THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(FAMILY DIVISION)
CIVIL APPEAL NO. 22 OF 2017

(Arising from Civil Appeal No. 003 of 2016 holden at the Chief magistrates
Court of Mengo at Mengo, arising from Mengo Family &Children Court Misc.
Appn. No. 129 of 2016 and arising from Family Cause No. 009 of 2015)

SELAMAWIT HAILE TSCGY

FEVEN HABTE AKOLOM ::::::::::::::::::::::::::::::::::::::::::: APPELLANT
VERSUS
1. AMANUILE YEMANE
2. SENAIT YEMANE:::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

BEFORE: HON. LADY JUSTICE KETRAH KITARIISIBWA KATUNGUKA

JUDGMENT

1. Introduction
This is an Appeal from the Judgment and Orders of Her Worship Nansambu
Esther Rebecca, Chief Magistrate at Mengo, delivered on the 18 th day of January
2017 in Civil Appeal No. 003 of 2016 itself having been an appeal against the
Judgment and orders of Her Worship Nambatya Irene Magistrate Grade 1 ,in the
Family and Children Court of Mengo in Miscellaneous Application No. 129 of
2016; for orders that the Appeal be allowed; the judgment and decree entered for
the Respondent against the Appellant by the Chief Magistrates Court of Mengo be
set aside; custody of the children be granted to the Appellant/ mother of the
children and the 1st Respondent be granted access/ visitation rights to the children
at a convenient and reasonable time and place; the Judgment and Orders of Her
Worship Nambatya Irene in the Family and Children Court of Mengo in
Miscellaneous Application No. 129 of 2016 be validated and enforced; and that
the Respondents pay costs of this appeal and in the courts below.

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2. Background
The Appellant and the 1st Respondent are divorced with two issues namely
Delina Amanuiel Yemane (now aged 6 years) and Natnael Amanuiel Yemane
(now aged 2 years). On 10/09/15; while the Appellant was out of the country, the
1st Respondent and his sister (the 2nd Respondent) were granted custody of the two
children vide Family Cause No. 9 of 2015. Upon the Appellant’s return she
applied for revocation of the custody order and for custody of the children on
26/03/16 vide Miscellaneous Application No. 129 of 2006 which was granted with
access and visitation rights to the 1st Respondent. The Respondents appealed
against the decision vide Civil Appeal No. 003 of 2016 in the Chief Magistrates
Court of Kampala at Mengo which was allowed by the Chief Magistrate, Her
Worship Nansambu Esther who restored the custody order in favour of the
Respondents.
Being dissatisfied with the said judgment, the Appellant filed this appeal.

3. Grounds of the Appeal

i) The Learned Chief Magistrate erred in law by failing to subject all the
evidence on record to a thorough scrutiny thereby arriving at a wrong
conclusion.
ii) The Learned Chief Magistrate erred in law in holding that the Appellant
is not domiciled in Uganda and thus cannot take care of the children
based on hypothetical presumptions, speculations and conjecture which
the trial court could not have believed to be true when there was
abundant evidence to the contrary.
iii) The Learned Chief Magistrate erred in law in making findings that the
Appellant is not financially capable of providing for the children based
on speculations rather than the evidence on record.
iv) The Learned Chief Magistrate erred in law in making findings that the
Appellant is of unpredictable character based on speculations rather than
the evidence on record.

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4. Representation
The Appellant is represented by Counsel Okong Innocent from Kob Advocates &
Solicitors while the Respondents are represented by Counsel Muchake Musa of
Muchake& Byereete Advocates. Both filed written submissions.

