[2011] UGHC 201

| | | | THE REPUBLIC OF UGANDA | |------------------------------------------------------------|--|-------------------------------------|------------------------| | | | | FEES PAIL | | | | | | | | | THE REPUBLIC OF UGANDA | VOUGHER NO. | | | | | ojie sick | | | | IN THE HIGH COURT OF UGANDA AT NAKA | | | | | | | | DIVORCE APPEAL NO. 001 OF 2010 | | | | | | | | | | | | | | | [ARISING OUT OF NAKAWA CM COURT DIVORCE CAUSE NO. 25/2004] | | | | | | | | | | | | | | | APPELLANT<br>NYIRANEZA JUSTINE KAZAARE: :: | | | | | | | | | | | | VERSUS | | | | | | RTIFIED TRUE COPY | | | | | | | KAZAARE JOLOCOME: | | | | | | | | | | | | | | | BEFORE: | | HON. LADY JUSTICE FAITH MWONDHA | | | | | | | | | | | | | いいへん えたいけ | | | |

## JUDGMENT

This appeal was brought before me by counsel for the appellant M/S Paul Tusubira & Co. Advocates. The appellant having been dissatisfied with the whole judgment and decree by Her Worship Agnes Nkonge delivered on 29^th April 2009. The appellant had 7 grounds of appeal as embodied in the memorandum of appeal and proposed that the judgment and decree be quashed and that an $\mathcal{S}$ order be made for the appellant to remain in the matrimonial home comprised in Block 243 Plot 1260 Kyadondo.

The grounds of appeal were as follows:-

- 1) That the trial court erred in law when it failed to evaluate properly the $10$ evidence on record and come to a wrong conclusion. - 2) That the trial court erred in law when she applied and an annulled law and therefore came to a wrong conclusion. - 3) That the trial court erred in law and fact when it made an order that the appellant/respondent was to pay fees for the children of the marriage. - 4) That the trial court erred in law when she ordered that costs were to be in $\mathcal{N}$ the cause. - 5) That the trial court erred very many factor misapplied the law on adultery on matrimonial causes

Y.

$J\in \cdot, \exists\, B$ $\mathbb{N}A\cup AWA$

- 6) The trial court erred in law when it failed to give judgment on the matrimonial property. - 7) That the trial court erred in law and fact when she wrongly applied the law of custody in Divorce causes.

The duty of the 1st Appellate court is to evaluate the evidence afresh of the lower $\mathcal{S}$ court to facilitate it come to an independent decision as to whether the lower court's findings and judgment can be sustained.

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This court had the opportunity to read and consider the lower court record, its judgment and decree. It's clear from the petition that it was the husband Kazaare Jolocome who was the petitioner in the lower court and the appellant was the respondent, having got married on 8^th May 1979, though he didn't state what kind of marriage it was i.e. whether it was Customary marriage which was potentially polygamous or Church marriage or Civil marriage which are potentially monogamous. He alleged that the respondent committed adultery in 1988 and 2000 with one Kaitale Andrew and Njenga a Kenyan national. He also ιS pleaded that their marriage had irretrievably broken down. He prayed that the said marriage be dissolved. That the petitioner be granted the custody of the 6 children among others. The appellant (respondent) objected to the dissolution of She denied having the marriage and prayed for dismissal of the petition. committed adultery as stated by Respondent (Petitioner) and she alleged assault $\mathcal{D}$ by the Respondent, alleged that the petitioner got another woman whom the petitioner bought property in her names. That the petitioner had refused to provide fees and necessities for the family.

She prayed that the court ordered the petitioner to stop assaulting her and stop the threats of throwing her out of the house and the various threats of violence $\mathcal{S}$ against her. She also prayed that the court orders the petitioner to meet all family necessaries and to avail the shop he had closed to her. That court orders him to pay fees for the children and custody be granted to her. She prayed for any other relief the court deemed necessary.

After careful perusal of the record. Lfound the following:-<br>CERTIFIED CORRECT 30 1) That the parties were cohabiting and assumed that they were customarily married. The petition condent stated that he went to the appellant's That they started living parent's home and He was en any letter. HIGH COURT NAKAWA CE $_{\rm HI,HI,CO}$

together at Mutungo and they had 6 children between them. This just proved that they cohabited and they had cohabited for 20 years.

, In Uganda presently there is no law which recognises cohabitation as ^a form of marriage relationship to entitle the parties to be presumed to be married and therefore have equal rights at during and after dissolution of the marriage. <\_5"

The issue during the trial was *"whether a magistrate court has Jurisdiction to try a petition ofdivorce of^a customary marriage"* was resolved by the trial court in the affirmative. This was after the learned counsel for the petitioner had submitted . that the parties agreed that there existed a customary marriage between them. That the law applicable was the Customary Marriage (Registration) Act Cap 248 I'0 in the Magistrates Court Act Cap 16 among others.

According to the Customary Marriages (Registration) Act, Section ¹ provides Customary Marriage means ^a marriage celebrated according to the rites of an African community and one of the parties is ^a member of the community among others.

From the evidence on record it'^s only PW1 the petitioner who stated that he went to the parents of the' purported respondent. There was no other witness who testified to the existence of the customary marriage in the material particular that he witnessed it. There was no evidence of any rites having been performed to prove the celebration and existence of the marriage. -2\_P

In my well considered opinion, visiting the parents of the woman *perse* and in the absence of any letter given to the petitioner, calling their relationship ^a customary marriage would be an abuse of this type of marriage.

