[1993] UGHCFD 2

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### DIVORCE APPEAL NO.3/93

## (PRIG. FILE DIVORCE CAUSE NO.5/93 OF MENGO)

Ro IRUMBA APPELLANT

### VERSUS

. ,F. IRUMBA RESPONDENT BEFORE: THE HONOURABLE MR. JUSTICE F. M. S. SGONDA NTENDE

# J^U D G ^M ^E ^N^T

■The Appellant, Richard Irumba, has appealed to this court against a ruling made by the learned trial Magistrate Grade I dated JOth August at Mengo dismissing a preliminary objection raised by the Appellant.

The brief history of this matter is that the present respondent 22/2/93. petition on the 10/5/93\* On 2nd July 1993 a reply to the Cross Petition was filed, completing the pleadings in the matter. filed a petition for divofce in the Magistrates. Court at Mengo on A reply to- -the' petition was filed on 1^/^/95 and a Cross

On 5th July 1992 when the parties appeared before the trial court, learned counsel for the Appellant (then respondent), Mr. Mugenyi,made The trial Magistrate,on the same for want of merit. of the decision. due to » the fact that he was biased. • day the application was made, made a preliminary objection. a ruling dismissing the application Appeal against the said decision was lodged in this court on.9/9/93 after the expiry of more than 60 days from the date an application and on the other hand raised that Firstly, he applied the trial Magistrate should disqualify himself

•

• The Memorandum of Appeal refers to the decision of the trial court as having been made Na explanation as to the de..ay in fxling \*uhe appeal is available on the i\*ace of the Mfimnrnnriwn on 30/8/1993. This, without doubt, is wrong in relation to the ruling dismissing the application to disqualify the trial Magistrate which was made on 5/7/93.

In the result, that ground is out of time and cannot be entertained by this court. wi. ... of Appeal or even in counsel's address to this court. I can only find that the appeal on

^v .. ²

However, { this matter it is doubtful® to say the least® if the objection had any merit. As it is not necessary for the decision I have made now® I will not address myself to that aspect. Ground No.1 .of the appeal accordingly fails. even if I addressed the merits, of the objection to the over trial Magistrate presiding ..this

The second ground of the appeal was to the effect that:-

The learned Magistrate erred in not dismissing the petition as it was premature® misconcieved and bad in law."

Mr^o Mugenyi, learned counsel referred to .section 4 of the Divorce Act

interalia® provided: which®

(2)

(D "4

> Such jurisdiction shall® subject to the provisions of this Act, be exercised in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England."

' Mr same He submitted that since the parties married dismissed with costs. CiSv <1955/ ²⁸ K.. H .210, Bov man (1949) ² AU E. R\* 12? and Halsbury'^s Law monial Causes Act 1950 of England, no petition for divorce may be presented until three years after the marriage, unless leave was granted. • Mugenyi had argued-in the court below^and he repeated the arguments here® that by the above provision the law applicable was the Matrimonial Causes -Act I95. O of England®applied to Uganda. He submitted that under English Law® and I presume he meant Section 2 of the Matri-He referred ••his. court to the cases of A. B. vs Petition was filed in February JI995® the three years had not elapsed •and leave of court had not been obtained. He prayed that this Petition tie dismissed for being premature and bad in law and that it should be on 25/8/1990 and this

raised in the lower court. Act applies the Law applying in England. He stated that the Matrimonial Causes Act 1950 was replaced and the law now applicable was the Matrimonial and Family Proceedings Act 1984 which applied in England and therefore applies here. He submitted that under the 1?84 Act the The trial Counsel for the respondent similarly rehearsed the submissions He argued that Section 4 of the Divorce waiting period had been reduced to ¹ year from J years. court accepted the respondents arguments and accordingly overruled the preliminary objection.

