[2004] UGCA 21

## **THE REPUBLIC OF UGANDA**

## **IN THE COURT OF APPEAL OF UGANDA**

## **AT KAMPALA**

#### *CORAM*: *HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. MR. JUSTICE S. G. ENGWAU, JA HON. LADY JUSTICE C. K. BYAMUGISHA, JA*

## **CIVIL APPEAL NO. 81 OF 2002**

### **BETWEEN**

STEVEN BUJARA :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

### **AND**

POLLY TWEGYE BUJARA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

*(Appeal from the judgment and decree of the High Court of Uganda sitting at Mbarara (Mugamba J) dated the 5th September 200 2in Civil Appeal No. 16 of 1998)*

### **JUDGMENT OF BYAMUSIGHA, JA**

This is a second appeal arising out of the decision of the High Court of Uganda sitting at Mbarara wherein the appellant's appeal was dismissed with costs. The appeal to this court is premises on the following grounds:

- **1. The learned Judge erred in law to hold that there were no customary marriages because there was no evidence of registration thereof.** - **2. The learned Judge erred to ignore the issue of mention of wives and women and to hold that they were of no moment.** - **3. The parties having been unrepresented the learned Judge misdirected his mind about the role of court during the hearing.** - **4. The learned Judge erred to hold that there was no evidence to show that the marriage of 12th April 1985 was invalid under the Marriage Act.** - **5. The learned Judge erred in law and misdirected himself when he failed to appreciate the fact that there was a mistrial in Divorce Cause No. 3 of** - **6. The learned Judge erred in law and misdirected himself when he failed to appreciate the fact that there was a mistrial in Divorce Cause No. 3 of 1998**

## **thereby basing his judgment on biased and prejudicial conclusions and findings of the trial Magistrate to the detriment of the appellant.**

Briefly, the respondent herein, filed a divorce petition under **section 3** of the **Divorces Act** (Cap 249 Laws of Uganda) in the Chief Magistrate's Court at Kabale seeking the dissolution of her marriage to the appellant. The marriage in question was celebrated on the 12th April 1985 at the office of the District Commissioner in Kabale. The petition was based on the grounds that the appellant had, since the solemnization of the marriage treated her with cruelty and had committed adultery. The appellant filed no reply to the petition.

At the trial, the respondent gave her evidence and after being cross-examined by the appellant she closed her case. The appellant then applied and was granted an adjournment to tell his side of the story.

The matter was adjourned to the 22nd July 98. On that day, the appellant told the presiding magistrate that he had no problem with the divorce cause "only if certain things are clarified" to quote the exact words. He enumerated a number of properties, which he alleged had been taken by the respondent. He further stated that he could only allow the divorce if the respondent could bring back the said properties. He had no objection to the respondent's prayer for custody of the children provided she could look after them. He further stated he was married to three other wives. In cross-examination, he stated that the respondent found him with other women. In his judgment, the trial magistrate found that the allegations in the petition had been proved. In particular he found that the appellant's statement that he had other wives was evidence of adultery. Consequently, he granted a decree *nisi* and ordered the respondent to remain in the matrimonial home and to keep custody of the issue of the marriage.

Being dissatisfied with the outcome, the appellant lodged an appeal in person in the High Court Registry at Mbarara on 3rd September 1998. The grounds of appeal were the following:

- **1. The learned Magistrate Grade 1 erred in law in holding that the four issue of their marriage be put in custody of the petitioner now respondent not withstanding two main facts** - **(a) the issues are of years 6, 7, 8, 9, 13 respectively.** - **(b) the is not always able to look after them very well when they are in his custody.** - **2. The learned Magistrate Grade I erred in holding that the petitioner is entitled to stay in her matrimonial home with the issues notwithstanding the overwhelming evidence that the so called matrimonial home is a commercial premises which is the source of livelihood of the appellant with his family and the issues of the respondent.**

He promised to formulate more grounds after getting the record of the proceedings.

Accordingly, on the 4th June 2002 M/s Mwene-Kahima, Mwebesa & Co. Advocates filed additional grounds of appeal. These were:

## **1. There was no longer marriage between the parties.**

- **2. The trial magistrate having been informed of the existence of other wives during the trial erred for failure to inquire into matters as it had a serious bearing on the proceedings.** - **3. The trial magistrate erred to proceed to hear the case and grant divorce.**

# **4. The orders of court were illegal, null and void.**

At the hearing of the appeal, Mr. Mwene-Kahima abandoned the grounds that were formulated by the appellant and argued the ground that his firm had filed. The gist of his argument was that there was no legal marriage between the appellant and the respondent because the appellant had three other wives before he contracted a civil marriage with the respondent. He claimed that the evidence before the lower court shows that he appellant was customarily married to 3 wives. He claimed that the trial Magistrate should have checked whether there was a valid marriage. He further claimed that there was a mistrial and therefore a fresh trial ought to be ordered.

