Tumwine v Wakulira (Civil Appeal 17 of 2023) [2024] UGHCFD 46 (18 April 2024)

Full Case Text

#### THE REPBULIC OF UGANDA

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

CIVIL APPEAL NO. 17 OF 2023 (ARISING FROM MISCELLAENOUS APPLICATION NO. 05 OF 2023 OF ENTEBBE **CHIEF MAGISTRATE'S COURT)**

**.....................................** SARAH TUMWINE :::::::::::::::::::::::::::::::

## **VERSUS**

WAKULIRA MUGABI RONALD ::::::::::::::::::::::::::::::::::::

Before: HON. LADY JUSTICE DR. CHRISTINE A. ECHOOKIT

## JUDGEMENT

## **BACKGROUND:**

This appeal is from the decision of the learned Chief Magistrate, Enteropeal is from the decision of the learned Chief Magistrate's 25 Court Her Worship Stella Maris Amabilis in Miscellaneous Application No. 05 of 2023 delivered on 20th July 2023. The appeal is for orders that this appeal be allowed with costs here and in the court below; and that the garnishee order granted by the lower court in Miscellaneous Application No. 147 of 2021 should be reinstated. The grounds of appeal are contained in a memorandum of appeal filed by the Appellant on 14th day of August 2023. The Respondent 30 filed a reply to the Memorandum of Appeal on 23rd day of March 2024.

The background to this appeal spurns many years and is best set out for ease of understanding and reference.

In 2013, the Appellant lodged a suit in the Family and Children Court at the Chief Magistrate's Court of Entebbe vide Family Cause No. 033 of 2013 in which the Appellant/Applicant sought custody of Makisa Sean Paris the child of the parties and to enforce the payment of UGX $400,000/$ = by the Respondent towards rent (UGX 200,000/=) and maintenance (UGX

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200,000/=). The Appellant/Applicant contended that the suit arose after the Respondent $\mathsf{S}$ informed her that he would stop paying the said amount of money.

On 14th day of May 2013 when Family Cause No. 033 of 2023 came up for hearing, the Respondent is on record as having informed court that due to the fact that his allowances had been reduced, he could no longer afford the UGX 400,000/= that he had offered and instead, the circumstances could only allow him to offer UGX 300,000/=. The Appellant/Applicant did not object to the offer and court then ordered the Respondent to give a monthly sum of UGX 300,000/= to the Appellant as maintenance for the child. Court also granted the Appellant custody of the child and allowed the Respondent to visit the child whenever convenient.

In 2017, the Appellant applied to court for a review of the maintenance amount on the ground that the cost of maintaining the child, especially the medical expenses, had increased considering that the child is a sickler. Consequently, on 3rd day of October 2017 Court ordered the Respondent to pay UGX 70,000/= for the child's monthly medical expenses in addition to the UGX 300,000/= earlier on ordered by court. The court also ordered that if the child is sick and hospitalized, the hospital bill shall be paid jointly by both parents. A decree was extracted to that effect.

It is the Appellant's claim that the Respondent refused to pay the UGX 70,000/= ordered by court for medical expenses of the child, and later also stopped paying the UGX 300,000/=. 25 Consequently, the Appellant complained to court in 2019 and a warrant of arrest was issued on 15th April 2019 against the Respondent who was then produced before court on 9th day of May 2019. Resultantly, court ordered the Respondent to pay UGX 2,230,000/= as the outstanding amount due to the Appellant.

As matters would have it, on 10th day of April 2019 the Respondent filed Miscellaneous Application No. 56 of 2019 (arising from Family Cause No. 033 of 2013) in the Family and Children's Court in the Chief Magistrate's Court of Entebbe. That application sought to review

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the agreed sum of UGX 300,000/= and the UGX 70,000/= on the grounds that the Applicant 5 had since got more responsibilities having gotten married and begotten 2 children with another woman. His Worship Matovu Hood Magistrate Grade 1 observed that the money for maintenance had been mutually agreed to by the parties and hence declined to review the same, while observing that more resources are needed to maintain the child since he is growing. His Worship went on to order in his ruling of 1st July 2019 that custody of the child 10 shall remain with the Respondent (Appellant in the present appeal) with school visitation rights to the Applicant (Respondent in the present appeal) as well as custody rights over the child during school holidays; and that should the Respondent's mother refuse or fail to comply, she would forfeit the right to maintenance.