I regret to sc.y that I have not been able to lay my hand on either the broad decision to be made in this appeal is whether the jurisdiction of courts in Uganda is exercised, subject to our Divorce Act, and the Judicature Act, according to the law applied in the Matrimonial Proceedings in the High Court of Justice in England ujs ⁿ't the time the it is applied in England as of now. on Since then the Act has remained substantially the same save for a few amendments brought by Ordinance No.25 of 1932 and Act 38 of 1964. The Divorce Act was first enacted into law in this country 1st October 1904 as Ordinance No.15 of 1904. the Matrimonial Camuses .let, or the Matrimon?.al and Family Proceeding Act of 1984, both of England. But from the submissions of counsel Divorce Act came in force in Uganda or as

Section 4 of Ordinance 15 of 1964 provides

»»4e

Jurisdiction under this Ordinance shall only be exercised by the High Court (hereinafter called the court) and such ...jurisdiction shallj subject to the provisions of this Ordinance vvbe ^exercised in accordance with theu. Law applied in proceedings in the High Ccfurt-of Justice in England

read as under:- (1) Where all parties to This Section was amended by Ordinance 25 of 1932 to »4-» a proceeding under th t; Crdi '.c.ace Are Africans or -./here a

accordance with the provisions of Section *22* jurisdiction may be exercised by a subordinate court of the first class»

(2) In all other cases jurisdiction shall only be exercised by the High Court. Such jurisdiction shall, subject to the provisions of this Ordinance, be exercised in accordance with the Law applied in Matrimonial Proceedings in the High Court of Justi n in England J\*

Section 37 substitute.! the reference to a subordinate court of first class to a Grade I Magistrates Court. Under Act 3\$ of 1?64, Lhe Magistrates Courts Act,

Since 1904 courts in Uganda have been obliged subject to the Divorce Act to exercise such jur.sdiction in accordance with the law applied in the High Court of Justice in England. I would put emphasis on the words **¹¹ ^B** This is not restricted to High Court of Justice in England that is applicable here subject to the Act. "in accordance with the law applied common law or equity or written law but it is the law applied in the

the Matrimonial Proceedings Act 1950 of England would not apply in Uganda on the'basis of Section 4 of the Divorce Act. This would be so because it was enacted 46 years later in England from our reception date of 1st October 1904. The courts in Uganda would have to ascertain what law was applied in the High Court of Justice in England as at 1st October 19>4< If one were to accept the argument that this refers to the law as it was at the time of enactment, that is 1st October 1904, then a fortiori

Counsel fcr the respondent rejected that view and submitted that the law applicable in the High Court of Justice in England now was the law applicable in Uganda -subj-ect to the Divorce Act. As the Matrimonial Causes Act ^950 was no longer appli able in England, it ?.'as no longer .'lb submitted that it is now the Matrimonial and apr? tcable in a^o

therefore apply here subject to the Divorce Act.

ment of the Divorce Act in Uganda that is applicable now Matrimonial Causes Ad: of 1950 of England does not apply to Uganda\* Mr. Mugenyi based thio argument on the presumption that our Divorce Act was enacted on thv 1st October 1904 and all subsquent amendments have not affected the application of the law applied in the High Courv of Justice in Engla/.d to Uganda undej section ⁴ our Divorce Act\* As remarked earlier, If I were to accept Mr. Mugenyi's argument that it is the law that was applicable in England at the time of enact of ? then the

I would however, be more xiiclined to accept the phrase

n seems to refer to the lav/ 1st October 1904. apply to marriages under the Christian faith or under the provisions of the marriage ordinances in force in the protectorates of East Zifrica, Uganda or British Centra?, Africa. Such marriages wore similar to the marriages in . England. It was therefore easy to apply the lav; of England to dissolution of the same. The state of the law to such marriages was basically the*'*same here as it was in England and has remained so. in England rather than meaning the law applied at a particular date i.e The Divorce--Act was initially intended in 1904 to "in accordance with the law applied currently applied in' th:e ^~ High Court of Justice

I would think it was not the intention of the legislature to fix the reception date of the laws relating to dissolution or divorce of marriage to a particular date, be-it 1st October 1904 or any other. If that was the intention, the language of the Section 4 of the statute would have plainly said so. The intention of the legislature was in my view that the law being applied in the High Court of Justice of England at any time would be the law applicable to Uganda for as long as it was be.iig applied in the High Cent'of Justice in England. .