Section 4 of the Customary Marriages (Registration) Act provides for where the Customary Marriage can be celebrated.

Section 5 provides for Customary Marriage Register book.

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arriages. Section Section 8 provides for rria **V'. Y-** *\** 7C>t(Udf,timffi COS Section 6 provides for Registration o^8u?t2>mi^pM ⁷ provides for Ci^o^fry ferriage'Certificate. USE?

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Section 10 provides and states that the certificate of a customary marriage shall be conclusive evidence of the marriage for all purposes in any written law.

It was apparent from the pleadings/petition that there was no certificate of the marriage as required by 5.10 of the Customary Marriages (Registration) Act.

This meant that though the Magistrate Court has jurisdiction to a try divorce $\boldsymbol{\mathcal{S}}$ petition, the jurisdiction has to be exercised in accordance with the law. The evidence of PW1 was so scanty to prove existence of a Customary Marriage. He just stated that he went to the parents of the Appellant, but he didn't say why he went there and who met with him and what they did. He also stated that there was no letter given to him. So one wonders whether that act of going to the $\mathcal{O}$ respondent's parents could be considered enough to substitute for the marriage having been solemnised in the context within the meaning of the Customary Marriage (Registration) Act is intended.

S.101 (1) of the Evidence Act is also very clear. It provides:-

$\sqrt{5}$ "Whoever desires any court to give judgment as to any legal right or liability dependant on the existence of facts which he or she asserts must prove that those facts exists'

It was incumbent upon the petitioner to prove that there was a customary marriage between them. This therefore means that both parties agreeing that there was a customary marriage between them was a misconception. Infact, the $\mathcal{D}$ petitioner's going to the respondent's parents and never registered the marriage to get a certificate meant that the petitioner was taking the respondent for a ride. This means that there was nothing to dissolve and the petition ought have been dismissed as incompetent and barred in law for non disclosure of the cause of action as the subject matter of a legally binding customary marriage recognised in the law was non existent.

2) There was overwhelming evidence that the parties had cohabited for some time and they had children as a consequence/ Since there was no marriage between them they were friends and or partners who were working and or doing business together ESITMEX petitioner/respondent started misbehaving $3D$ and accusation of adultery-came MAby him, which adultery was not proved by the evidence adduced in the lower court. So even if the trial court

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CERTIFIED **GINIAL**

found that there was a valid Customary Marriage, she ought have given a proper decision based on the evidence which she failed to do.

At page 44 of the record of appeal the trial Magistrate stated;-

"this court has carefully heard and considered the evidence on record and finds that much as the petitioner has not strongly proved the adulterous $\mathcal{S}$ relationship of the respondent, there is however evidence that he himself committed adultery and has been cruel to the respondent when he stopped maintaining the family and paying school fees. This coupled with desertion since 2004 render the marriage irretrievably broken down. Court finds that the grounds are sufficient to dissolve the said marriage which is hereby $) \circlearrowright$ dissolved.

It's clear from the above stated that it is the petitioner who was in the wrong, I could not comprehend the trial magistrate's logic in taking the decisions as she did.

The principles of natural justice in particular of one not benefiting from his own $\mathcal{K}$ wrong do not permit the decision of the trial court to stand as it causes a miscarriage of justice. She deliberately misapplied the facts and the law to the detriment of the appellant. Much as the customary marriage was not proved, the cohabitation of the parties resulted into birth of children who have to be protected under the law. Article 34 of the Constitution and the Children's Statute $\mathcal{D}$ are very clear about the rights and interests of the children/the welfare principle of the children. They are entitled to be cared for by their parents or those supposed to bring them up. They are entitled to basic education and entitled to be protected from social and economic exploitation. So considering the welfare of كد the children to be paramount, this court is under a duty to make orders in the best interest and welfare of the children. Also the appellant has spent all her time in this pretentious customary marriage and she is the mother of the children and the petitioner is the father. The appellant has GOIDR Beyen care of since she may not have anywhere to go or live with her children.

The evidence on record proved that the respondent had neglected his *SO* duty/responsibility of maintaining $\mathcal{L}_{\text{eff}}$ duty/responsibility of maintaining $\mathcal{L}_{\text{eff}}$ duty/responsibility of maintaining the first chool fees thus exposing the children to great social and economic exploitation. The appellant stated in her evidence that her elder child-had to look for her own kees

when the respondent stopped the appellant from doing the business from which she was collecting rent and therefore was able to pay the fees. The petitioner has to take full responsibility and there is no way he can run away from it.

I had the opportunity to consider the Respondent's counsel submissions but found that they had no merit. The cases cited are not applicable. Counsel for the $\boldsymbol{\zeta}$ respondent rightly submitted that the trial Magistrate misapplied the law and she failed deliberately to properly evaluate the evidence to come to the right decision.

Accordingly judgment is entered in favour of the appellant and the lower court judgment is set aside in the following terms.

(1) Appeal allowed.

(2) Decree *nisi* set aside.

- (3) The Appellant and the children remain in the home comprised in Block 243 Plot 1260 Kyadondo. - (4) The Respondent should sign transfer forms for that property above stated in favour of the Appellant and the 6 Children.

(5) The appellant retains the custody of the children.

(6) The Respondent pays school fees for the children and has to maintain the family by paying 5ns. 500,000/R perimonth as up keep

(7) Costs of this appealand the ourt belowetd be provided for. RESIDENT JUDGE HIGH COURT NAKAWA

Right of Appeal explained.

**FAITH MWONDHA** J U D G E 28/07/11

CERTIFIE

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