Uganda: Court of Appeal Overturns Divorce Ruling

28 January 2020

Kampala — A case in which a woman was denied property in divorce has been overturned in the Court of Appeal.

The court ruled that no court can issue a divorce decree to an estranged couple without first conducting trial and securing consent from both to have their marriage annulled.

The decision delivered on Thursday last week arose from an appeal filed by a former banker, Ms Rebecca Nagidde. She appealed the ruling of Justice David Matovu, the head of the Family Division of the High Court.

She had sought to dissolve her marriage, accusing her husband, Mr Charles Steven Mwasa, an accountant at Mulago Hospital, of adultery and cruelty.

However, although Justice Matovu granted the divorce as Ms Nagidde wanted, she was dissatisfied with the ruling on property sharing. The judge granted the husband exclusive possession of the couple's matrimonial home at Kyadondo and Kiwatule and ordered him to pay off his wife half the value of the said property within six months after valuation.

But a three-judge panel led by Justice Fredrick Egonda-Ntende of the Court of Appeal, faulted Justice Matovu for having dissolved the marriage between the estranged couple without hearing the side of the wife.

The justices ordered the divorce file to be returned to the Makindye-based Family Division of the High Court and be heard afresh before another judge.

"Upon consideration of the foregoing provisions, it is evident that the trial court failed to conduct a full and proper trial. Courts are supposed to pronounce judgment only after the case has been heard, based on the evidence adduced in the case and the applicable law unless the parties have agreed to the facts that resolve the issues between them by consent. The procedure adopted by the trial court in the instant case is alien to that provided by the Civil Procedure Rules," ruled Justice Egonda-Ntende who wrote the lead judgment.

Other justices who are in agreement with the lead judgment are; Stephen Musota and Remmy Kasule.

The justices of Court of Appeal observed that the trial judge put some questions to Mr Mwasa upon being sworn but he was neither examined in chief nor cross-examined.

They added: "For the foregoing reasons, I would allow this appeal with costs in this court. I would set aside the decree and the judgment of the trial court and order a re-trial. Costs in the court below should abide the outcome of the re-trial."

Lawyers weigh in

Ms Florence Nakachwa Dollo, a family law lecturer at Law Development Centre (LDC), said marriage is a very important institution and that for the same to be dissolved, both parties should have been heard.

"The public shouldn't be duped to believe that a given marriage has been rightly dissolved and yet one party was not given a hearing," Ms Nakachwa Dollo said.

Divorce lawyer Justine Idoot said: "Courts of law previously, have been using short cuts to grant divorce without necessarily following the law."

He added that in the instant case, Mr Mwasa had denied the adultery allegations, meaning the wife who had made the allegations, should have been tasked to lay evidence to prove the same.

Another lawyer, Ms Judith Linda Ninsiima, faulted the trial court for having issued a divorce order without hearing out from the petitioner (Ms Nagidde).

"It is highly irregular for court to determine cases without hearing from the parties. The right to be heard is one of the non-derogable rights protected by the Constitution of Uganda under article 28. Court of Appeal noted that there was no trial In the first place and rightly referred the matter back for retrial." Ms Ninsiima said yesterday

Background

The couple solemnised their marriage on November 29, 2008 at All Saints Cathedral in Kampala and have two children.

On February 20, 2018, Justice Matovu dissolved the marriage on grounds of irreconcilable differences and granted the custody of their children to Mr Mwasa with Ms Nagidde given visitation rights once a month, an order she does not accept.

The trial judge also ordered that all properties were to remain the exclusive properties of the respective owners and properties.

The judge also ordered that properties that were jointly owned were to be valued by the chief government valuer and either of the parties were to pay half of the value of the property to the other within six months to own the property alone.

Justice Matovu also ordered that Mr Mwasa pays his estranged wife the percentage shares she owned in the company (Candy Investment Ltd) upon evaluation of assets.

Ms Nagidde had in her appeal, accused the trial judge of having erred in law when he failed to declare that the properties in Kyadondo, Kiwatule, Luthuli Close in Bugolobi and other places were matrimonial property.

DIVORCE RULING

The couple solemnised their marriage on November 29, 2008 at All Saints Cathedral in Kampala and have two children.

On February 20, 2018, Justice David Matovu dissolved the marriage on grounds of irreconcilable differences and granted the custody of their children to Mr Charles Steven Mwasa with Ms Rebecca Nagidde given visitation rights once a month, an order she does not accept.

The trial judge also ordered that all properties were to remain the exclusive properties of the respective owners and properties.

The judge also ordered that properties that were jointly owned were to be valued by the chief government valuer and either of the parties were to pay half of the value of the property to the other within six months to own the property alone.

Justice Matovu also ordered that Mr Mwasa pays his estranged wife the percentage shares she owned in the company (Candy Investment Ltd) upon evaluation of assets.

Ms Nagidde had in her appeal, accused the trial judge of having erred in law when he failed to declare that the properties in Kyadondo, Kiwatule, Luthuli Close in Bugolobi and other places were matrimonial property.

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