Wakilii

Selamawit & Another v Amanuile & Another (Civil Appeal No. 22 of 2017)

High Court · [2018] UGHCFD 17 · 2018 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from Chief Magistrate's Court decision reversing trial court custody order
Decision
Custody of the two minor children restored to the appellant mother with shared financial responsibility for their needs

Observed later treatment

Cited — treatment unverified cited in 2 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 2 times with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court allowed the appeal, holding that the Chief Magistrate erred in failing to properly re-evaluate evidence and made findings on domicile, financial capability, and temperament based on speculation rather than evidence. The court held that domicile is determined by fixed and permanent place of abode with intention not to leave, not mere citizenship; that financial capability is not the key issue in custody matters where the welfare principle is paramount; and that an appellate court cannot consider fresh evidence such as conduct in court not part of the trial record. Custody of the children was restored to the appellant mother.

Outcome

Custody of the two minor children restored to the appellant mother with shared financial responsibility for their needs

Facts

The appellant and first respondent are divorced parents of two children aged 6 and 2 years. On 10 September 2015, while the appellant was out of the country, the Family Court granted custody of the children to the first respondent and his sister (second respondent) via Family Cause No. 9 of 2015. Upon her return, the appellant applied for revocation of the custody order on 26 March 2016 via Miscellaneous Application No. 129 of 2016, which was granted by the trial magistrate with visitation rights to the first respondent. The respondents appealed to the Chief Magistrate's Court, which reversed the trial court decision and restored custody to the respondents on grounds that the appellant was not domiciled in Uganda, was not financially capable, and was of unpredictable character. The appellant then filed this second appeal to the High Court Family Division.

Issues

  1. Whether the first appellate court failed to properly re-evaluate evidence warranting the second appellate court to evaluate evidence and arrive at its own conclusion
  2. Whether the appellant is domiciled in Uganda and thus capable of taking care of the children
  3. Whether the appellant is financially capable of providing for the children
  4. Whether the finding that the appellant is of unpredictable character was based on evidence

Orders

  • Appeal allowed.
  • Judgment and decree entered for the respondent against the appellant by the Chief Magistrate in Civil Appeal No. 003 of 2016 set aside.
  • Judgment and orders of the Family and Children Court of Mengo in Miscellaneous Application No. 129 of 2016 validated and restored.
  • Custody of the children Delina Amanuiel Yemane (aged 6 years) and Natnael Amanuiel Yemane (aged 2 years) reverts to the appellant Selamawit Haile Tscgy Feven Habte Akolom.
  • The respondent shall together with the appellant provide for the needs of the children.
  • Each party shall bear their own costs.

Rules and key headnotes

Civil Procedure — Appeals — Second Appellate Court — Duty to Re-evaluate Evidence Where First Appellate Court Failed
A second appellate court has jurisdiction to re-evaluate evidence and arrive at its own conclusion where the first appellate court failed to properly re-evaluate the evidence, as such failure constitutes an error justifying interference by the second appellate court.
Civil Procedure — Evidence — Re-evaluation on Appeal — Standard and Method
Evidence is properly evaluated by outlining the known facts of a case, extracting issues therefrom, and resolving such issues in relation firstly to the given facts and evidence on file and secondly to the position of the law, whereafter a clear conclusion must be drawn regarding each issue. An appellate court has a duty to review the evidence, reconsider the materials, and make up its own mind, disregarding the judgment appealed from but carefully weighing and considering it.
Family Law — Custody — Domicile — Definition and Determination
Domicile is defined as the country that a person treats as their permanent home or lives in and has substantial connection with. 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. Domicile by choice is established where a person has secured employment and expressed willingness to permanently reside in a jurisdiction and raise their children there.
Family Law — Custody — Financial Capability — Relevance to Custody Determination
Financial capability is not the key issue in custody matters. Parents hold the primary right to 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. Where the welfare principle is paramount, financially capable parents must cater for the needs of their children irrespective of where the children are.
Family Law — Custody — Welfare Principle — Paramountcy in Decisions Concerning Children
In all matters relating to children, welfare is the paramount principle. All other considerations fall back to the position of mere guidelines compared to what will ultimately preserve and uphold the children's welfare.
Civil Procedure — Evidence on Appeal — Fresh Evidence — Scope of Appellate Court Consideration
The scope of consideration of an appellate court does not permit consideration of 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. An appellate court cannot base its decision on evidence of a party's conduct in court which was not part of the trial evidence.
Civil Procedure — Appeals — Credibility of Witnesses — Deference to Trial Court
An 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.

Legislation cited (4)

Cases cited (16)

Cases citing this judgment (2)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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

Selamawit & Another v Amanuile & Another (Civil Appeal No. 22 of 2017) [2018] UGHCFD 17 (31 May 2018)
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.