5. Resolution
I shall address each of the grounds as listed and on the order followed by counsel.
5.1. Ground 1

The Learned Chief Magistrate erred in law by failing to subject all the
evidence on record to thorough scrutiny, thereby arriving at a wrong
conclusion.

a) The law on the powers of a second appellate court to re-evaluate

evidence has been handled and resolved in Pandya vs. R [1952] EA
336, Ruwala vs. R 1957 EA 570, Moses Bogere vs. Uganda Cr.
App. No.1/1997(SC), Kifamunte Henry vs. Uganda, Cr. App.
No.10/97, Baguma Fred vs. Uganda Cr. Case No.7 of 2004 and
Father Nesbensio Begumisa and 3 Others vs. Eris Tibegaga,
SCCA 17/2002; and recently in the case of Nangobi v Sophatia
(CIVIL APPEAL NO.0097 OF 2011) [2014] UGCA 7 (25 February
2014)

b) The 1st appellate court’s failure to properly re-evaluate evidence on

the first appeal is an error justifying the second appellate court to re-
evaluate the evidence and reach its own decision.

c) It is only where the 1 st appellate court has failed to re-evaluate

evidence that it becomes incumbent on this court as a second appellate
court to evaluate the evidence. (Also see the case of Ndimwibo &3

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 others vs. Ampaire Civil Appeal No. 65 of 2011 cited by counsel for
the Appellant).

d) The issue now is; whether the first Appellate court failed to properly
reevaluate evidence warranting this court being the second appellate
court to evaluate evidence and arrive at its own conclusion.

e) Evidence is evaluated by outlining the known/ given facts of a case,

extracting issues therefrom and resolving such issues in relation, firstly,
to the given facts and evidence on the file, and secondly to the position
of the law. Thereafter, a clear conclusion must be drawn regarding each
issue.

f) The Learned Justices of the Supreme Court in the case of Kifamunte

Henry vs. Uganda (Criminal Appeal No. 10 of 1997) [198] UGSC 20
(15 May 1998); noted that an appellate court has a duty to review the
evidence of the case and to reconsider materials and make up its own
mind: disregarding the judgment appealed from but carefully weighing
and considering it, (emphasis mine).

g) Appeal is hinged on error and failure to re-evaluate evidence is an error

which would form a ground for appeal. (See the cases of Muluta Joseph
vs. Silvano Katama Supreme Court Civil Appeal No. 11 of 1999, and
Bogere Moses vs. Uganda, Supreme Court Criminal Case No. 1 of
1997).

h) It was submitted for the appellant that if the learned chief Magistrate had
subjected the evidence to a thorough scrutiny she would have found that
the appellant mother of the children resident of Bakuli in Rubaga
Division was gainfully employed and so eligible to have custody of the
children who are minors. To support this, he cited the case of Samwiri
Massa vs. Rose Acen [1978] HCB 297; and that conversely the
Respondent is a truck driver who is always away and cannot effectively

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 look after the children yet the second respondent did not express any
commitment to look after the children.

i) For the Respondent it was argued that the Custody order was wrongly
revoked by the trial court and for this he relied on Section 73(2) of the
Children Act, Cap.59 and further argued that the Appellant had not
shown justifiable cause.

With all due respect counsel for the Respondent did not address the
ground of appeal but instead went into technicalities which had been put
to rest where the 1st appellate court had rightly considered and agreed
with the trial court under section 3 of the Children Act, the 1st schedule
thereof and Article 126(2) of the Constitution of the Republic of
Uganda.

j) I have considered the submissions of both counsel for the two parties
and studied the judgment and the evidence on record. I have
specifically noted that the role of the appellant as a mother, her place
of abode, the ages of the children, the occupation of the 1 st respondent
and the alternative care for the children in the absence of both parents
and finally the report of the Probation and Welfare Officer are all
glaringly missing from the analysis of the evidence. I also take note
that Her Worship Nansambu Esther Rebecca, Chief Magistrate upheld
most of the decisions of the trial court except on the issues of domicile,
financial stability and best interest. (See: Page 3 Paragraph 6 from the
top of the Judgment)

k) I am of the view that if the evidence on record had been properly re-
evaluated, a different decision would have been reached by the first
appellate Court.

l) The first ground therefore succeeds. I now proceed to re-evaluate the

evidence on record.

