THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA SITTING AT ARUA

MISCELLANEOUS CIVIL CAUSE No. 0059 OF 2016
(Arising from High Court Civil Appeal No. 0022 of 2013)

KANA RICHARD ………………...........…………..............………… APPLICANT

VERSUS

EZATIRU AGNES …..…….…………….............................................. RESPONDENT

Before: Hon Justice Stephen Mubiru.

RULING

This is an application made under the provisions of section 98 of The Civil Procedure Act and
Order 52 rules 1, 2, and 3 of The Civil Procedure Rules. The applicant seeks orders from the
respondent to account for all money received in respect of rental property, the respondent remits
half of that money to the applicant and that the tenants are stopped from paying rent to the
respondent. In the affidavit supporting the application, the applicant deposes that he and the
respondent contracted a monogamous marriage during the year 2000 but due to irreconcilable
differences, obtained an order of divorce from the Chief Magistrates Court of Arua on 21 st Day
of March 2013. Before that divorce, they had acquired a plot of land at Onzivu village, Oluko
Sub-county Arua District and constructed three permanent houses thereon which they let out to
tenants. That court decided that the land did not constitute matrimonial property as a result of
which the applicant appealed to the High Court which reversed that finding and made an order
that the property be shared equally. The respondent has nevertheless not remitted any money to
the applicant despite the fact that she collects Shs. 250,000/= per month, recently increased to
Shs. 500,000/= per month, hence the prayer for the orders sought.

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In her affidavit in reply, the respondent denies the claim that the three houses were constructed
jointly with the applicant. She instead contends that the dispute between her and the applicant
was in respect of the land and a residential house which the Chief Magistrates Court decided did
not constitute matrimonial property. The appeal was restricted to that property and did not
include the three rental houses. The decision of the High Court declared that the two parties held
equal shares in the residential house but the applicant had extracted a decree which is
inconsistent with that finding by including the three rental houses, which had never been the
subject of any court proceedings, on which basis the applicant is now making the current
application. The applicant by his conduct had forced the tenant of the residential house to leave
during Mid 2014 and it has remained vacant since then as a result of which no income is being
generated from the house that the court declared they own jointly.

At the hearing of the application, the two parties appeared in person, unrepresented and made
submissions elucidating their respective grounds in support and opposition to the application as
outlined above. I have had occasion to peruse the record of proceedings of court during the
divorce proceedings and the subsequent appeal there-from. In his divorce petition dated 18 th May
2012 and filed in court on the same day, it is apparent in paragraphs 5 and 8 that the grounds
advanced by the applicant for seeking divorce was desertion and cruelty, on the allegation that
the respondent had denied him conjugal rights for one year and eight months, and later declared
she would not return to his home. One of the orders sought was “to divide the jointly owned
property.” N here reply to the petition dated 19 th September 2012 and filed in court on the same
day, the respondent, the respondent alleged cruelty, physical and psychological abuse on the part
of the applicant as the reasons that had forced her to desert the home and live in separation from
the applicant. She blamed the separation on the applicant. In paragraph 10 of her affidavit in
reply, she contended that “the grounds advanced by the petitioner seeking for an order of divorce
are not sufficient grounds in law for the grant of the said order.” She denied having acquired any
property jointly with the applicant during the subsistence of their marriage nor having taken any
of his personal effects when leaving the home.

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The Chief Magistrate did not hear or record any evidence from the parties but nevertheless went
ahead to grant a Decree Nisi. The relevant part of the record of proceedings on 20 th September
2012, reads as follows;-
Both parties before Court.
Both parties represent themselves.
Petitioner: - I would like to (sic) this petition.
Respondent: - As per my affidavit in reply, I do not intend to live as husband and
wife with the petitioner.
Court: - Upon perusal of the documents in this case, I find sentiments are high and
there is no opposition to the dissolution of the marriage. Court hereby issues
a Decree Nisi and in six months if the parties do not reconcile, a Decree
Absolute dissolving this marriage shall be issued. Hearing adjourned to
20/3/2013.

On appeal to the High Court, the then Resident Judge in his judgment commented on the
propriety of those proceedings as follows; -
I find that the procedure adopted by the trial magistrate in handling this matter was
irregular and erroneous for the following reasons: - all the facts before court ought to
be proved by way of evidence adduced before court. Apart from the respective
affidavits filed by each party, the court did not treat the information court was
receiving from each party as evidence at all that is why the court did not take address
by such address by the parties before the trial court as evidence otherwise such
information from the parties herein should have been received by the court after each
party was sworn / or affirmed before the court as a witness to satisfy the requirement
of the Evidence Act (Cap 6). Even during the subsequent proceedings and hearing
regarding the ownership of the residential house at Onzivu village, Oluko Sub-
county, in Arua District, the trial magistrate did not take the parties’ evidence in
accordance with the requirement of section (sic) of the Evidence Act which requires
that all evidence before court must be taken on oath and affirmation as the case may
be.