Mr. M.genyi has contended that even if. that were so by virtue o\* or, cl i ati: •? Act the • p ^T 4 ^u app? ted in the High Court of .'•'usLi'e in E\*\*gl,.xa icnliceb'.e to Ikur-;

Act must be taken to have been frozen on the coming into force of the Judicature Act\*

if his argument is accepted, it would mean that as of the 14th June 1967 when the Judicature Act came in force, it was the Matrimonial Causes Act, 195.t which was applied in England and the courts here are obliged only to look at that law\*

Secci jx; *\$* of the Judicature Act provides:\*\*

- "5. (D Pursuant to the provisions of clause (J) of article 91 Constitution, the High Court sh°ll' be a superior court of record and shall have full jurisdiction, civil and cr^'r. Inal, over all persons and over causes and all matters in Uganda\* - (2) Subject io the provisions of the Constitution and of this Act, the jurisdiction of the High Court shall be exercised, - (a) in conformity with the written law including any law in force immediately before the commencement of this /ict- - (b) Subject to any written law and in so far as the same does not extend or apply, in conformity with - (i) the common law and doctrines of equity\* - (ii) any established and current custom or usage; and - (iii) the powers vested in and the procedure observed by the High Court immediately before the commencement of this Act in so far as any such jurisdiction is consistent with the provisions of this Act; and

- (c) ^J in Where no express law or rule is applicable to any matter in issue before the High Court conformity with the principles of justice, equity and gvod conscience• - (5) as The Applied Law. the Common Law and doctrines of equity shall be in fore a only in co far as the cirst'^evs of Uganda and of its people permit, and ». • r.ion qualifications c.s circumstances may

The Written Lav/ that I accept that bynecessary implication by "irtue of the provisions of Section 3(2) of the Judicature Act the Matximor.ial Causes Act, 1950 was the law applied in the High Court of Justice in England that is applied to Uganda, under Section 4 of the Divorce Act, subject to the Divorce xlct. immediately before the commencement of this Actwas in force was the Matrimonial Causes Act, 1950\* On a reading of section 3(2) of the Judicature xlct, it appears logical that the jurisdiction of the High Court (and Lower Courts) with regard to divorce must be exercised in conformity with the written lav/ in force

This law is however not only subject to the Divorce Act but is also subject to what "the circumstances of Uganda and its peoples permit'4 and

> "to such qualifications as circumstances may render necessary."

time as any other to answer the question of exceptional circumstances is consistent with the circumstances of the people of Ugandawhether the 3 year rule prohibing a petitidn for divorce save in very Perhaps this is good a

Section 2 of the Matrimonial Causes Act 1950 states:-

"1 No petition for divorce shall be presented to the court .unless at the date of the presentation of the petition three years have passed since the date of the marriage.--

PROVIDED that a Judge of the Court may, upon application being made to him in accordance with rules made under this Act allow a petition to be presented before 3 years have passed on the grounds that the case is one of exceptional hardships suffered by the fetitioner or of exceptional depravity on the part of the respondent, but, if it appears to the Court at the hearing of4the Petition, that the Petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the Court may? if it pronounces a decree nisi, do so subject to the condition that no application to make the decree absolute shall be made until after the err; av.-inn the date of the marriage, or may dismiss the petition, without prejudice to any petition which may be brought after the expiration of the said three years upon the same, or substantially upon the same, facts as those proved in support of the petition so dismissed."

It is clear that hardship of the applicant or depravity of the respondent is not sufficient to found an action in divorce before the expiry of three years# In addition to the ordinary grounds' for divorce, the applicant must show that he or she is suffering exceptional hardship or' is the victim of exceptional depravity of the respondent before leave to present a petition before '.he expiry of three yeais can be granted•

What was the rationale for this rule? It is explained in a s.ries of cases quoted in /<. B vs C-L. 1955 28 KLR 210. The first case quoted :.s Fisher vs Fisher P.26> C. A\* at page 214. In this case a husband had leave refused to present a petition for divorce and appealed# BUCKNILL L. J. said:-

> •'The provision that the petition shall not be presented until three years have passed was enacted not only to deter persons from rushing into ill advised marriages, but also to prevent them from rushing out of ill advised marriages was \*.ot what they expected.... Section 1, however, goes on, by way of proviso to the section, to allow a petition to be presented within three years on the ground that the case is one of exceptional depravity, and that, when he had come to conclusion on that, he had to exercise his discretion and decide whether the case was one in which he should give leave#.... The difficulty in my mind, is to say whether the evidence clearly establishes that there was exceptional hardship or exceptional depravity.