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I shall address my mind to the 3 issues which led Her Worship to reach the decision
she did.

5.2. Ground 2

The Learned Chief Magistrate erred in law in holding that the Appellant is not
domiciled in Uganda and thus cannot take care of the children based on
hypothetical presumptions, speculations and conjecture which the trial court
could not have believed to be true when there was abundant evidence to the
contrary.

a) It was submitted for the Respondent and the appellate court found that
the Appellant could not manage to look after the children in Uganda
because she is a British citizen whose domicile is in the United Kingdom
and that she has not shown any intention to stay in Uganda permanently
yet the custody order requires her never to take the children out of the
country. It was argued that the Appellant got her domicile in Uganda
through her marriage and lost it when she divorced, that the Respondent
on the other hand has a permanent place of abode in Bugolobi, Kampala,
Uganda and since the children depend on the Respondent as their father,
they too have a domicile of dependence in Uganda and as such ought to
remain in his custody. For this, Counsel for the Respondent relied on the
case of Joy Kiggundu vs. Horace Awori, Divorce Cause No.8 of 1998,
where it was held that by law a dependant has the domicile of the person
on whom he /she depends.

b) Resolution of Ground 2:
Domicile has been defined as ‘the country that a person treats as their
permanent home, or lives in and has substantial connection with.’
(Cambridge Advanced Learners Dictionary). It is not a mere question
of citizenship or current residence; but rather, one’s fixed and permanent
place of abode with an intention not to leave. (See: Robinah Kagaya

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 Kiyingi vs. Dr. Aggrey Kiyingi High Court Civil Appeal No. 41 of
2004).
c) The Appellant before marriage, already as an Eritrean citizen, had
chosen to be domiciled in Uganda. While there is evidence that the
Appellant has a travel document issued by The United Kingdom of
Great Britain on 9/4/2013 with an expiry date of 9/4/2023 there is no
evidence that the Appellant is domiciled in the United Kingdom or that
she has British nationality. In fact the travel document indicates that the
Appellant’s nationality is Eritrean.

d) The Appellant states that she has secured a job in Kampala and is willing
to stay with and raise her children. This intention to permanently reside
in Kampala confirms domicile by choice. (See the Case of Robinah
Kiyingi vs. Dr. Aggrey Kiyingi, supra).

e) The attached documents include receipts for rent issued by one Kiyemba
Eriasi and a sworn affidavit showing that the Appellant currently resides
at Bakuli in Lubaga Division, Kampala; there is also a letter from
Ericom Import & Export Co. Uganda Ltd confirming the Appellant’s
appointment as an Office Administrator in the company.

f) The Learned Magistrate therefore erred when she based the evaluation of
domicile squarely on the Appellant’s citizenship which itself is not based
on evidence, and ignored the rest of the evidence on the file that might
have informed Court of the Appellant’s domicile by choice.

Ground 2 therefore succeeds.

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5.3. Ground 3:
The Learned Chief Magistrate erred in law in finding that the
Appellant is not financially capable of providing for the children
based on speculations rather than the evidence on record.

a) It was submitted for the Appellant that; much as the Respondent is

gainfully employed, the Appellant also has a job and that no evidence
was led to show that she was not financially capable of taking care of the
children. The Respondent contended that the evidence of the Appellant
having a job was smuggled in by attaching it to her affidavit in rejoinder
and that it did not even indicate how much she earns and that the said
letter should not be considered because it was not signed.

