Court name
HC: Family Division (Uganda)
Case number
Divorce Cause 44 of 2017
Judgment date
17 May 2019
Title

Naomi Achieng Odongo v Nobert Mao (Divorce Cause 44 of 2017) [2019] UGHCFD 115 (17 May 2019);

Cite this case
[2019] UGHCFD 115
Coram
Namundi, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT UGANDA AT KAMPALA

(FAMILY DIVISION)

DIVORCE CAUSE NO. 44 OF 2017

 

NAOMI ACHIENG ODONGO   ::::::::::  PETITIONER/CROSS RESPONDENT

 

VERSUS

 

NORBERT MAO         :::::::::::::::::::       RESPONDENT/CROSS PETITIONER

 

BEFORE: HON JUSTICE GODFREY NAMUNDI

 

JUDGMENT

This is a Petition for divorce filed by the petitioner Naomi Achieng Odongo against the Respondent Norbert Mao for a decree that the marriage between her and the Respondent be dissolved, and Orders:

  • For sole custody of the issue of the marriage and the Respondent to be given access,
  • Maintenance for the children of the marriage,
  • The Respondent to hand over ownership of motor vehicle Registration Number UAH 437 Z,
  • The properties Plot 58 valley Drive Ministers Village, Ntinda and that located at senior quarters in Gulu to be registered in the names of the Petitioner, that the respondent keeps all other property,
  • Such other reliefs court may deem fit.

The Respondent filed a reply and across petition

The Petitioner petitioned this court for dissolution of marriage on grounds that the marriage had irretrievably broken down following the acts of cruelty by the Respondent.

In reply to the petition, the Respondent contested the allegations of cruelty and cross petitioned for divorce on grounds that the cross-petitionRespondent had deserted the matrimonial home hence leading the marriage to irretrievably breakdown.

In her rejoinder, the Petitioner reaffirmed her assertions that the Respondent/cross-petitioner was cruel towards her leading to the breakdown of the marriage.

The background is that the petitioner was lawfully married to the respondent in a civil marriage at the registry of marriages on 8th August 2003.

The Petitioner and Respondent lived and cohabited together at Plot 58 Valley Drive Ministers Village, Ntinda, Kampala and begot two issues to the said marriage namely;-

  1. Nicholas Hope Mao aged seventeen (19) years old.
  2. Nathan Hale Rwotber Mao aged thirteen (14) years old.

While at Scheduling the parties agreed on the following facts: -

  1. That the parties were lawfully married on August 8th 2003 at the Civil Registry under the Marriage Act cap 251
  2. That during the subsistence of the marriage the parties had two (2) issues to wit;
  1. Nicholas Hope Mao aged nineteen (19) years old.
  2. Nathan Hale Rwotber Mao aged fourteen (14) years old.
  1. That the parties had resided at Makerere Kikoni, Plot 60 Valley Drive, Ntinda, Mutesa II Road, Ntinda New Market, New Haven, Connecticut USA, Kampala Road Apartment and Ministers Village during the subsistence of the marriage.
  2. That the parties have been living apart for over eight (8) years. The Respondent has solely been in custody and care of the issues to the marriage with the Petitioner having visitation and times with the issues occasionally.
  3. That the marriage between the parties has irreconcilably broken down and there is no hope of reconciliation and the marriage should be dissolved.

Resolution of court

The Petition and cross petition are based on the grounds of cruelty and desertion respectively. Cruelty and desertion as grounds for divorce are provided for under Section 4 of the Divorce Act Cap 249.

Desertion constitutes unjustifiable withdrawal from cohabitation without the consent of the other spouse and with the intention of remaining separate permanently. In the case of Lang Vs Lang (1954) 3 ALL ER 571 it was stated;

“To establish desertion two things must be proved: first certain outward and visible conduct- the factum of desertion and secondly the “animus deserindi”- the intention underlying this conduct to bring the matrimonial union to an end. In ordinary desertion the factum is simple: it is the act of the absconding party in leaving the matrimonial home. The contest in such a case will be almost entirely as to “animus”. Was the intention of the of party leaving the home to break it up for good, or something short of, or different from that.”