. It was argued -that, as there was no hope of reconciliation, this was exceptionally hard on the husband. It appears to me that in nearly every case where the wife, or the husband, shortly after the marriage decides that they have made a mistake and intimates chat he or

she does not intend to go on with the marriage. If the court were to treat that as exceptional hardship, it would be very difficult to know where to draw the line. The fact that the wife subsquently started to commit adultery with another man is also no doubt, hard on the husband, but, again, I cannot see that it is a case of exceptional hardship. In every case where one of the parties commits adultery it is \* and on the innocent spouse. ^j' can see nothing in this case which makes me feci that the wife is exceptionally depraved or v;h«ch impedes exceptional hardship on the husband It w-s then argued t! at the conduct cf rhe wife had a- bad-effect' on the husband's health and was detrimental co his career in the army. I feel that it ought to be very clearly established 'that the facts do have a very serious effect on the health of the Petitioner before one can say that the case is one in which the proviso to Section 1, sub-se'etion (1) ought to operate v

Reference was also made to the case of Charlesby vs Charlesby (194?) 1?6 LT. R# 552, Tucker L-J. said:-

> I! Shortly as a . .... Put quite shortly, the facts were these:, She was a Greek lady; she had been serving in Greece and she married the respondent there on 9th August 194-5\*. Prior to her marriage, she had suffered considerable hardship at the hands of the Germans occupying the country, and at the time of her marriage she was in bad state of health result of what she had suffered and that the state of health was known to the respondent, after the marriage in Greece they came to this country. The petition alleges that the respondent is a man of depraved sexual habit and that he has ' since the marriage, treated the respondent with great cruelty and sexual perversion assaulted her? The petition goes on to allege specific acts cf cruelty and of sexual perversion.• • which I need not to go into further, of sexual act-: of depravity in which ho compelled the

Then petitioner to take part- Then there is a final allegation of what I may call an ordinarily physical act of cruelty, namely, taking her by the throat and endevouring to strangle her. it is alleged that, having come to this country, the respondent broke up the matrimonial home and that she is now a stranger in a foreign land and has nowhere to go. The respondent denies the allegations."

''This was, in outline, the material upon which the learned Judge was asked to exercise his discretion and allow presentation of a petition within three years.

;B>t, having established what may be a ce.se of exceptional hardship or depravity, it does not follow that the learned Judge is bound in every case to exercise his discretion and give leave to present a petition. He cannot exorcise his discretion unless such a case is imide cut; but even if a prima facie case of that nature is established it still remains for the learned Judge to say whether, in the particular circumstances of the case with which he is dealing, he considers it one in which he should exercise his discretion."

Leave in that case was denied in the court of first instance and on appeal.

Turning to the Kenyan case of A. B vrs C. D. 1955 28 KLR 210 the facts were that the parties married on 13th December 1952, in Kenya, and there were no issues of the Union. The applicant deposed that from 14th to 21st December 1952, the respondent insisted upon having marital intercourse with her on an average of four times during 24 hours despite the fact that the applicant informed the respondent that this caused her severe pain in the back and that when she suggested intercourse should take place once only in the same period the respondent became extremely iron the 21st to 27th December 1952. intercourse could not take pla'e because of menstruation. From 27th December 1952 to about 8th angry^o

January 195>i the respondent again insisted on having ''very frequent intercourse" although informed by his wife that it caused her severe pain and wheTl so informed became abusive. Moreover, he kept the applicant awake pleading with her to have intercourse and as a result the applicant from pain and lack of sleep became unwell« On 8th January 1953, the applicant\* mf Drmed the respondent that she was in severe pain and c<e?d ■\ct bear any more, but inspite of that he forced her to have intercourse with him although she resisted. From that day until 18th January the respond.ut insisted upon having inercourao with the applicant inspite of the severe pa:;. and frequent complaint?.♦ Ou the l8lh January the applicant saw a Doc cor and was admitted to a womens hospital on 22na January 1955. From henJ-\* the applicant stopped cohabitation with the who for his own gratification, inflicted pain on her which she was advised would lead; to a mental breakdown. She was subsquently operated upon and cyst removed from her left ovary with the probable result that she would no She nevertheresnme married life Cram Ag. J., stated: longer suffer any pain in the act of sexual intercourse\* lews atnted that the conduct of the respondent made it impossible to respondent and could not live with the respondent