Resolution of Ground 3:
b) On Page 4, under paragraph 2, the Learned Chief Magistrate states that
the father of the children, being gainfully employed can maintain the
children adequately. The Learned Chief Magistrate did not make any
statements regarding the Appellant’s financial status or draw any
comparison thereto.

c) For any evaluation based on comparison, both sides of the coin must be
thoroughly evaluated to arrive at a decision that one is better than the
other. If financial capability was going to be a basis for the decision as to
whether custody should be given to either of the parents, the capabilities
of both should have been evaluated. I have perused the judgment but I
do not see any finding by the Learned Chief Magistrate to the effect that
the Appellant is not financially capable of providing for the children.

d) The above notwithstanding, Courts have held that financial capability is

not the key issue in custody matters. Parents hold the primary right to

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 custody of their children; and if the mother is both willing and able to
look after the child, she should not be deprived of this right based on her
financial status. (See the case of Rwabuhemba Tim Musinguzi vs.
Harriet Kamakume (Civil Application No. 142 of 2009) [2009] UGCA
34).

e) In my opinion the welfare principle governing decisions concerning

children would demand that financially capable parents must cater for
the needs of their children irrespective of where the children are, and
depending on the circumstances of each case. Indeed in all matters
relating to children, welfare is the paramount principle. (See: In the
matter of Deborah Joyce Alitubeera (Civil Appeal No. 70 of 2011)
[2012] UGCA 4). All other considerations fall back to the position of
mere guidelines compared to what will ultimately preserve and uphold
the children’s welfare.

f) The Learned Magistrate therefore erred in ranking financial capability as

a principal element in her decision, because the Respondent, who has
been providing financial support, would not be barred from doing so
even if the children were not in his custody.

Ground 3 therefore succeeds.

5.4. Ground 4:
The Learned Chief Magistrate erred in law in making findings that
the Appellant is of unpredictable character based on speculations
rather than on the evidence on record.
a) On page 3 (paragraph 7) of the Judgment by the Learned Chief
Magistrate, she states;
From the time the parties have appeared in court, the erratic and
unpredictable character leaves a lot wanting and the fact that children

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 are at an impressionable age, they should not constantly witness such
outburst.”

b) It was submitted for the Appellant that the character of the Appellant
was never an issue both at the trial court and on first appeal.

Resolution of Ground 4:

c) I have carefully studied the record of proceedings and I have not been
able to see where there was reference to the Appellant’s outbursts and
where such evidence was analysed. The character of the Respondent,
though pleaded was never supported by evidence and no analysis was
made.

d) The scope of consideration of an appellate court does not wander so far

out as to permit or consider fresh evidence, except in very extraordinary
circumstances; for instance where the evidence to be adduced was not
available at the trial, but the same is credible and relevant.

e) The evidence of the Appellant’s conduct in court was not part of the
evidence the Learned chief Magistrate ought to have considered; In the
case of Non Performing Assets Recovery Trust vs. SSR Nkabula &
Sons LTD CA No. 34 of 2005, it was held, among other things, that the
appellate court must make allowance for the fact that it did not have the
advantage of the trial judge of hearing and seeing the witness testify. On
a case touching on credibility of a witness, the impression made by the
trial judge should be respected by the appellate court unless there are
circumstances to justify departure. The Trial Magistrate did not address
issues of temperament. All the 1st Appellate court was called to do was
to evaluate evidence (emphasis supplied) and arrive at its own
conclusion.

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 f) In this case, commenting and deriving her basis for overturning the
judgment on account of temperament which was not part of the evidence,
amounts to error on the part of the learned Chief Magistrate.

Ground 4 therefore succeeds.

6. In conclusion, the Appeal succeeds.

It is ordered that;

i) The appeal be allowed;

ii) The Judgment and Decree entered for the Respondent against the Appellant by
the Learned Chief Magistrate in Civil Appeal No. 003 of 2016 be set aside;

iii) The Judgment and Orders of Her Worship Nambatya Irene in the Family and
Children Court of Mengo in Miscellaneous Application No. 129 of 2016 be
validated and restored;

iv) Custody of the children Delina Amanuiel Yemane now aged (6 years) and
Natnael Amanuiel Yemane (now aged 2 years) reverts to the Appellant
Selamawit Haile Tscgy Feven Habte Akolom;

v) The Respondent shall together with the Appellant provide for the needs of the
children;

vi) Each party shall bear their own costs.

Ketrah Kitariisibwa Katunguka

Judge

31/5/2018

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