On 10th day of September 2019, the Appellant in the present appeal appealed the decision of His Worship Matovu in Miscellaneous Application No. 56 of 2019 and filed Civil Appeal No. 004 of 2019 (arising from Misc. Application No. 56 of 2019) in the Chief Magistrate's Court of Entebbe. Her Worship Alum Agnes the Chief Magistrate ruled on 19th of February 2020 setting aside the order of His Worship Matovu. She ordered the Respondent to pay maintenance of UGX 400,000/= per month and medical fee of UGX 120,000/= per month. She also ordered that the outstanding (old) amount should be recovered with the old rates. She ordered that the said sums be recovered by way of deductions from the salary of the Respondent.

It is the Appellant's submission that the Respondent did not pay the amounts ordered by court 25 and that she wrote several letters to different offices but did not get any help. Subsequently, on 9th day of November 2021, she filed an ex parte application vide Miscellaneous Application No. 147 of 2021 (arising from Civil Appeal No. 004 of 2019) for a garnishee order against the Respondent and his bankers where his salary was being paid. The said application was not endorsed by court but was heard anyway. On 27th of January 2022, Her Worship Nakitende 30 Juliet the Chief Magistrate issued an order attaching monies on the account of the Respondent in Post Bank Limited to recover UGX 12,570,000/= as arrears that had accumulated as at the time of the application. Consequently, the garnishee order was served on the Respondent's

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bankers which started remitting the money to the Account Number in the child's name as per $5$ the order.

On the 17th day of February 2023, the Respondent filed Miscellaneous Application No. 05 of 2023 (arising from Civil Appeal No. 04 of 2019 and Family Cause No. 10 of 2022) in the Chief Magistrate's Court of Entebbe seeking, inter alia, orders to review and set aside the orders made against him in Miscellaneous Application No. 147 of 2021. The Respondent pleaded that his net monthly salary is UGX 350,000/= since he acquired a loan; that UPDF has offered medical treatment to the child but the Respondent has refused to honour the same; and that he has more responsibilities of a wife and children.

On 20th day of July 2023, Her Worship Stella Maris Amabilis the Chief Magistrate delivered a ruling in Miscellaneous Application No. 05 of 2023 in which she set aside all orders arising from Family Cause No. 33 of 2013 and Civil Appeal No. 04 of 2019, vacated the garnishee order, ordered the Applicant/Respondent to pay only UGX 200,000/= per month to cater for the child's food, clothing and accommodation, and ordered the Applicant to take the child to UPDF Administration Airforce for medical attention.

It is from the Chief Magistrate's decision in Miscellaneous Application No. 05 of 2023 that this appeal arose.

# **HEARING AND REPRESENTATION:**

The parties drafted their own pleadings and were unrepresented. They filed written submissions.

#### GROUNDS OF APPEAL: 30

1. That the learned Chief Magistrate, Entebbe Chief Magistrate's Court Her Worship Stella Maris Amabilis erred in law and fact when she held that the Respondent earns 520,000/= when there was no evidence led to prove that fact. $40$

- 2. That the learned Chief Magistrate erred in both law and fact when she failed to judiciously $\mathsf{S}$ evaluate the evidence on record thereby ignoring or not considering the previous conduct of the Respondent where he refused to pay even the amounts he had consented to. - 3. That the learned Chief Magistrate erred in law and fact when she ordered the Respondent to provide 200,000/= to the Appellant every month to cater for food and accommodation only, ignoring the special medical condition of the child as well as other needs like school fees. - 4. That the learned Chief Magistrate erred in law and fact when she failed to judiciously evaluate evidence on record thereby failing to observe that the Respondent had ever consented to the payment of UGX 370,000/= which is more than the UGX 350,000/= that was being deducted. - 5. That the learned Chief Magistrate erred in law and fact when she vacated the garnishee order against the Respondent without providing for an alternative means of enforcing the payment for the arrears which were the subject of the garnishee and due for over seven years. - 6. That the learned Chief Magistrate erred in law and fact when she ordered that the 20 Respondent takes the child to UPDF Administration Airforce for medical attention while ignoring the child's special condition which requires specialized medication.

