Wakilii

Busingye v Mukisa (High Court Civil Appeal 2 of 2019)

High Court · [2023] UGHCFD 37 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Chief Magistrate's Court decree in divorce proceedings concerning division of matrimonial property
Decision
Appeal allowed; trial Magistrate's orders set aside; Karukwerezi land to be shared equally between the parties

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court allowed the appeal and set aside the trial Magistrate's order directing the respondent to purchase land elsewhere for the appellant. The court held that the land at Karukwerezi was matrimonial property based on the appellant's unchallenged evidence of contribution to its purchase, while the land at Rutooma was inherited family property not subject to division. The trial Magistrate erred by relying on evidence introduced at locus in quo regarding bride price proceeds, which was not part of the court record, and by basing findings on counsel's submissions rather than evidence. The court ordered the Karukwerezi land to be shared equally between the parties in a 50:50 ratio.

Outcome

Appeal allowed; trial Magistrate's orders set aside; Karukwerezi land to be shared equally between the parties

Facts

The appellant and respondent were married on 9 September 1979. In 1998, the respondent left the matrimonial home. The appellant petitioned for divorce, seeking dissolution of marriage and division of property. The respondent cross-petitioned, also seeking dissolution but opposing property division. During the marriage, the parties acquired land at Karukwerezi which the appellant testified she contributed UGX 500,000 towards purchasing for UGX 1,000,000. The respondent also held land at Rutooma which housed the matrimonial home but which he testified was inherited from his father and shared with his brothers. The trial Magistrate granted dissolution and ordered the respondent to purchase land of not less than three acres elsewhere for the appellant, finding the Karukwerezi land was acquired from bride price proceeds and that the appellant could not safely settle on either property due to proximity to threatening in-laws. The appellant appealed, arguing the trial Magistrate failed to properly evaluate evidence and based findings on matters not raised at trial.

Issues

  1. Whether the trial Magistrate erred in law and fact when he failed to evaluate the evidence on record hence reaching a wrong decision.
  2. Whether the trial Magistrate erred in law and fact when he based his decision on fanciful theories, personal imaginations and extraneous matters which were not raised at trial.
  3. Which property constituted matrimonial property liable to division between the parties.
  4. What was the appropriate division of matrimonial property between the parties.

Orders

  • Appeal allowed.
  • Ruling and orders of the learned trial Magistrate set aside.
  • The land to be shared by the parties is that situate at Karukwerezi, Kyamurarani, Bugongi Sheema district.
  • The land shall be shared in a ratio of 50% with each party taking an equal share of it.
  • Each party shall bear their own costs for the appeal and in the lower court.

Rules and key headnotes

Family Law — Matrimonial Property — Definition and Identification
Matrimonial property is that property which the parties chose to call home and which they jointly contributed to. Property acquired separately by each spouse before or after marriage, or property held in trust for the clan, should be considered differently and is not automatically subject to division upon divorce.
Family Law — Matrimonial Property — Burden of Proof of Contribution
Where a party's evidence of contribution to the acquisition of property is not challenged in cross-examination, the court will infer that the evidence is accepted, subject to it being assailed as inherently incredible or probably untrue, and the property will be found to be matrimonial property.
Family Law — Matrimonial Property — Inherited Property
The presumption that property which parties chose to call home will be considered joint matrimonial property is rebuttable. Where unchallenged evidence establishes that land was acquired through inheritance and has equitable interests of other family members, it is not matrimonial property subject to division upon divorce.
Evidence — Locus in Quo — Proper Use and Limitations
A visit to the locus in quo is only meant for the court to check on evidence already given by the parties in court and not to substitute that evidence or add to it. It is a visual demonstration of evidence already on the court record. It is an error for a trial court to rely on new evidence introduced at locus in quo to make findings when the court record contains different evidence on the same point.
Evidence — Submissions of Counsel — Not Evidence
Submissions of counsel cannot take the place of evidence. Submissions are parties' arguments endeavoring to convince the court, but they do not constitute evidence. A court cannot base its findings on inferences drawn from counsel's submissions where those matters were not part of the evidence on the court record.
Civil Procedure — Appeals — Duty of First Appellate Court
A first appellate court is duty bound to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. The appellate court may interfere with a finding of fact if the trial court overlooked any material feature in the evidence or failed to take account of particular circumstances or probabilities materially affecting the estimate of the evidence.

Legislation cited (1)

Cases cited (12)

  • Father Nanensio Begumisa and three others v Eric Tiberaga (Supreme Court Criminal Appeal No. 17 of 2000)
  • Lovinsa Nankya v Nsibambi [1980] HCB 81
  • Nyero v Olweny and Ors (Civil Appeal No. 50 of 2018)
  • Kaggwa v Ampire (Civil Appeal No. 126 of 2019)
  • Rwabinumi v Bahimbisomwe (Civil Appeal No. 10 of 2009)
  • Muwanga v Kintu (High Court Divorce Appeal No. 135 of 1997)
  • Uganda Revenue Authority v Mabosi (Civil Appeal No. 26 of 1995)
  • William Mukasa v Uganda (1964) EA 698
  • Bangole Geofrey & 4 Ors v Agnes Nakiwala (Civil Appeal No. 076 of 2015)
  • David Acar & 3 Ors v Alfred Acar Aliro [1982] HCB 60
  • Daniel Toroitich Arap Moi and another v. Mwangi Stephen Murithi and another [2014] eKLR
  • Ambayo Joseph Waigo v Aserua Jackline (Court of Appeal Civil Appeal No. 100 of 2015)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Busingye v Mukisa (High Court Civil Appeal 2 of 2019) [2023] UGHCFD 37 (31 August 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.