Section 4 of the Divorce Act requires that the desertion be for two years or upwards.

The evidence before this court shows that the Petitioner and Respondent have been living separately for eight (8) years, the Respondent having absconded from the matrimonial home, living the Petitioner with the issues of the marriage.

In the case of Veronica Habyarimana Vs Habyarimana (1980) HCB 139, it was held;

“There is no definition of cruelty in the Divorce Act but case law has established that no conduct can amount to cruelty unless it has the effect of producing actual or apprehended injury to the petitioner’s physical and mental health. There must be danger to life, limb or health, bodily or mental or reasonable for it for to constitute cruelty.”

In this case, there was no evidence adduced to support the allegations of the Petitioner that the Respondent was cruel towards her. However, the courts are required to look at the facts in totality to determine whether a marriage has irretrievably broken down. (See case of Julius Chama V Specioza Rwalinda Mbabazi Divorce Cause No25/2011).

Looking at the facts of this case in totality and the evidence of the Petitioner, it is evident that the marriage between the Petitioner and Respondent has irretrievably broken down.

The issues framed at scheduling for court’s determination are;-

  1. How should the property be distributed between the parties?
  2. Who should be granted custody of the minor to the marriage Nathanal hale Rwotbar?

According to the submissions of counsel the only matter in contention is the distribution of Plot 58 Valley drive located at Ministers Village Ntinda.

Petitioner’s Evidence

The petitioner/ cross respondent testified in court that she contributed tobuilding the house at Ntinda, bought wad ropes, cabinets and other properties. Whilethey were still cohabiting, they bought a neighboring house from a one Mr Awuzu. Who gave them the land title and told them to pay. That the property was registered in their names on 27th August 2002, and they legally got married in 2003. That she only wants her share in the property in plot in Plot 58 at Ntinda that proceeds from her half will enable her acquire property where she can meet with her children

She stated in cross examination that the property was bought in 2002. The Respondentbeing the head of family handled the transaction and bought the property on behalf of the family.

She further stated that she has no problem if the property is rented out for the children’s school fees (until they are done with school) and that she will get her share after.

Respondent’s evidence

The respondent stated in court that, the only house he purchased and developed is plot 58 Ntinda. That while registering the property. He thought of his life as a politician in Uganda and being a legal aid lawyer at the time, he saw widows being dispossessed. Then decided that, he and the petitioner becomes tenants for the sake of the family. That together with the petitioner negotiated the purchase and Engineer Andraule Awuzuaccepted to sell the house for UgSh 35,000,000/=. The respondent paid the first installment of 20,000,000/= (twenty millions) out of his salary as a member of parliament. That upon payment of balance of 15,000,000/= (fifteen millions) Awuzu signed the transfer papers. That the agreement is in the names of the respondent but he added the petitioner on the title for the reasons he stated above. He paid a total of UgSh 35,000,000/=. The house was unroofedat that time. He took a mortgage from DFCU Bank of UgSh 60,000,000 and later an additional loan from centenary Bank. They both signed the documents but he paid the mortgage alone which he cleared in 2007from his parliamentary gratuity. That the house should be left for the two children as their source of income. For he has a planof acquiring another residence in 3-4 years’ time.That children solely depends on him including Nicholas who’s 19 years.

He stated in cross examination that he wants the property to be for the children (solely) that it will guarantee their income and that at the moment he does not have any other place to live.

He further stated in re-examination that the interest of the children is that they need the property for their welfare

Submissions by counsel

On issue one Learned Counsel for the petitioner submitted that Plot 58 valley drive Ntinda amounts tomatrimonial property the petitioner’s name being on the certificate of title andthat is she is entitled to a share in the property.

