[1998] UGCA 32

### THE REPUBLIC OF UGANDA

IN THE COURT OF APPEAL OF UGANDA

### HOLDEN AT KAMPALA

J. P. BERKO, J. A.; S. G. ENGWAU, J. A. AND A. TWINOMUJUNI, J. A. **CORAM:**

# CIVIL APPEAL NO. 1 OF 1997

CEASER OKUMU ............. ................. APPELLANT

## -VERSUS-

HELLEN DHUGIRA ............................. 1ST RESPONDENT BEN ALEX OPAR ....................................

> (Appeal from the judgment of the High Court of Uganda at Kampala (Hon. Justice Mpagi-Bahigeine) dated the 15th day December, 1995 in Divorce<br>Appeal No. 7 of 1994)

### JUDGEMENT OF TWINOMUNJUNI J. A.

This is a second appeal from the decision of the Chief Magistrate of Mengo on a divorce petition.

Brief history of this case is as follows:

Ceaser Okumu, an Alur from Nebbi, filed a petition for dissolution of a customary marriage with the 1st respondent Hellen Dhugira on grounds of adultly and desertion and joined Ben Alex Opar as a 2nd respondent. On 5/1/94 the Chief Magistrate of Mengo who heard the petition delivered a judgement granting the petition. He granted custody of Patricia Adubango 12, a child of the marriage, to the appellant and awarded general damages of shs 1.8 million against the 2nd respondent for adultery and other inconveniences. The respondents who were not happy with the decision appealed to the High Court which upheld the appeal on the grounds that the appellant had not proved the existence of a valid customary marriage between him and the 1st

respondent and set aside all the orders of the Chief Magistrate relating to custody and damages . The appellant then appealed against that decision to this Court. The memorandum of appeal raises three grounds of appeal; -

- The learned trial judge erred in law in 1. allowing the respondents appeal on the ground that there was no marriage despite all the evidence on record proving the existence of the customary marriage between the appellant and the 1st respondent. - 2. The learned trial judge erred in law in granting custody of Patricia Tiwe Adubango to the 1st respondent without considering principles governing the grant of custody. - The learned trial judge erred in law in setting aside 3. the award of compensation against the 2nd respondent

His prayer is mainly for the restoration of the judgement and orders of the Chief Magistrate and costs of the suit.

The main issue for determination is whether there existed a valid customary law marriage between the appellant and the 1st respondent.

The brief facts that gave raise to this dispute are; -

$\overline{2}$

4.

In 1973 the appellant fe11 in love with the 1st respondent who was eti11 aE echool . During L974 and 1975 the 16t reepondent wae doing a course in nursing in Mengo llospital. when the appelLants tried to rnarry her in accordance with cuatom, both the 1st reapondent and her father refueed aaying tshat it was necessary for her to finieh her couree firet. When ghe finished her etudiee, eiEher voluntarily or through abduction which is accepted under their cuatom as a firat step towards marriage, the 1st respondent Btsarted cohabiting witsh the appeIIants in Kampala and dlinja tilt 1981 when the cohabitation brok6 up and she returned to her father in Nebbl . By thats time they had produced tshree children tsogether. In December 1981 the appellant went to the father of the 1Bt reEpondent in Nebbi and collected Ewo of their children leaving the yourgeat who \$raa then a few montshs o1d; -

On the queaEion as to how the marriage waE contracted the appellant testified: -

> "The reBpondent is my wife. I firet new her in 1973, after which ehe introduced me to her parente. She \das a girlfriend by then. I went with my brother t,o her parents.

> It was a narriage introduction. Thereafter her father EuggeBted that Bhe contLnuea vrith her education and I stay wl-th her later. I aponeored h€r for a two year courae in enrolled mJ.dwif ery. During the couree there wag a marriage ceremony.

My team tsook aome anlmals, 1 cow, Bome goatsa and cagh of ehe.2000/-. That waa dowry and around 1975. The second ceremony of dowry was the courae. That was one cow and 7 goats. The re6pondentB father gave my t,6am one goats arrd one aheep t,o be enJoyed. After thie cereDony she came !o me in Kampala, in uganda Electricity Board, Mbuya E6tate. Ot 23/12l1976 we had our fLret born, Emi1y. "

Under cross-examination the appellant teBtified: -

"The flret dowry was taken when He11en waa at Mengo. The father eaid he would be intereBted ln marriage after her echool . The father of Eellen did not mentlon how uuch dowry I had !o pay. I never confuged her and co-hibited wl. Eh her illegally. I ineiets I paid dowry alEhough it wae not asses6ed. There waa no Chlef or person in authority to witsneas tshe dowry pa)rrrentsa. I atsayed with Ee1len wlEh Ehe conBenE of her father.rl

Pw2 Chrigtsopher Olwor had tegtslfLed tshaE as a relatlve tso both partsieE he actsed ae a go-between and witnessed the payments of ² cowg and Beven goatsa whereas the app611ant 6aid he paid 1 cow, 7 goatB, 2OOO/- plua eponeorship of a courBe for He11en.