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 Furthermore, a petitioner in a divorce cause has to prove to the satisfaction of the law
the specified ground of divorce before the petition can be granted. Whether there is
no opposition to the petition or not, the burden is still on the petitioner to prove the
grounds that entitle him to the grant of the orders petitioned under the Divorce Act.
Instead the trial Chief Magistrate in effect treated the petition as a separation
agreement and not a divorce petition.

Despite the observation that before the Chief Magistrate, the grounds of divorce had not been
proved and that the parties had not submitted evidence in accordance with the procedural
requirements regarding the disputed residential house, on appeal his Lordship went ahead and
decided in favour of the applicant and declared that the parties had equal shares in that disputed
property. Sanctity of finality is, no doubt, attached to a judgment passed by this Court in exercise
of its civil appellate jurisdiction but I find myself unable to agree with, follow and sustain this
finding. To me it is an error apparent on the face of the record which this court has inherent
powers under section 98 of The Civil Procedure Act, to correct. Under that provision, the court
has inherent power “to make such orders as may be necessary for the ends of justice or to prevent
abuse of the process of the Court.” Inherent jurisdiction has been defined as “a residual source of
powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in
particular to ensure the observance of due process of law, to prevent vexation or oppression, to
do justice between the parties and to secure a fair trial between them.” (See Halsbury's Laws of
England, Fourth Edition, page 374). The High Court under its inherent power can review or
recall its judgment or order if found to have been passed without jurisdiction, without
adjudication on merits, in violation of any law or obtained by playing fraud on the Court. It is
only in the interest of justice that I resort to this power to redress grievances of the parties before
me for which no other procedure is available. By virtue of that provision, this court possesses all
such powers, which would be necessary to do right and undo a wrong in the course of
administration of justice. This is the power I have chosen to invoke in order to correct the error
and in order to address the grievances of the parties before me.

It is a rule of practice that has the force of law that evidence in civil trials is taken upon oath or
affirmation of the nature provided for in The Oaths Act. The effect of evidence not given on oath

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is that it amounts to no more than a mere statement of no probative value to the case (see the
High Court of Kenya decision of Consolata Hospital Mathari v. Dr. Bianka Matens Nyeri HCCA
No. 17 of 2004 and Musikari Kombo v Royal Media Services Ltd [2014] eKLR). Since during the
divorce proceedings and the subsequent hearing leading to the determination by the learned
Chief Magistrate of the status of the disputed residential house as not constituting matrimonial
property, none of the parties gave evidence on oath and none was afforded the opportunity to test
the veracity of that evidence by cross-examination, their statements to court could had no
probative value and could not be the basis of any finding of fact let alone a valid decision of
court. The proceedings were fundamentally flawed as to constitute no trial at all. The
proceedings could not be used as a valid basis for the determination of the rights and status of the
parties. They did not have a fair trial before the court of first instance.

Therefore, when the applicant appealed the decision, the appeal had not been preceded by a valid
trial at first instance since the decisions of the court below where not founded on evidence. The
learned Judge of the High Court in entertaining the appeal, even in the face of that glaring
anomaly, with due respect, misdirected himself. Since the matter has now been brought to the
attention of court, such an error cannot be allowed to continue but has to be corrected for
purposes of ensuring the observance of due process of law, and in order to do justice between the
parties and to secure a fair trial between them. I must take effective steps to safeguard the
parties’ legal rights, and especially the right to a fair trial, and for the protection of the integrity
of system of justice as regards divorce proceedings.

During the submissions before me, the applicant contended that the Chief Magistrate’s Court and
this Court on appeal had misconstrued the scope of his claim over matrimonial property in
excluding the three rental units. On her part the respondent contended that the land on which
these units are built together with the residential house declared to be matrimonial property, was
procured by proceeds of gratuity paid in respect of the death of her father, a former soldier in the
armed forces. She contended that the rest of her siblings had interest in the property and
therefore it cannot constitute matrimonial property.

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There is no basis upon which this issue may be decided one way or the other by this court in
exercise of its appellate jurisdiction since no evidence was properly taken by the court of first
instance. I find myself unable to receive evidence on this point under the provisions of section 80
(1) (d) of The Civil Procedure Act, which empowers this court in exercise of its appellate
jurisdiction to take additional evidence or to require such evidence to be taken, because the very
foundation of the divorce; the Decree Absolute, was issued without a proper trial and proof of
the grounds of divorce.

In the circumstances, having found that the entire proceedings were fundamentally flawed as to
constitute a mockery of a trial in divorce proceedings, I hereby set aside the Decree Absolute, the
Decree Nisi and the order declaring the parties hereto as having equal shares in the residential
house at land at Onzivu village, Oluko Sub-county Arua District. I order instead that the file be
remitted back to the Chief Magistrate’s Court with directions that the entire petition be heard de-
novo. There is no order as to costs.

Dated at Arua this 10th day of November 2016. ………………………………

Stephen Mubiru,
Judge