondent further testified that upon acquisition of the property, he put up a commercial structure with rental rooms currently occupied by tenants. The respondent also testified that he currently stays with some of the children at their matrimonial home in Mukudungu which sits on about 4 acres of land with a cocoa plantation.

The respondent also testified that the appellant deserted her for over 23 years and throughout that period, she denied him his conjugal rights. The respondent further testified that the appellant in the year 2016

fraudulently mortgaged the disputed property in the Post Bank without his knowledge but he later redeemed it using his own money. The respondent also testified that from inception, the appellant forcefully stayed on the disputed property amidst his protests after she had deserted their matrimonial home. The evidence of sole acquisition of the disputed property by the respondent was corroborated by PW 5, Mugenyi Joseph who witnessed the sales agreement.

On the other hand, the appellant, who testified as DW1, told the court she contributed UGX. 500,000/=, which she got from her parents, for the acquisition of the disputed property, and she started staying on the same property with the appellant during the ADF attack. However, during crossexamination, she stated that she had no evidence of contribution. She also told the court that she was not mentioned in the Pexh 2 because, at the time of the acquisition of the disputed property, she had gone to the hospital to give birth.

However, DW2, Samwiri Rwatoro, the original owner of the disputed property, told the court that he sold it to both parties and that the appellant was present when the respondent purchased the disputed property. This, however, contradicts the appellant's testimony that she was not present at the time of the purchase of the disputed property.

DW2 also contradicted himself when he stated that the appellant was not there at the time of payment and signing the sales agreement and was not sure if the appellant had contributed to the payment of the disputed property.

Equally, although DW3, Kabasomi Mary told the court that the parties are owners of the disputed property, during cross-examination she told the court that she did not know whether the respondent had bought the property for the appellant.

DW5, Mathe Jusi, told the court that the appellant approached her parents who gave her a piece of land that she sold at UGX. 300,000/= and she used the money to buy land at Mukundugu village, Busaru subcounty and started living on the land and cultivating it.

From the evidence on record, it is clear that the parties chose the property in Mukundungu village as their matrimonial home. It was the testimony of the respondent, who testified as PW1, that he currently stays on that property at Mukundungu with some of the children. There is evidence on record that the parties temporarily left their home in Mukundungu and rented a house in Bundibugyo Town Council awaiting the completion of their matrimonial home. It is also clear that the marital issues between the parties started about 23 years ago, and from the inception, the respondent protested the appellant's occupation of the disputed property. It was also the respondent's evidence that the appellant fraudulently mortgaged the disputed property to Post Bank and the respondent painfully redeemed it from sale using his own money.

In his judgement, the learned trial magistrate observed that:

*"With respect to the plot and rental house in Kisenyi in Bundibugyo Town Council, the evidence of the respondent is varying. This plot was bought by the petitioner in 2001…. It is true that the petitioner stated that he stays on the plot with the respondent. However, the circumstances of the occupation of this land are also not clear. DW4 stated that the parties moved to occupy the land when there was rebel insurgence around the area where the parties' home in Mukudungu was. The petitioner stated that the respondent forcefully occupied the plot after deserting him thereby denying him conjugal rights. That she went ahead and forcibly collected rent from the tenants."* I find that the disputed property is a commercial property with tenants occupying it. From the evidence on record, it is clear that it was never the intention of the respondent to develop the disputed property into a matrimonial home.

Therefore, upon carefully re-evaluating the evidence on record, it is this court's finding the disputed property is not matrimonial property.

As regards the appellant's contribution towards the acquisition of the disputed property, the appellant did not discharge her evidential burden to prove her contribution. Firstly, Pexh 2, the sales agreement shows that the appellant is the sole buyer of the property. Secondly, while the appellant states that she contributed UGX. 500,000/=, as money she got from her parents, she did not provide proof to that effect. This evidence was equally contradicted by DW4 who stated that he only knew of UGX. 300,000/= that the appellant got from her parents, which was, moreover, used towards the acquisition of the property in Mukundungu village and not the disputed one.

Less weight would be attached to the testimony of DW2, as he was selfcontradicting. He told the court that both parties herein bought the disputed property from him but fell short of giving a convincing explanation as to why the appellant is neither mentioned in the agreement as a joint buyer nor why she was absent at the time of purchase.