"It seems plain that the breakdown of this marriage was chiefly due to the physical maladjustment of the applicant who has later failed to make e. reasonable attempt at reconciliation. The applicant does not say that she has consulted her relatives, a clergyman, a probation officer or any other person specially qualified to help. She has not once attempted the sexual act with her husband to see if her original feacr and repugnance, which is understandable, but not her post-operational refusal which seems to me phyechological, would be overcome. She has not tested ' him to see if he has become more understanding and gentle. I am not satisfied at all that she has done all that is reasonable to discover if reconciliation is possible."

c.<-,/12

t..e three years was refused The a;plicatior for .eave tc filo a divorce before the exyiry of

From the above cases' itf\* appears to me that the three year rule tional depravity of the respondent imposes too harsh a burden on the lives of the spouse who is union with the other spous^€ Mairiage like all other parternship contracts is built on mutual trust and confidence. ..partnership objects^&gt; In ordinal-y contracts r.nce this is broken the partnership cannot hold together. It is dissolvod.. operates very harshly in so far as the exception to it which requires proof of exceptional hardship on the part of the applicant and excep-Each partner must • • • . be able to trust and have confidence in the other in the pursuit of the no longer able and willing to continue the

A

*■\d-*

However, marriage contracts are not so similarly regarded. Marriage gives rise to a family unit upon which it i.s believed community and subsquently the nation or State is built. It is in the nation's interest to protect the family unit. Initially in England ' ho dissolution of a matrimonial union was allowed. Later the legislature could grant a divorce but not the courts. Subsquently divorce was allowed and could be granted by courts but on very stringent grounds. In the process the three year rule was developed to

> «> deter not only persons from rushing into ill advised marriages, but also to prevent them from rushing out of marriage as soon as they discover that their marriage was not what they expected

I do not see the need why persons who contract ill advised marriages should be dettered from dissolving, such unions should they find that mutual faith, trust and confidence has dissolved or disappeared. Marriage should be a union of.two consenting*'* adults to pursue marital happiness and other attendant objectives. The three year rule has been abandoned in the United Kingdom, if I am to.believe counsel for the respondent, 1984. I imagine this was due to the fact that it was realised unions could not be held together A >5' Law if they have fallen apart infact. under the Matrimonial and Family proceedings Act,

Matrimonial Causes Act 1950 is applicable to Uganda subject to what the circumstances of the people of Uganda may permit\*

The circumstances of the people of Uganda ,• in my view, dapnand that union has irretriably broken down the parties should, subject bo making provision for the issue of such a union, be allowed, an opportunity to pursue their lives without being tied to a union that has broken down. Three years may be but it is also a long time in Uganda during which no exceptional hardship or perhaps any hardship at all should be inflicted or suffered ty a party merely to hold a union together. This could easily amount to cruel and or degrading treatment or punishment. The facts of the case of A-B. vrs C. D. (supra) are illustrative of this. once a a short time

To hold as was held in the case of Fisher vrs Fisher (supra) that the adultery of exceptional hardship on the other party cannot be permitted by the circumstances of the people cf Uganda. The future and .health, of our nation now depends on ''zero grazing" in light of the Aids epidemic in this country. Where it pparent in any union that the parties are no longer able to pursue their joint enterprise by the conduct of one or both the parties and such conduct gives rise to one of the grounds for divorce contained in Section 5 of the Divorce Act, then, such party, -or any one of them, should be able to bring an action for divorce without being tied to the three year rule. The rule has been abandoned in its country of origin. its application here. a party to a union imposes no is a And the circumstances of our people do not permit

to pioceed. I would therefore dismiss this appeal with costs and would remit this cause back to the trial court for the hearing of the divorce cause

• •• *: f* F. M. S. EGONDA NTENDE JUD ^G ^E 20/12/1993

2t/12/1993 9:15 a.m.

## Present

Mr. Asa Mugenyi for Appellant Mr. Komakech Court Clerk Absent Irumba R Appellant

Irumba F Respondent

Katuntu for the respondent. Judgment d 1'iver^j.

> . **./..... A-.**

F. M. S, EGONDA NTENDE J U D G E

20/12/1993