## DETERMINATION OF THE APPEAL:

- Two issues must ultimately help in the determination of the appeal and these are; 25 - 1. Whether the ruling of the Chief Magistrate in Miscellaneous Application No. 05 of 2023 dated 20th July 2023 should be set aside and this appeal allowed with costs here and in the court below. - 2. Whether the garnishee order granted by the lower court in Miscellaneous Application

No. 147 of 2021 should be reinstated.

Section 76(1)(h) of the Civil Procedure Act allows an appeal to lie from any other order made under rules from which an appeal is expressly allowed by rules. The appeal in the present

matter is from the decision of the Chief Magistrate and as of right, such appeals are to the $\mathsf{S}$ High Court under section 220(1)(a) of the Magistrates Court Act.

This court will determine the appeal by re-evaluating the evidence on record in Misc. Appl. No. 05 of 2023 to determine if the decision of the learned Chief Magistrate was proper. For the proper determination of the appeal, all previous proceedings and decisions in respect of the matter are perused.

The Appellant argued grounds 1, 2, 4 and 5 together. She submitted that the said grounds relate to how the Chief Magistrate evaluated the evidence on record. She also argued ground 3 and 6 separately.

## The finding that the Respondent earns 520,000/=

The Appellant is aggrieved that the learned Chief Magistrate, Entebbe Chief Magistrate's Court Her Worship Stella Maris Amabilis erred in law and fact when she held that the Respondent earns 520,000/=. The Appellant submitted that this finding was wrong since there was no evidence led to prove that fact.

She proceeded to quote the ruling of Her Worship Stella Maris Amabilis at page 5 thereof which stated that:

"Be that as it may, the applicant's submission that the court orders in civil appeal No. 4 of 2019 and M. A No. 146 of 2021 ought to be set aside and/or reviewed on account that he earns only 350,000/= per month and that the orders made by this court consume his entire salary in maintenance and medical expenses. are not backed up with satisfactory evidence as proof of the actual fact that he earns a net pay of $350,000/=$ .

The burden of proving monthly earnings from the UPDF squarely rests on the applicant to provide this court with the necessary payslip from his employers.

- Normally this payslip would indicate the employee's unique number upon which he is paid. The court cross checked with one of the officers in UPDF and established that the applicant at his rank of sergeant earns 520,000/= per month not 350,000/ $=$ as he alleges." - The Respondent in reply stated that he earns UGX 350,000/= as shown in his payslip on 10 court record.

I have perused Misc. Application No. 5 of 2023 and see indeed that annexture "B" to Wakulira's affidavit in support of the application therein shows that there is a periodic deposit by the Ministry of Defence of varying figures being 480,249/= (on 14th August 2022), 960,498/= (on 11th September 2022), 355,860/= (on a date that faintly seems to be 15th November 2022) and 355,860/= (on 22nd December 2022). The said attachment is an excerpt from the Post Bank Statement of the Wakulira (then Applicant/Judgement Debtor). It is apparent that the learned Chief Magistrate addressed her mind to that aspect and her consultation with a UPDF "officer" when she concluded that the Respondent's salary is consumed in maintenance and medical expenses.

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## Failure to evaluate the evidence on record

The Appellant cited Section 103 of the Evidence Act which is to the effect that the burden of proof lies on the person who asserts a fact. She submitted that the learned Chief Magistrate 25 indeed stated likewise but even after finding that the Respondent had failed to provide proof, she went ahead to help the Respondent bolster his case by crosschecking with a UPDF officer, which is beyond acceptable limits. The Appellant submitted that the learned Chief Magistrate did not disclose who the said officer was, the rank, the position or capacity in which the said "officer" provided the information. 30

The Appellant submitted that had the learned Chief Magistrate properly evaluated the evidence, she would not have made the orders she made.