The learned appellate Judge dismissed the appeal on the ground that mere mention of women or wives, was no evidence of marriage since the marriages in question had not been registered in accordance with the Customary Marriage (Registration) Act (Cap 248 Laws of Uganda) (hereinafter called the Act).

When the instant appeal came before us, Mr. Mwene-Kahima assisted by Mr. Kwarisima for the appellant, argued the grounds in the order they were more or less formulated. We shall handle them in a similar manner.

On the first ground, Mr. Mwene-Kahima argued that failure to register a customary marriage does not invalid such a marriage. He claimed that the failure is punished as a criminal offence under section 20 of the Act. The section provides that:

*"The parties to a customary marriage who fail to register their marriage within the time specified in section 6 commit an offence and are liable to a fine not exceeding five hundred shillings".*

**Section 6(1)** states as follows:

*"The parties to a customary marriage shall, as may be, but in any event not later than six months after the date of completion of the ceremonies, attend at*

*he office of the registrar of he marriage district, in which the customary marriage took place, with at least two witnesses to the marriage ceremonies, to register details of the marriage".*

Learned counsel submitted that the trial Court and the appellate court should have been mindful of the impact of the subsequent marriage since the appellant had mentioned that he was married to other wives before he married the respondent. He further submitted that the trial court should have inquired about the situation he was dealing with. He referred us to **Halsbury's Laws of England 4th Edition V.37 p.386**. paragraph 510 in which the learned author spells out the role of the trial court. Counsel further submitted that where parties are unrepresented the court has a bigger role to play in the proceedings. Other authorities that counsel referred to are **Hayward v Hayward [1961] 1 All E. R. 236** for the legal proposition that it is always the practice of a divorce court to inquire into the facts concerning the validity or invalidity of a marriage. **Jones v National Coal Board [1957] 2 All ER 155** and **Yuill v Yuill [1945] 1 All ER 183**. These two cases discuss the issue of a fair trial in that every litigant was entitled to feel that his or her case had been properly put across.

Finally, he concluded his submission stating that there was evidence that ought to have aroused the curiosity of the magistrate about the marriage he was being asked to dissolve.

Mr. Kwarisima, on his part submitted that there was a mistrial. He too dwelt on the fact that the appellant mentioned wives that he had before contracting a civil marriage. He pointed out that whereas the respondent is recorded to have stated that she closed her case, there was no corresponding minute in the record that the respondent closed his case. He claimed that there was no fair trial and therefore this court should order a re-trial.

Mr. Patrick Mugisha, learned counsel for the respondent assisted by Mr. Tayebwa argued all the grounds together. In his submission, Mr. Mugisha stated that there was no sufficient evidence to support the claim of pre-existing marriages so as to vitiate the marriage of 12th April 1985. He stated that there was no evidence of registration of a customary marriage or marriages or any ceremony of such marriage or any of them. He further submitted that it was the duty of the person who alleged that there were other marriages to prove them.

He referred to the certificate of marriage (exhibit P.1) in which the appellant described himself as a bachelor. He contended that he was estopped from claiming that he was previously married before contracting the marriage now under dispute. On the claim that the appellant did not close his case and wanted to call witnesses, counsel submitted that this was not borne out by the record of the proceedings in the lower court. In any case, the appellant did not apply to adduce additional evidence on appeal-something he could have done. On the prayer that a new trial should be ordered counsel contended that this would result in a miscarriage of justice.

I think it would b convenient to deal with the ground which complained that there was a mis-trial or failure by the Magistrate Grade one to conduct the case in accordance with the tenets of impartiality. **Article 28(1)** of the Constitution provides that:

# *"In the determination of civil rights and obligations or any criminal charge, a person shall be entitled to a fair, speedy and public hearing before an independent and impartial court or tribunal established by law".*

The provisions of this article restated a cardinal principle of our civil and criminal justice systems that in hearing and determining disputes, the parties are entitled to a fair and impartial hearing before an independent court or tribunal. The litigant should not be left with a feeling that his or her case has not been fairly handled because the presiding judicial officer did not allow him or her to present his/her case. The role of the presiding judicial officer is to listen to the evidence and the arguments being put forward by each side and to ensure that the trial is conducted in accordance with the laid down rules. I agree with the principles laid down in the authorities cited to us by Mr. Mwene-Kahima on this point. The issue is whether the learned Magistrate failed in his duty to conduct the proceedings in the expected manner.

