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

AND

IN THE MATTER OF AN APPLICATION FOR SHELTER, CUSTODY, AND

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

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 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

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chief, unless he has been called by mistake and not examined in consequence of the mistake
being discovered.”

Counsel for the Appellant further noted that failure to cross-examine the Respondent’s
witnesses was a violation of Articles 28(1) and 44(c) of the Constitution of the Republic of
Uganda, 1995 on the right to a fair hearing and natural justice. And that the action of the trial
Magistrate tantamounted to usurping the Appellant’s right to legal representation. Thus, the
trial was a nullity and occasioned a miscarriage of justice to the Appellant and what was done
by the trial Magistrate was a mere mediation and neither were the persons’ who spoke during
this matter ever sworn nor cross examined.

Furthermore, that during mediation an agreement is reached and signed by the parties,
therefore there was no need for the trial Magistrate to make a judgement but rather an
agreement which was not the case in the instant matter.

Counsel for the Respondent on the other hand submitted that there was evidence received in
Court through the complaint on oath, the affidavits in support of the complaint, affidavit in
reply by the Appellant and the affidavit in rejoinder. That it is only the District probation
Officer, the Appellant’s sister and Cousin who gave evidence in Court.

Further, that the Appellant at all times did appear in Court with his Counsel. That during
submissions the Appellant replied in person and his Counsel did not raise any objections nor
did he apply to cross-examine any of the witnesses. That why would Counsel now bring up
this issue on appeal.

Secondly that the procedure in the family Court and in the instant case is that provided for in
the Children’s Act which is informal rather than adversarial. That in the instant case Court
followed both the formal and informal procedure and the parties and their witnesses were
adequately heard. Thus, no party was denied a right to be heard.

In my opinion, it is true that the procedure in the family Court is supposed to be as informal
as possible and I believe that is what happened in the instant case.

As regards the issue of cross-examining witnesses, Counsel for the Appellant was present
during all the hearings, why did he not apply to cross-examine these witnesses in Court but
rather chose to bring this up on appeal. If Counsel for the Appellant wished to cross-examine
any of the witnesses that appeared in Court he should have prayed do so during the hearing of
the matter.

I therefore find that there was no error committed by the trial Magistrate during the hearing of
this matter and no injustice was occasioned to the Appellant. No right to a fearing hearing or
natural justice was ever denied to the Appellant.

This ground fails.

Ground 2 and 3:

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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 for the Appellant noted that the manner in which the matter was handled was not
proper. That the trial Magistrate was not alive to the principles governing custody of children
as provided in Section 3 of the Children’s (Amendment) Act 2016 and Rules 1 & 3 of the
first schedule of the Children’s Act. And only considered the party who had the interim
custody, work of the Appellant and his marital status.

Section 3 and the first schedule of the Children Act provide that the welfare principle shall be
of paramount consideration when making decisions concerning children. The court shall in
particular have regard to the ascertainable wishes and feelings of the child concerned
considered in light of his/her age and understanding; the child’s physical, emotional and
educational needs; the likely effect of any changes in the child’s circumstances; the child’s
age, sex, background and any other circumstances relevant in the matter; any harm that the
child has suffered or is at the risk of suffering; and where relevant, the capacity of the child’s
parents, guardians or others involved in the care of the child in meeting his/her needs.

In the case of Anne Musisi versus Herbert Musisi [2008] KALR 594 it was held that the
principle of welfare of children is paramount and supersedes considerations such as who of
the parents has a superior right to the children. The welfare of the children is served better
where both parents are involved in the upbringing of the children.

Further, that the trial Magistrate did not put into consideration the wishes of the children,
their needs and the capacity of the parents. Thus, the separation of the two children from their
parents was a gross interference of their right to family provided in Article 31(4) and (5) of
the Constitution.

Secondly, that the trial Magistrate grossly misdirected himself when he installed the
Respondent and the two children in the family home and ordered the Appellant and his other
children to vacate their family home within 10 days. That this decision was unconstitutional
since it interfered with the Appellant’s and his other children’s right to shelter under Article
26 of the Constitution of the Republic of Uganda, 1995. That the trial Magistrate also had no
jurisdiction to adjudge land and house to any of the parties before him in the matter for
shelter, custody and maintenance as was held in Nekesa Edisa versus Wogongoba William
& Another, HCT – 04 – CV – CR – 0013 of 2012.

Counsel for the Appellant prayed that this Court finds that the above order was a nullity and
of no legal consequence since the trial Magistrate lacked the jurisdiction to grant land/house
to the Respondent in a matter to do with custody, shelter and maintenance. In the
circumstances this was an illegality that Court should not pay a blind eye to.

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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

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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.

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 3. James – Court Clerk.
4. The Respondent.

In the absence of the Appellant.

......................................

OYUKO. ANTHONY OJOK

JUDGE

23/03/2017