On the issue of contribution, the learned trial magistrate Grade 1 observed that:

> *"The respondent stated that she contributed UGX. 500,000/= to the acquisition of this plot, an allegation the petition refutes. She was not present when the plot was being bought. She stated that she had gone to give birth to their child Kabuwo innocent. It was*

*stated by the petitioner that the said Kabuwo innocent is 23 years of age. If this were found to be true, it would mean that he was born around the year 2000 and not 2001 when the plot was bought…*

*From the evidence on record, I find it hard to conclude that the respondent contributed to the plot and house in Kisenyi. The fact that she stayed on the land for a long time under disputed circumstances is not sufficient contribution."*

I agree with the position taken by the learned trial magistrate. Indeed, as per the record, the appellant did not adduce evidence to prove her monetary contribution to both the acquisition and development of the property.

In *Kagga Vs. Kagga High Court Divorce Cause, No. 11 of 2005,* the court observed that:

> *"Our Courts have established a principle which recognizes each spouse's contribution to the acquisition of property and this contribution may be direct, where the contribution is monetary or indirect where a spouse offers domestic services. …When distributing the property of a divorced couple, it is immaterial that one of the spouses was not as financially endowed as the other as this case clearly showed that while the first Respondent was the financial muscle behind all the wealth they acquired, the contribution of the Petitioner is no less important than that made by the Respondent."*

This principle in *Kagga Vs. Kagga (supra)* is applied in cases where there is evidence that a spouse has made an indirect contribution. For instance, a housewife who took care of the home and did housewife duties such as cooking, cleaning, performed her conjugal duties, etc., which enable the husband to concentrate on his income-generating activities *(see: George*

#### *Okutho Vs. Jennifer Angom Civil Appeal No. 0013 Of 2022).*

In the instant case, there is evidence that the appellant deserted her matrimonial home 23 years ago, and throughout that period, the parties' relationship was characterized by cruelty, no enjoyment of conjugal rights, and sometimes death threats. The appellant did not lead any evidence that she performed any of the known housewife duties to prove her indirect contribution to the development of the disputed property. What is on record is that throughout that time, the appellant was engaged in the business of selling second-hand clothes.

Upon re-examination of the evidence on record, it would be mere conjecture for this court to conclude that the appellant made an indirect contribution to the acquisition and development of the disputed property.

It is therefore this court's finding that the appellant, on balance of probability, did not discharge her evidential burden of proof that she contributed to the acquisition and/or development of the disputed property. Even if there was such proof of contribution, then that contribution would, at the very maximum, be apportioned to the parties' matrimonial home in Mukundugu village and not on the disputed property.

As regards to principles of sharing property upon dissolution of marriage, the authorities cited herein are to the effect that a spouse is either entitled to a share in the matrimonial property or that property that he or she contributed to or that that is jointly owned. In the instant case, the property in dispute does not fall in either of the categories envisaged by the courts.

Therefore, I find that the learned trial magistrate ably applied the principles of sharing matrimonial property. Equally, I find no fault in the trial court's finding that the appellant is not entitled to a share in the disputed property for the reason given above.

Resultantly, I find grounds 1 and 3 are answered in negative and they must fail.

# **Ground 2: The trial Magistrate erred in law and fact when he granted the respondent the reliefs not prayed for.**

Counsel for the appellant did not file written submissions to show this court which reliefs were granted to the respondent that had not been prayed for.

In arguing ground 2, counsel for the respondent submitted that the appellant did not show which reliefs were granted to the respondent herein un prayed for and whether the court made a fatal error in granting those reliefs.

### **Court's Consideration of Ground 2**

I note that in his judgement, the learned trial magistrate ordered that the land and developments in Kisenyi cell, Bundibugyo Central Ward in Bundibugyo Town Council shall be retained by the respondent and the appellant was directed to give vacant possession of the same property to the respondent.

In his petition, the petitioner/respondent herein prayed for any other remedy, relief, and order deemed fit in the circumstances, while the cross petitioner/appellant herein prayed for among others, an order for the matrimonial properties to be shared equally between the parties. There is no specific prayer for the respondent to retain the disputed property or for the appellant to give vacant possession of the same.