The respondent filed her petition in accordance with Form 1 of the first schedule to the Divorce Rules (S. I 215-1). The rules provide for service of summons on the respondent(s) in the same way that service is effected under the Civil Procedure Rules. The type of summons is found in form 2 under the Schedule. There was no complaint raised that the respondent (now appellant) was not served.

Although he did not file a reply to the petition, he appeared in court to answer the petition. The record of the proceedings shows that he was afforded an opportunity to cross-examine the respondent. The respondent closed her case and he applied for an adjournment to give his side of the story, which he did and he was cross-examined by the respondent. He did not indicate that he had any witnesses to call. He had no objection to the divorce being granted and the respondent getting custody of the children.

After the judgment, as stated earlier, he personally filed an appeal and formulated grounds of objections to the orders made by the trial court.

The contents of the grounds of appeal have been reproduced in this judgment to show that the appellant had no grievances against the trial Magistrate or any failure of justice. It was submitted before us that the issue of wives ought to have aroused curiosity on the part of the magistrate so as to make an inquiry about the marriage he was about to dissolve. With respect, I do not agree. When the appellant was cross-examining the respondent at page 5 of the proceedings about one of their tenants she replied that they chased her away because the appellant was cohabiting with her. In his evidence in chief he stated his position thus: *"I have no problem with the divorce cause only if certain things are clarified"*. The things he wanted clarified were the properties allegedly taken by the respondent. On the children of the marriage he said:

## *"If the petitioner can maintain her children she can stay with them and if she can't manage she should give them to me to maintain."*

On the alleged wives or women, the appellant in his evidence in chief stated that the respondent found him with 3 wives. In cross/examination he stated "you found other women". He stopped at that.

The criticisms that counsel for the appellant leveled against the learned magistrate and the appellate Judge were unjustified in the circumstances of this appeal. Admittedly, both parties were unrepresented. They chose to conduct their case without aid of counsel. The appellant was not prevented from engaging counsel of his choice to conduct the case. He cannot be heard complaining that the trial magistrate ought to have made inquiries on his behalf. The court is not an inquirer. It can only ask questions on matters that are obscure in order to reach a just decision. Furthermore, the appellant could have applied to adduce additional evidence in the appellate court. He did not.

As the learned appellate Judge rightly observed in my view, mere mention of wives or women did not mean that the appellant was legally customarily married to other women. A customary marriage like any other marriage must be proved by evidence. One such evidence is a certification of registration. The law requiring customary marriage to be registered was not made in vain. If the appellant was customarily married to other wives before he married the respondent, he should have registered his marriage like he registered the one he contracted with the respondent. The learned trial magistrate used the mention of wives to illustrate the point that the appellant was committing adultery. This cannot be stretched to make an inference that he was legally married to other wives or that the alleged marriages were customary in nature.

The principles to guide court before ordering a retrial have been set out in a wealthy of authorities. One of such authorities is **Jones v National Coal Board** (supra) which Mr. Mwene-Kahima cited to us in his submissions. In this case, it was claimed on appeal that the trial was characterized by constant interruptions by the trial Judge. And that the parties on both sides were prevented from putting across their respective cases to the Judge and to cross-examine the witnesses properly. In ordering a re-trial the appellate court was of the considered opinion that every litigant is entitled to a fair trial.

The case of **Fatehali Manji v The Republic [1966] EA 343** restated the position of the law. This position was summarized by Sir Clement De Lestang, Ag. P (as he then was) at page 344. He stated that to order a retrial, is an exercise of discretion and the exercise must be done in a judicial manner. He stated the principles thus:

*"in general a re-trial will be ordered only when the original trial was illegal or defective; it can not be ordered where the conviction is set aside because of insufficiency of evidence or for purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its*

*particular facts and circumstances and an order for retrial should only be made where the interest justice require it and should not be ordered where it is likely to cause an injustice….".* (emphasis added).

Although this appeal arose out of a criminal case, the principles enunciated therein apply with equal force to civil cases. The appellant has not made out a case in the particular facts and circumstances of this appeal, on which this court can exercise its judicial discretion to order a retrial. Consequently, the fifth ground appeal ought to fail.