That the petitioner actively participated in acquiring all the properties and maintaining them. Thus her contributing as wife and companion to the respondent, although not monetized it is recognized as tangible contribution to the matrimonial wealth. She went on to say that the petitioner also provided support and care to the respondent, she looked after the respondent during political career, whenever he fell sick, was with him during campaigns, cooked for him and took care of the children. Counsel relayed her submissions on the cases of Rwabinumi Vs Bahibisomwe Civil Apeal No. 10 of 2009 and Kagga Vs Kagga HC divorce cause No. 11/05

She further submitted that the petitioner’s preference is to be awarded a share out of the property comprised of LRV 2505 Folio 16, plot 58 valley Drive Ntinda minsters village. That she wants the house to be rented out so that her children can go to school. That she is willing to wait and get her share in the property after the issue of the marriage complete school.

According to counsel for the Respondent. The Respondent purchased the property from his own saving as a Member of Parliament by obtaining a mortgage facility with DFCU Bank and additional loan from Centenary Development Bank. Counsel argued that the Petitioner made no contribution to the purchase of the property. That the petitioner stated that she made a contribution to building the house by building tiles, wardrobes and designing the interior of the property but did not adduce documents to prove the claim. That she further claimed to have taken care of the respondent whenever he was sick but she did not provide any timeline and how she cared for him not even a witness to support her.

Decision of court

Then the issue as to how should the property be distributed between the parties from the submissions of both counsel and the authorities provided there seems to be a contention as to whether property in Plot 58 Valley Drive Ntinda Ministers village amounts to matrimonial property and whether the petitioner is entitled to a share in the said property.  I clearly believe the property is indeed a matrimonial property see John Tom Kintu Mwanga v. Myllious GafafusaKintu (Divorce Appeal No. 135 of 1997) and thus the respondent is entitled to share but the facts before this court indicate that the Respondent and the children are residing in this property. That the Respondent provides for the children’s school fees and general welfare.

According to Section 3 of the Children Act Cap 59, the welfare principle and the children’s rights set out in the 1st schedule shall be the guiding principles in making any decision concerning children. In the case of In Re M (an infant) Supreme Court Civil Appeal 22/1994, the court stated that the welfare of the child should be looked up in the widest possible sense.

The fact that the Respondent accepted to relinquish all his interests in and transfer to the Petitioner property located at senior quarters, Gulu Municipality Plot 14 kitgum Road and to have other motor vehicle registration Number UAH 437 Z.

And in the best interest of the child Nathan Hale Rwotber Mao. The Respondent continue occupying the house comprised in Plot 58 Valley Drive located at Ministers Village Ntinda with the children occupying the house comprised inPlot 58 Valley Drive Ntinda Ministers village with the children for a period of 3 years.

The petitioner and Respondent shall transfer their interests in the property comprised in Plot 58 Valley Drive located at Ministers Village Ntinda to the children of the marriage namely NICHOLAS HOPE MAO AND NATHAN HALE RWOTBER MAO who will jointly own it.

As to the issue of the custody of the minor Nathan Hale Rwotber Mao, the parties agreed to have joint custody of the minor with the Respondent having primary custody and the Petitioner having reasonable access.

In consideration of the best interests of the child, I find this arrangement proper since the Respondent has been having custody of the minor and it would not be proper to alter the environment the minor is used to.

I accordingly order as follows.

  1. A decree Nisi is hereby entered dissolving the marriage between the Petitioner and the Respondent.
  2. The Petitioner and Respondent are granted joint custody of the minor NATHAN HALE RWOTBAR, with the Respondent having primary custody and the Petitioner having visitation rights upon sufficient notice to the Respondent.
  3. The Respondent shall continue occupying the property comprised in Plot 58 Valley Drive located at Ministers Village Ntinda with the children for a period of 3 (three) years.
  4. The petitioner and respondent shall transfer their interests in the property comprised of LRV 2505 Folio 16  Plot 58 Valley Drive located at Ministers Village Ntinda to the children of the marriage namely NICHOLAS HOPE MAO AND NATHAN HALE RWOTBER MAO who will own it jointly.
  5. This being a family matter, I make no order as to costs.

 

GODFREY NAMUNDI

JUDGE:

DATE: 17th May, 2019