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The Respondent in his reply stated that the learned Chief Magistrate relied on the payment slips from UPDF and bank statements from Post Bank Uganda to ascertain that the Respondent's gross salary was UGX 520,000/=; that the Chief Magistrate was only exercising due diligence in calling a military officer who alluded to the same salary structure; and that the Appellant did not adduce evidence to contradict that salary.

On reading page 6 of the ruling of Her Worship, I find that the learned Chief Magistrate stated that;

It is my finding that the only ground relied on by the applicant to have the orders in Civil Appeal No. 04 of 2019 and M. A. No. 146 of 2021 set aside is sufficient cause on account that he earns only 520,000/= which is not enough to settle the decretal sum and the monthly maintenance and medical expenses of the child."

The perusal of annexture "B" to the affidavit evidence of Wakulira in Misc. Application No. 5 of 2023 does not show any gross salary amount of UGX 520,000/=; rather a consistent figure is 20 shown as indicated in my analysis above. I agree with counsel for the Appellant that the Respondent has the onus to prove his salary himself and that the learned Chief Magistrate did not have to inquire from an unnamed UPDF officer about the salary payable to a sergeant. That notwithstanding, proof of the salary amount did not warrant the Chief Magistrate concluding that it was not enough to settle the decretal sum and the monthly maintenance and 25 medical expenses of the child. This is because the decretal sum was an accumulation of monies outstanding over a period of time, and ought not to have been seen in the light of the purported salary of the Respondent. Rather, the obligation to pay the outstanding amount ought to have been assessed based on the history of payments by the Respondent or the lack of it over the period when the monies remained outstanding. 30

$5$ The Appellant also stated that the learned Chief Magistrate failed to observe that the $\mathsf{S}$ Respondent had ever consented to the payment of UGX 370,000/= which is more than the UGX 350,000/ $=$ that was being deducted.

In reply, the Respondent stated that at the time he consented to paying UGX 370,000/= in 2013, he was still single with less responsibility, but now he has a family of a wife and 3 10 children. He submitted that even a consent order can be reviewed as was found in the case of Attorney General & Uganda Land Commission Vs James Mark Kamoga & Anor Civil Appeal No. 8 of 2004.

I find that it is self-defeating for parties to enter into a consent and then immediately relegate 15 on this. If such a practice was condoned on the basis that a consent order can be reviewed, the ability of courts to adjudicate over disputes would indeed be trampled over. Once parties enter into a consent they must be seen to implement it in good faith unless there is something materially wrong with the consent in the first place. If the consent is proper as per law, when the obligations under the consent become onerous, the aggrieved party has a right to return 20 to court for review, pleading leniency. However, court must be convinced that the applicant requesting a review of the consent has done all it takes to comply with the consent order - in the present matter, by actually remitting the agreed sums. The applicant cannot simply ask for a review when not fully compliant with the court orders in several court processes spurning several years. For clarity, the trend of events is summarized as below; 25

This matter started way back in 2013 by a suit in the Family and Children Court at the Chief Magistrate's Court of Entebbe vide Family Cause No. 033 of 2013 in which the Respondent suggested that he would be able to pay UGX 300,000/= per month. The Appellant agreed to the same, and so this was the original consent amount. The said sum was reviewed to UGX 370,000/= per month in 2017, with the UGX 70,000/= being the child's monthly medical expenses. In 2019, the amount of UGX 2,230,000/= was outstanding and court issued a

warrant of arrest against the Respondent on 15th April 2019 who was produced in court on 9th 5 of May 2019 wherein he was ordered to pay the said sum.