The 1st respondent and her father flatIy denied tshat any cuaEomary rnarriage had ever taken p1ace. The 1at reapondent admitstsed having written an introduction letter for tshe appellant

t

to her father when she was here in Kampala. She stated that the letter only introduced the appellant as an intending future husband. She did not accompany him home and she was not aware of him having ever paid any dowry. When she finished her course, he abducted her when she was returning from the market and brought her to Kampala. She agreed to stay with him hoping he would finalise the marriage but that never happened. When he started mistreating her, she left him and returned to her father.

PW3 Amulla Bettesaza, the father of the 1st respondent described the events as follows:-

> "Hellen Dhungira is my daughter. She was born in 1952. After her education she went for a course at Mengo Hospital. That was in 1974. There was no payment of fees at Mengo. I was giving her financial support for her upkeep. There was no other person assisting her. I knew the petitioner Ceaser Okumu, I knew him from the period when my daughter was at Mengo. Then he came to me in Mamba P. S., that he wanted to marry my daughter, Hellen. That was the first time for me to know Okumu. He came with Olwor whom I had at one time taught. Olwor is also my brother-in-law. He is a brother to my wife. Okumu came in 1974. It was Olwor who introduced the subject matter. Hellen in school. I was alone with my wife. I rejected the offer as I wanted Hellen to finish her studies and to be present. I did not give them a date of returning. They never

$\overline{5}$

gave me anything. I wrote to Hellen to inquire about Okumu's affairs. She replied that they had discussed with Okumu about the marriage but she wanted to complete her course first. Later on the same year, Olwor and Okumu returned. They were four that time. They found me and my wife. They persuaded me to accept the marriage, but I still objected. They gave Hellen's mother a gift of shs.2000/- but I objected to payment of dowry. They again went away. I know Alur customs. Okumu was also Alur. Alur culture and customs are the same throughout Nebbi district. In Alur customs, if one wants to marry, he comes to introduce the subject to the girl's father in the presence of the girl. The lady must be around to confirm the intention of the alleged husband. After second, Okumu never returned when Hellen completed her course in 1975, she came for holidays. One day she went to Nyaravur Market, Angal Division. Then Okumu captured Hellen from the market and took her home in Angulu. I was told by those who witnessed. That is a customary practice and it was normal as it had been known that Okumu would marry her."

The learned judge in the High Court evaluated this evidence and concluded:-

> "However be that as it may it was incumbent upon the petitioner/respondent to prove his marriage on a

balance of probabilities. It turns out his evidence in self explanatory and quite decisive in my view. The dowry was never assessed or fixed it would therefore not be easy to know whether the ceremony was complete so as to constitute an unassailable union. The fixing of the dowry is the basis of the ceremony of marriage. In some cases this could be merely a token, but it has to be assessed or fixed. I cannot therefore assent to the proposition that the midwifery course allegedly sponsored by the respondent was or could be part of the dowry. I pointed out that customary marriage is a contract between the relatives and members of both families rather than the immediate parties thus rendering the midwifery course a personal gift to the woman rather than part of the dowry. I think it should further be noted as PW4 Marcillian Ongietho 56, Alur elder put it that payment of dowry is a very happy occasion, attended by elders from both sides and elders in the village. However the respondent said there was neither Chief nor elder at the ceremony. I would add that though the 1st appellant was abducted at Nyaranur market which is a customary practice after which she cohabited with the respondent and $\mathbf{b}\mathbf{v}$ reputation both became known as man and wife, this would not constitute the union into a binding legal marriage in absence of any evidence of payment of dowry in full."

$\overline{7}$ Thie holding by the learned Judge waa attacked by ur. oIoya, learned coungel for the appeIIants. He pointed out Ehat the pa)rnent of dowry waa elearly establLehed in Ehe evidence of Pllll and PW2 whlch ehowed the dowry wae paid 1n two Lnatalmenta. He eubmlEtsed tshat tshle evldence wae corroborated by exhibit D5 in which the father of the Ist re6pondenE admlEE thats she waa the wife of the appellant and exhlbit P2, a 16tstser written by the advocate of the 1st respondent In which he alao ad.nits that there was a marriage batween her and the appe11ant,. Hls finaL eubmieeion on thLe point eras that sl,nce the appellant had proved that a ceramony of marriage had tsaken place followed by cohabitatsion, then a valLd cuatomary narriage had been proved. IIe relled on tshe cageg of:

- (a) Wanqo v Manano [1958] E. A. ¹²⁴ - (b) Francis v Bonaface [1959] E. A. ¹⁴⁵ - (c) Maneziva Aiiva v sabina ziyo Divorce Cauae No.8 (unreported).