The rest of the grounds would be dealt with summarily. The first ground complained that failure to register a customary marriage does not invalidate such marriage. The requirement to register a customary marriage as earlier pointed out, is governed by the provisions of **section** 6(supra). I agree with the submissions of Mr. Mwene – Kahima that failure to register a customary marriage does not make such a marriage invalid. The validity of a customary marriage is governed by **section 11** of the Act which states as follows:

*"A customary marriage shall be void if-*

- *(a) the female party to it has not attained the age of sixteen years;* - *(b) the male party to it has not attained the age of eighteen years;* - *(c) one of the parties to it is of unsound mind;* - *(d) the parties to it are within the prohibited degrees of kinship specified in the Second Schedule to this Act or the marriage is prohibited by the customs of one of the parties to the marriage; or* - *(e) one of the parties has previously contracted a monogamous marriage which is still subsisting".*

The validity of a customary marriage is not affected by any subsequent monogamous of Muslim marriage but the subsequent marriage would be void. In the instant appeal, there was no evidence adduced in the lower court to prove that the appellant was customarily married as submitted by his counsel. He alleged in his evidence that he had three other wives. The law requires that a customary marriage be registered *"as soon as may be, but in any event not later than six months after the date of completion of the ceremonies of marriage"* (emphasis added). In other words there has to be evidence of customary ceremonies of the community or tribe having been performed before one can legally consider himself/herself customarily married and also to have the marriage registered. The registration must be witnessed by two people who were present when the ceremonies were performed. In this appeal, the issue was not whether the marriage was registered or not but whether there was evidence of such marriage including a marriage certificate. The learned appellate Judge at page 2 of the judgment said:

*"I find that there was nothing compelling in the record before the Grade 1 Magistrate for him to be of the mind that the marriage celebrated between the appellant and the respondent herein had in any way been in danger of nullification. Mere mention of women and wives, for what they are worth, is no evidence of marriage. In any case under S.9 of the Customary Marriage (Registration) Decree it makes it necessary to have a certificate of customary marriage as evidence of such marriage. None was brought to the attention of court".*

The record of the proceedings is clear. The appellant told the trial court that he had three wives before he married the respondent although he had described himself in the marriage certificate as a bachelor. It was not the duty of the trial court or the appellate court to infer from that evidence alone that the appellant was customarily married. The court can only act on evidence adduced by the parties. The lower courts cannot be faulted for their findings. This ground of appeal would fail.

I think I have said enough to show that the appeal lacks merit. It would be dismissed with costs.

**Dated at Kampala this………..30th……..day of……Apirl,… 2004.**

**C. K. Byamugisha Justice of Appeal**

### **REPUBLIC OF UGANDA**

### **IN THE COURT OF APPEAL OF UGANDA AT KAMPALA**

## **CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. JUSTICE S. G. ENGWAU, JA HON. JUSTICE C. K. BYAMUGISHA, JA**

### **CIVIL APPEAL NO. 81 OF 2002**

### **BETWEEN**

#### **STEVEN BUJARA ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPELLANT**

#### **AND**

#### **POLLY TWEGYE BUJARA ::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT**

(Appeal from the judgment and decree of the High Court of Uganda at Mbarara (Mugamaba J) dated 5 th September 2002 in Civil Appeal No. 16 of 1998)

#### **JUDGMENT OF A. E. N. MPAGI-BAHIGEINE, JA**

I have read in draft the judgment of Byamugisha JA. I entirely agree with her Lordship's appraisal of the evidence and have nothing more to add. The appeal is devoid of any merit and since my Lord Engwau JA also agrees, it is accordingly dismissed with costs to the respondent here and below.

Date at Kampala this……30th…..day of…………April,...............2004.

A. E. N. Mpagi Bahigeine Justice of Appeal

## **THE REPUBLIC OF UGANDA**

## **IN THE COURT OF APPEAL OF UGANDA**

## **AT KAMPALA**

# **CORAM: HON. JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. HON. JUSTICE S. G. ENGWAU, JA. HON. JUSTICE C. K. BYAMUGISHA, JA.**

### **CIVIL APPEAL NO. 81 OF 2002.**

### **BETWEEN**

**STEVEN BUJARA =====================================APPELLANT**

### **AND**

### **POLLY TWEGYE BUJARA ============================ RESPONDENT**

(Appeal from the judgment and orders of the High Court of Uganda at Mbarara (Mugamba, J) Dated 5.9.2002 in Civil Appeal No. 16 of 1998).

### **JUDGMENT OF S. G. ENGWAU, JA**

I have read in draft the judgment of Byamugisha, JA and I entirely agree with her that this appeal lacks merit.

Dated at Kampala this………….30th………..day of…….. April,…............2004.

S. G. ENGWAU **JUSTICE OF APPEAL.**