On 10th day of April 2019 the Respondent filed Miscellaneous Application No. 56 of 2019 for review of the agreed sum of UGX 300,000/= and the UGX 70,000/= on account that he had since then got more responsibilities. His Worship Matovu Hood Magistrate Grade 1 observed that the money for maintenance had been mutually agreed to by the parties and hence declined to review the same, while observing that more resources are needed to maintain the child since he is growing. In Civil Appeal No. 004 of 2019, Her Worship Alum Agnes the Chief Magistrate ruled on 19th of February 2020 setting aside the order of His Worship Matovu. She ordered the Respondent to pay maintenance of UGX 400,000/= per month and medical fee of UGX 120,000/= per month. She also ordered that the outstanding (old) amount should be recovered with the old rates. She ordered that the said sums be recovered by way of deductions from the salary of the Respondent.

- 20 The continued non-payment by the Respondent led to a garnishee on his salary account in Post Bank vide ex parte garnishee proceedings in Miscellaneous Application No. 147 of 2021. When remittances to the child's account started, Miscellaneous Application No. 05 of 2023 was filed by the Respondent and on 20th day of July 2023, Her Worship Stella Maris Amabilis the Chief Magistrate delivered a ruling setting aside all orders arising from Family Cause No. 33 of 2013 and Civil Appeal No. 04 of 2019 and vacating the garnishee order. The learned 25 Chief Magistrate made her own order - that the Applicant/Respondent pays only UGX 200,000/= per month to cater for the child's food, clothing and accommodation, and that the Applicant takes the child to UPDF Administration Airforce for medical attention. - It is my considered view that the learned Chief Magistrate should have addressed her mind to 30 the period before 10th day of April 2019 when the Respondent filed Miscellaneous Application No. 56 of 2019 pleading his added responsibilities. Had the Respondent been totally compliant with the court orders before that period, Court would have had reason to consider reviewing

the amount of money to be remitted to the Appellant for the child's welfare, bearing in mind 5 the salary amount due to the Respondent and notwithstanding that the sums of money for maintenance had been mutually agreed to by the parties.

## **Previous conduct of the Respondent**

The Appellant submitted that the learned Chief Magistrate failed to put into consideration the 10 previous conduct of the Respondent where he refused to pay the amounts consented to (M. A. 147 of 2021). She stated that Civil Appeal No. 04 of 2019 was concluded in February 2020 and still the Respondent had not complied with the orders and had defaulted on paying the amounts consented in Family Cause No. 33 of 2013.

In his reply, the Respondent stated that he has been complying with the court orders and that the Appellant has been receiving UGX 200,000/= off the Respondent's salary as indicated in the bank statements which show the deductions paid to the Appellant.

- I agree that indeed the Respondent has paid some of the outstanding sums to the Appellant 20 but still owed more. It is not evident from the ruling of the learned Chief Magistrate that she took into account the history of court orders and outstanding amount due from the Respondent. yet she ought to have done so in determining the matter before her. It is indeed true that the Respondent has variously pleaded inability to fully meet the demands of the Appellant, the - basis of his application for review in Miscellaneous Application No. 56 of 2019. 25 But that came only after the garnishee order in Miscellaneous Application No. 147 of 2021. Hence, had the learned Chief Magistrate Her Worship Stella Maris Amabilis properly considered the past events in this matter, she probably would have arrived at a different decision.

## **Vacation of the garnishee order against the Respondent**

On 27th day of January 2022, court granted a garnishee order against the Respondent's Post Bank Account vide Miscellaneous Application No. 147 of 2021 to recover UGX 12,570,000/=

as arrears that had accumulated as at the time of the application. Her Worship the Chief 5 Magistrate vacated this order and substituted it with UGX 200,000/= per month to cater for the child's food, clothing and accommodation.

The Appellant submitted that the decision of the learned Chief Magistrate was wrong as it did not take into account the efforts taken to recover the outstanding monies by garnishee. 10

In reply, the Respondent stated that the learned Chief Magistrate was right to vacate the garnishee order after she properly evaluated the evidence and came to the right conclusion that salary was the Respondent's only source of income. He further stated that the Appellant did not adduce evidence to show that the Respondent had an alternative source of income. He argued that the garnishee order was compromising his livelihood and that of his other family.

In view of my findings in respect of the other grounds above, the vacating of the garnishee order by the learned Chief Magistrate Her Worship Stella Maris Amabilis should have taken into account the fact that the Respondent had been largely non-compliant before the garnishee order was granted. She ought to have replaced the said garnishee order with another one, entitling the Appellant to a direct remittance from the Respondent's salary account.