On the reapondent e other hand Mr. Rwaganika, learned coungel for the Bulrmitted that !

- (a) There was no proof of a valid cuBtonary Iaw marriage. - (b) That evldence of PW1 and PW2 wae contradictory and unreliable on the iaaue of pa]rm6nt of dowry. - (c) Its was admittsed tshats no asseaBment of dowry ever took place and therefore none could have been paLd.

He also relied on the case of: Spivack v Spivack [1930] All E. K 133. Finally he submitted rightly we think, that exhibit D6 and P2, could not confer on the relationship of the parties a status of a valid customary marriage unless this had been otherwise proved. The burden was on the appellant and he failed. He prayed that this appeal be dismissed with costs.

As we have already observed, the central issue in this case is whether the appellant and the 1st respondent contracted a valid customary marriage any time between 1973 and 1981. The burden of proof in this case is on the appellant who asserts that there was such a marriage which he now seeks to have dissolved. The standard of proof is on the balance of probabilities. In order to discharge this burden he must prove that a ceremony of marriage took place between the two or/and their families followed by cohabitation of the appellant and the 1st respondent - See Wango v Manano (supra), Francis v Bonaface (supra) and Aiiyo v Onziyo (supra). According to the evidence on record, it seems the following events must take place, or at any rate most of them, to constitute a ceremony of marriage under Alur Culture: -

- (a) A meeting of elders of both parties to the intended marriage is convened at the home of the father of the woman to be married. - $(b)$ At that meeting, the woman introduces the man who wants to marry her and he is assessed dowry which he may pay in part then or later, or pay in full then or

later.

- As this is treated as a happy event, some cerebration $(c)$ which include rejoicing and feasting usually follow. - $(d)$ If the father of the girl is satisfied, he will allow the side of the man to take away the girl as a wife to the suitor.

We have carefully examined the evidence of both parties to see whether all, some or any of these events took place.

Firstly, there is no evidence whatsoever that any meeting of elders of both sides ever took place to witness the introduction of the appellant to the 1st respondent's parents. In fact the evidence of the 1st respondent was very clear on this and none sought to challenge it.

Secondly, the appellant himself admitted that he was never assessed any dowry at all and it is not easy to see how he could begin making dowry payments until he is assessed what he should pay. Since there was no assessment, the mode of payment could not have been agreed. The evidence of PW1 and PW2 who claim that payment was done is contradictory and highly suspect as it could not have been in accordance with custom (if any payment was done). The claim that part of the dowry was paid though sponsorship for a course is most likely a fabrication.

Thirdly, there is no evidence whatsoever that the father of the 1st respondent ever gave away his daughter to the appellant or even ever consented to their cohabitation. This suggests that any cohabitation that took place between 1975-1981 was not sanctioned under customary law of the Alur and was unlawful. Though the 1st respondent and her parents kept hoping that the appellant would rectify the position and lawfully marry her, this never happened till the cohabitation broke up.

Fourthly, any alleged admission contained in letter, which were exhibited as P2 and D6 written by the father of the 1st respondent and her advocate respectively could not confer on the illegal cohabitation of the parties a status of a legal marriage, unless a marriage actually existed.

Fifthly, it is significant to note that the appellant did not deem it necessary, in his prayers in the petition, to ask for a refund of the dowry. One reason could be that in fact he never paid any.

We think that the learned appeal judge properly evaluated the evidence and correctly came to the conclusion that the appellant had failed to prove the existence of a valid customary marriage between him and the 1st respondent. It follows that having come to that conclusion, she was justified to allow the appeal and set aside the trial court's orders on damages for adultery and the custody of Patricia.

We consequently dismiss this appeal with costs to the respondents here and in the two courts below.

Dated this ....................................

A. TWINOMUJUNI JUSTICE OF APPEAL

## THE REPUBLIC OF UGANDA

# a IN THE COURT OF APPEAL OF UGANDA

### HOLDEN AT KAMPALA

CORAM: J. P. BERKO, J. A., S. G. ENGWAU, J. A., AND A TWINOMUJLINI, J. A.

## CIVIL APPEAL NO. I OF I997

CEASER OKUMU APPELI-ANT

### VERSUS

HELLEN DHUGIRA.... IST RESPONDENT BEN ALEX OPAR............ ...................2No nESpONOgNT

> (Appeal fiom the judgement of the High Court of Uganda at Kampala (Hon. Justice Mpagi-Bahigeine) dated the l5'h day of December, 1995 in Divorce Appeal No. 7 of 1994)

#### JUDGEMENT OF S. G. ENGWAU. J. A.

I have had the chance to read the judgment of Twinomujuni in draft and I am in agreement with him. I have nothing more to add.

In the result, I would dismiss the appeal with costs to the Respondents here and in the two courts below.

S. G. ENG {f\* WAU

JUSTTCE OF APPEAL. t2.3.t998.