ROUND TWO: HOW NAGIDDE THUMPED TYCOON MWASA IN CHEATING CASE, INCHED CLOSER TO HUSBAND’S PROPERTIES
By Mulengera Reporter
Three Justices of the Court of Appeal have unanimously nullified a High Court judgement that had granted controversial money bags Charles Steven Mwasa and wife Rebecca Nagidde divorce and given the tycoon exclusive rights over children, the matrimonial home and properties worth billions.
The judgement in the appellant court saw Nagidde, a top city banker, knock out Mwasa in the second round of their fight over land, houses and shares in several companies jointly and severally owned.
The ruling made recently means that the couple will face each other again in third round of their case in the same court that had dissolved their marriage – and most likely before Justice David Matovu, the same judge into whose judgment the Court of Appeal has punched holes.
On the same date the three-judge bench unanimously ordered a retrial of the Mwasa-Nagidde divorce case, Principal Judge Dr Flavian Zeija announced he had transferred Justice Matovu from the High Court in Fort Portal to head the Family Division of High Court in Kampala.
THE COURT OF APPEAL RULING
Agreeing with Nagidde’s lawyer Jude Byamukama that Matovu had flouted rules of procedure that require the two parties to adduce evidence as stated in Order 18 of the Civil Procedure Rules, Justices Steven Musota, Remmy Kasule and Frederick Egonda-Ntende threw the High Court Judge’s decision in the dustbin of court history over procedural mistakes.
Byamukama and Nagidde had argued that the trial judge, without explaining his departure from the rules, had directed the parties’ lawyers to file written submissions, a procedure Byamukama described as “alien” to common law. Without hearing the parties, further reasoned Byamukama, no trial had taken place.
Mwasa’s lawyer Deus Nsengiyunva had argued that there was a trial, but Nagidde had chosen not to testify in court. But Nsengiyunva admitted that there was no trial on the issue of divorce although the parties had consented to the dissolution of the marriage.
“It is evident that the trial court failed to conduct a full and proper trial. Courts are supposed to pronounce judgement only after the case has been heard, based on the evidence adduced in the case, and the applicable law, unless the parties have agreed to the facts that resolve the issues between them by consent,” ruled the judges.
“No trial was conducted prior to entering the decree nisi [an order by a court of law stating the date on which a marriage will end unless a good reason not to grant a divorce is produced] which was allegedly granted on the basis of consent by the parties.”
They further ruled that Matovu’s judgment was null and void since no evidence had been adduced in court and no witnesses had been invited to give evidence relating to any issues that were resolved by the trial court.
“There was no admission by the respondent of relevant facts upon which the ground put forth for divorce could have been said to have been proved. The appellant was not given an opportunity to give her evidence in court and there is no evidence that she waived her right,” submitted the judges.
“The learned trial judge put some questions to the respondent upon being sworn in but he was neither examined in chief nor cross examined. Parties are entitled to state their case in court through an oral trial which was not afforded in this case. There was simply no trial. The resultant judgement was null and void.”
The High Court case was filed in 2016 and determined by Justice Matovu on February 20, 2018. In the suit, Nagidde had sued Mwasa and a woman she accused of committing adultery with her husband and producing a child as a result. Nagidde wanted the marriage, solemnised on November 29, 2008 at All Saints Cathedral in Kampala, dissolved on grounds of Mwasa’s adultery and cruelty.
Mwasa denied the charge of adultery, but filed a cross petition seeking an order of dissolution of marriage on the ground of cruelty (that Nagidde had literally rained blows on him). The woman accused of committing adultery with Mwasa admitted having been in a relationship with the tycoon and producing a child with him. This woman was not made a party to the appeal determined by Musota and his colleagues.
Justice Matovu had ruled that “there were irreconcilable differences between the petitioner and the respondent and concluded, on its own, that the marriage between the two was irretrievably broken down.”
Consequently, Matovu had asked the couple’s lawyers to present a decree nisi for his signature on September 13, 2017 for his signature. This was done and the marriage was dissolved.
But the Court of Appeal Justices ruled that however “attractive” the ground of irreconcilable differences might be, it remained outside the court’s jurisdiction “until the Divorce Act was amended or a new law promulgated” to include it. The current laws only allow divorce on grounds of adultery and cruelty, which grounds Matovu did not give the parties a chance to prove in court.
CUSTODY OF CHILDREN
The next thorny issue in the Mwasa-Nagidde case touched on the custody of children, Timothy Mwasa (8), and Christian Wamai (12). Matovu had handed Mwasa primary custody rights over Mwasa Jr and Wamai, allowing Nagidde to see her children once a month “upon adequate notice” to Mwasa.
But Nagidde challenged Matovu’s ruling that restricted her right to see her children once a month. She also rejected the order that required her to give “adequate notice” to Mwasa before being allowed to see her children.
Byamukama asked the Court of Appeal to grant Nakidde more access to her children since “both parents are entitled to have a say in the upbringing of their children and the visitation right of once a month granted to the appellant doesn’t allow her to live with her children.”
PROPERTIES AT STAKE
The Court of Appeal decision has now upset Mwasa’s plot to keep Nagidde’s hands of his prime properties scattered around Kampala and its suburbs.
Matovu had given Mwasa “exclusive possession of the couple’s matrimonial home” located at Block 220 Kyadondo, plots 1942 and 1946 in Kiwatule. He had also ordered him “to pay half the value of the property to the appellant within six months after valuation”, since the property was jointly owned. Matovu had further ruled that severally owned properties “remain the exclusive properties of the respective owners”. For other properties jointly owned by the duo, either of the parties were to pay half of the value of the property to the other within six months after the Chief Government Valuer hadgiven his valuation. High Court had also ordered Mwasa to pay Nagidde the percentage of shares she owned in the company upon valuation of the company’s assets.
But Nagidde had argued that Matovu’s directive to give Mwasa exclusive rights to their matrimonial home would deny her access – more so if the tycoon paid her half of its value.
She had also questioned the mode of valuation of the property in contention as well as Matovu’s and court’s failure to verify if properties at Kyadondo Block 220 Plot 808 at Kiwatule, 3(b) Unit 53 Condominium Plan, number 0051 Block B, Plot 2A-3A Luthuli Close Bugolobi, Block 1552 at Kyadondo, and Block 228, Plot 1513 at Mbalwa were matrimonial property.
Nagidde further reasoned that Matovu had erred in law and fact by giving Mwasa the prerogative to value the assets in Candy Investments Limited and give her the money that make up 30 per cent of the shares she owns in the company.
According to the Court of Appeal decision, Matovu’s determination on the sharing of properties and the custody of children are as null and void as his entire ruling and dissolution of marriage.
The banker now has a chance to be heard since, together with her lawyers, she is expected to prove that Mwasa committed adultery or acts of cruelty that warrant a divorce before pushing for the listing, valuation and verification of all properties, including over 20 posh apartments, she acquired with her husband, the 43-year old Mulago Hospital accountant who has amassed so much wealth off his Shs1.5m monthly salary in the past 17 years.