case law judgments passed in the jurisdiction of Uganda , Study notes of Law

Download case law judgments passed in the jurisdiction of Uganda and more Study notes Law in PDF only on Docsity! THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL HCT – 00 – CV – CA – NO. 003 OF 2016 (Arising from FPT – 00 – CV – FCC – 019 of 2016) IN THE MATTER OF NDAMUSIMANTA GEORGIA AND MUGISA GEORGE WILLIAM (CHILDREN) AND IN THE MATTER OF AN APPLICATION FOR SHELTER, CUSTODY, AND MAINTENANCE OF THE ABOVE MENTIONED CHILDREN BAGUMA GEORGE WILLIAM................................................................APPELLANT VERSUS MBABAZI MARIA GORRETI...............................................................RESPONDENT BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO. ANTHONY OJOK, JUDGE Judgment This is an appeal against the decision of His Worship Ngamije Mbale Faishal, Magistrate Grade 1 at Fort Portal delivered on 3/3/2016. Background The two parties had a misunderstanding which led to the arrest of the Respondent. Whereof the Appellant evicted the above children and took them to the Respondent’s relative. The Respondent was later released but could not go back to her original residence because the Appellant had abandoned the same and had locked up the place. The Respondent then instituted a matter by a Complaint on Oath for custody, shelter, and maintenance, of the above children. The lower Court granted custody to the Respondent for 4 years and 9 months and to be looked after in the house which the Appellant resided with his other children. The Court ordered for eviction of the Appellant and his other children from the house within 10 days from the date of judgment. The Appellant being aggrieved with the above decision lodged the instant appeal whose grounds are; 1. That the decision, judgment and orders given by the learned trial Magistrate Grade1 are null and void in as far as they are a result of procedure entirely unknown by the 1 law in so far as the learned trial Magistrate Grade 1 proceeded to write and deliver a judgment without hearing any evidence by and from the parties or their witnesses or even allowing Counsel for either party to test the alleged testimony he relied on in reaching his decision. 2. That the learned trial Magistrate Grade 1 erred in law in granting custody of Ndamusimanta Georgia and Mugisa George William to the Respondent. 3. That the learned trial Magistrate Grade 1 erred in law and in fact in ordering that the Respondent exercises custody over the children in the house now occupied by the Appellant and his said three children to vacate their residential house within ten days from the date of judgment or be evicted therefrom. Counsel Kateeba Cosma appeared for the Appellant and Counsel Musinguzi Bernard for the Respondent. By consent both parties agreed to file written submissions. It is the duty of the first Appellate Court to appreciate the evidence adduced in the trial court and the power to do so is as wide as that of the trial court. Where the trial court had resorted to perverse application of the principles of evidence or show lack of appreciation of the principles of evidence, the Appellate Court may re-appreciate the evidence and reach its own conclusion. (See:  Pandya versus Republic [1957] EA 336, Kifamunte Henry versus Uganda Criminal Appeal No.10 of 1997 Page 5(Supreme Court). Resolution of Grounds Ground 1: That the decision, judgment and orders given by the learned trial Magistrate Grade1 are null and void in as far as they are a result of procedure entirely unknown by the law in so far as the learned trial Magistrate Grade 1 proceeded to write and deliver a judgment without hearing any evidence by and from the parties or their witnesses or even allowing Counsel for either party to test the alleged testimony he relied on in reaching his decision. Counsel for the Appellant submitted that in the instant case there was no opportunity offered for Counsel to cross-examine the witnesses that testified and these witnesses were for the Respondent. That it is trite law that every party to a suit is entitled to cross-examine the other party’s witnesses and in instant case this right was violated. In the case of Triloknath Bhandari & Another versus S. R Gautama [1964] 1 E.A 606, it was held that; denial of the right of the Appellant’s Counsel to cross-examine the Respondent on vital issues rendered the trial unsatisfactory. The Court also quoted with approval Halsbury’s Laws of England, 3rd Edition Volume 15 Page 443-444 thus, “Any party is entitled to cross-examine any other party who gives evidence or his witnesses, and no evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination... A witness, once sworn, is liable to be cross-examined, even though he has not given evidence or been asked any question in 2 Thirdly, that the Probation and Welfare Officer’s Report though she was not cross examined over it clearly stated that the Appellant’s residence was unfit for the two children. That why would the trial Magistrate then go ahead and order that the children be brought in an unfit environment yet they were leaving in a better environment and the Appellant could look after them from there. Counsel for the Appellant accordingly prayed that the decision of the lower Court be set aside and custody of the children be granted to the Appellant and the Respondent be ordered to contribute to the maintenance of the said children until they reach 18 years or complete school whichever come later. Counsel for the Respondent on the other hand submitted that the trial Magistrate was right in ordering the Respondent and the children back to the house since the Appellant had no legal right to evict the children who had no fault and therefore it was illegal. That, in the circumstances the children are entitled to return to their home with their mother since they were illegally evicted and their home locked out by the Appellant. Counsel for the Respondent noted that all the evidence that was given in Court was pointing to the fact that the Respondent was the suitable person to look after the children. The Appellant even threatened the children before Court which was noted by the trial Magistrate in his judgment. Finally, that the best place for the children to be looked after is the home they grew up in and the Respondent is the suitable person to look after the children. The Appellant had left the family home and was residing with his sister as per his affidavit, implying that he has alternative accommodation. Counsel for the Respondent prayed the terms can be varied after 4 years as per the prayer of the Respondent and she be granted custody and the Appellant contributes to their education and maintenance until the situation is reviewed after 4 years. In my opinion, I find no fault in what the trial Magistrate did, and the welfare of the children was taken care of. The trial Magistrate was mindful of the fact that the children’s needs and in his judgment he did mention that when the children were asked whom they wished to stay with, they expressly stated that their preference was with the Respondent. In the case of Samwiri Massa versus Rose Achen [1978] HCB 297, Justice Ntagoba observed that; “It’s trite law that where issues of custody of child is between the father and its mother and taking into account the paramount interest of the child, custody of such child, especially when it’s of tender years must be granted to the mother…” I also note that the conduct of the Appellant is wanting for someone who can threaten his own children before Court and then has the audacity to ask for their custody. The same Appellant evicted his children from his family home and abandoned the same when the 5 Respondent was in prison. I am inclined to concur with the submissions of Counsel for the Respondent and I find that the Respondent is the fit person to have custody of the children. I therefore, uphold the decision of the lower Court and this appeal is dismissed without costs for purposes of harmony. In the case of Prince J. D. C Mpuga Rukidi versus Prince Solomon Kioro and Others, Civil Appeal No. 15 of 1994 (S.C), it was held that; “That however, where Court is of the view that owing to the nature of the suit, the promotion of harmony and reconciliation is necessary, it may order each party to bear his/her own costs.” Right of appeal explained. ...................................... OYUKO. ANTHONY OJOK JUDGE 23/03/2017 Further orders: 1. The Appellant is granted visiting rights over the weekends and during holidays if he so wishes and this should be done with prior notice to the Respondent. ...................................... OYUKO. ANTHONY OJOK JUDGE 23/03/2017 Judgment read and delivered in open Court in the presence of; 1. Counsel Cosma Kateeba for the Appellant. 2. Counsel Musinguzi Bernard for the Respondent. 6 3. James – Court Clerk. 4. The Respondent. In the absence of the Appellant. ...................................... OYUKO. ANTHONY OJOK JUDGE 23/03/2017 7