In the case of *Sinba (K) Ltd and 4 Others Vs. Uganda Broadcasting Corporation SCCA NO. 003 of 2014,* Arach-Amoko, JSC, as she was then, quoting with approval the case of *Odd Jobs Vs. Mubia [1970] EA 476*, held thus:

> *"A court can decide an un-pleaded matter if the parties have led evidence and addressed the court on the matter in order to arrive at a correct decision in the case and to finally determine the controversy between the parties.*

In that case, the Supreme Court upheld the order of the Court of Appeal on the cancellation of the 5th Appellant's certificate of title, despite having not been prayed for since the evidence before the court had disclosed that the whole transaction leading to the sale of the property to the 5th Appellant was based on an illegal consent judgment. The Supreme Court observed that the Court of Appeal was obliged to make that order, after establishing that fact the transaction in issue was null and void.

In the instant case, evidence was led to the effect that the disputed property is not a matrimonial property, but the respondent is the sole owner of it and the marriage between the parties had been dissolved. Based on that finding, the learned trial magistrate would not have left the matter hanging.

It follows, therefore, that, even though there was no specific prayer for the respondent to retain the disputed property or for the appellant to give vacant possession of the same, since the evidence before the court had disclosed that the respondent is the sole owner of the disputed property, the appellant had forcefully occupied part of it, and their marriage had been dissolved, the trial court was obliged to make that order after establishing that fact. This is in line with the authority in *Sinba (K) Ltd and 4 Others Vs. Uganda Broadcasting Corporation (supra).*

In the premises, ground 2 is found in negative and must fail.

## **Ground 4: The trial Magistrate erred in law and fact when he awarded less alimony to the appellant.**

In arguing ground 4, counsel for the respondent submitted that the appellant did not show how the award of alimony of UGX. 3,000,000 is inadequate.

In granting alimony of UGX. 3,000,000/=, the learned trial Magistrate observed that aside from the grocery business the appellant was running, she equally depended on the rental income from the disputed property and upon dissolution of the marriage, she would be placed in economic hardship, since she was to vacate the disputed property.

The trial magistrate held that:

*"I deem this a fit and proper case for the petitioner to pay alimony to the respondent as a one-off payment, to cover reasonable expenses during the readjustment to her new life, especially in obtaining alternative accommodation or settlement to part of her previous marital home in the sum of UGX. 3,00,000/=."*

In the case of *Ayiko Mawa Solomon Vs. Lekuru Annet Ayiko Divorce Cause No. 0001 of 2015*, court held that:

> *"Alimony provides a secondary remedy and is available where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution of the matrimonial property. The purpose of alimony is not to reward one party and punish the other, but rather to ensure that the reasonable needs of the person who is unable to*

## *support herself through appropriate employment are met."*

In the instant case, I find that in awarding alimony of UGX. 3,000,000/=, the trial court was alive to the fact that the appellant had a grocery business and that she was to occupy part of the marital property which has a house where she could stay if she so wished. The alimony awarded was meant to support the appellant to cover reasonable expenses during the readjustment to her new life, especially in obtaining alternative accommodation or settlement to part of her previous marital home.

## In the case of *Ayiko Mawa Solomon Vs. Lekuru Annet Ayiko (supra) court held that:*

*"An award of alimony is properly made where the evidence shows that choices made during the marriage have generated hard future needs on the part of the respondent."*

In the instant case, the appellant has a grocery business. She is also entitled to a share in the parties' matrimonial property in Mukundungu village with the priority of taking the part where the matrimonial house sits. I find that these factors mitigate the extent of the alimony that the respondent would otherwise be ordered to pay. In the circumstances, I find the alimony of UGX. 3,000,000/= awarded by the learned trial magistrate appropriate.

Therefore issue 4 is answered in negative and must equally fail.

On the whole, after careful re-evaluation of the evidence on record, I have no reason to fault the learned trial magistrate's findings.

Resultantly, it is my finding that this appeal is without merit and is hereby dismissed.

The decision and orders of the trial magistrate are upheld.

Given the circumstances of the case, each party shall bear its own costs of this appeal.

It is so ordered.

Dated at Fort Portal this 12th day of July 2024.

**Vincent Emmy Mugabo Judge**