Order for the Respondent to provide 200,000/= to the Appellant and the order that the 25 Respondent takes the child to UPDF Administration Airforce for medical attention The Appellant submitted that the learned Chief Magistrate erred in ordering the Respondent to pay only UGX 200,000/=, ignoring the medical condition of the child and other needs such as school fees. She further submitted that the learned Chief Magistrate did not demonstrate how she reached at the figure of 200,000/=, and that she specifically stated that the said 30 amount was to cater for the child's food, clothing and accommodation, without providing for the child's school fees. In respect to the child's medication, the Appellant submitted that the $\overline{4}$

order to take the child to UPDF Airforce for medical attention ignored the child's special medical $\mathsf{S}$ condition being a sickler, which requires specialized medication.

The Appellant cited Section 3 of the Children Act and Family Cause No. 2 of 2018, Re Hassan Kaaya on the welfare of children. She submitted that the learned Chief Magistrate ignored the welfare principle when making her orders.

In reply, the Respondent stated that every child of an army officer is entitled to free education from primary to secondary level provided by UPDF and that the said provision applies to him as well since he is an officer. He also stated that the UPDF provides medical care to a soldier, his or her spouse and children as confirmed by the commitment form on court record; that Dr. Aska Twinobuhungiro the Director Medical Services expressly provided for the procedure for highly specialized medical need which is contacting the said Director; and that the learned Chief Magistrate considered the welfare of the child when arriving at her decision.

I agree with the Appellant that the learned Chief Magistrate did not demonstrate how she 20 reached at the figure of 200,000/= as there was no such specificity in the affidavit evidence of the Respondent.

In respect of the medical expenses of the child, I perused annexture "C" to the Respondent's affidavit in reply in Misc. Application No. 05 of 2023 and found that indeed the Director Medical 25 Services of the UPDF in a letter to the Respondent simply dated March 19, stated that "in case of emergency or highly specialized medical need contact Director Medical Services Uganda Airforce for a referral in specialized hospital at the expense of UPDF." I find that the Appellant could have taken advantage of this offer for the provision of the medical services that the child needs. It is not clear from the proceedings over the years since this case started whether she 30 did so. My summation of this matter is that the learned Chief Magistrate would be right in setting aside the amounts relating to medical expenses after finding that indeed the Uganda Airforce of the UPDF provides the necessary medical facilities and referral services as alleged

in the letter annexture "C". It is not evident from the proceedings in Miscellaneous Application $\mathsf{S}$ No. 05 of 2023 that she did so.

In view of my findings above and to prevent perpetual litigation over the issue, it is best that the learned Chief Magistrate has a second opportunity to re-evaluate the evidence on court record, as well as re-confirm some of the assertions such as those regarding the salary of the Respondent and the medical arrangements available to the parties.

As to whether the Respondent should pay the costs of the appeal and Misc. Appl. No. 0003 of 2023, I find that the dispute between the parties have been on-going for several years, all pertaining their child. Also, the issue of money had been dogging the parties and this appeal should not add to the burden.

## **CONCLUSION:**

In the premises, this appeal succeeds in part and I order that:

- a) The matter be and is hereby referred back to the learned Chief Magistrate of the Chief 20 Magistrate's Court of Enterory for: - The proper assessment of the salary of the Respondent and a pragmatic allocation i) of the maintenance amounts due to the Appellant for the benefit of the child Mukisa Sean Paris. - ii) Determination of arrears due, the period the arrears cover and arrangements for payment of the same. - iii) Ascertainment of the medical facilities and referral services of the Uganda Airforce of the UPDF for the benefit of the child. - iv) Orders assuring that the Appellant receives the decretal sum.

b) I make no order as to costs.

I so order.

**Dated** at Kampala this.................................... $\ldots \ldots 2024.$ $\overline{5}$

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HON. LADY JUSTICE DR. CHRISTINE A. ECHOOKIT

Judge. $10 \\$

The right of appeal explained.