Kiwawa v Serunkuma and Another (Civil Suit 52 of 2006) [2007] UGHCFD 1 (5 May 2007)

Full Case Text

#### BRUNO L. KIWAWU Vs IVAN SERUNKUMAAND JULIET NAMAZZI

### **THE HIGH COURT AT KAMPALA (KASULE, J.)**

## **CIVIL SUIT NO. 52 2006**

## **MAY 5, 2007**

**Domestic Relations—Marriage—Marriage between parties from same clan—** Baganda custom—Whether parties can lawfully contract marriage under Marriage Act, Cap 251.

$15$ **Domestic Relations—Marriage—Marriage between parties from same clan—** Baganda custom—Whether parties can lawfully contract marriage under laws of Uganda.

**Domestic Relations—Marriage—Customary Marriages—Introduction ceremony—** Baganda custom—Whether failure to conduct formal introduction ceremony is a prerequisite to marriage under Marriage Act, Cap 251 and Marriage of Africans Act, Cap 253.

**Domestic Relations—Marriage—Customary Marriages—Consent from parents—** Failure to obtain consent—Whether obtaining consent from parents is a pre-requisite to marriage under Marriage Act, Cap 251 and Marriage of Africans Act, Cap 253.

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**Domestic Relations—Marriage—Customary Marriages—Custom—Definition of** custom—What are the prerequisites for recognition of custom as customary law.

The plaintiff instituted this suit to challenge the celebration of marriage of the first and second defendants on grounds that both defendants, like the plaintiff, being Baganda by tribe, belonging to the same clan of "Ndiga" that is to say, sheep, could not lawfully by reason of an obtaining custom, contract such a marriage. According to the plaintiff such marriage is abominable, immoral, unethical, illegal and uncustomary. The issues that came up for consideration inter alia were; whether the defendants being Baganda by tribe, and as such members of the same clan of "*Ndiga*", could marry under the Marriage Act, Cap 251, or any other laws of Uganda and whether failure to conduct a formal introduction ceremony and obtaining consent from the parents is a pre-requisite to contract a marriage under the provisions of the Marriage Act, Cap 251.

### Held:

(i) It is settled that where customary law is not documented or so notorious for the Court to take judicial notice of the same, it has to be proved in evidence. In this case, it was admitted that as Baganda by tribe and being of the same clan, a custom exists and applies to both defendants that, a Muganda man and a Muganda woman of the same clan cannot contract a marriage as between themselves.

(ii) A custom is defined as a practice that has been followed in a particular locality

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**5** in such circumstances that it is to be accepted as part ofthe law ofthat locality. In order to be recognized as customary law, it must be reasonable in nature and it must have been followed continuously, and as ifit were a right, since the beginning oflegal memory.

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(iii) Customary law must be in conformity with the Constitution; the supreme law in Uganda. Any custom inconsistent with the Constitution is void to the extent of the inconsistency.

(iv) The Marriage Act, Cap 251, recognizes the validity ofa customary marriage because at some point one can turn a customary marriage into a civil marriage and one cannot contract a customary marriage ifmarried under the Marriage Act, Cap 25,1. The Marriage Act therefore takes cognisance ofthe operation ofthe marriage customary laws. The Act does not exclude the observance of a customary law or practice by those intending to contract the type of marriage the Marriage Act allows. In this case, the custom in issue constituted lawful cause under the Marriage Act to successfully challenge the marriage ofboth defendants under the Marriage Act, Cap 251.

(v) Since the advent of the colonial era and Christianity (and Islam), native Ugandans kept to their customs in marriage, it became necessary for the religions to give due recognition to some ofthese customs in the celebration ofmarriage. Thus marriage celebrated under the Marriage Act became a combination of both what is religious and what is customary, while remaining essentially a church or a civil marriage and not a customary one. The Court takes judicial notice of this notorious fact ofthe fusion ofwhat is religious and what is customary as obtaining in Uganda in celebrating marriages under the Marriage Act. The customary law did not allow them to marry both being members ofthe same clan.

(vi) The Marriage Act, Cap 251 provides for challenging an intended marriage under the Act, on many other grounds, independent ofthe prohibited degrees of consanguinity. It does not follow therefore that once a couple satisfies the test of prohibited degrees ofconsanguinity, their intended marriage cannot be challenged on other grounds, such as violating the customs ofclan mates not marrying each other.

- **35** (vii) There is no reason why the custom in issue can apply to a customary marriage and yet cannot apply to a marriage under the Marriage Act when, whether under the Marriage Act or the Customary Marriage (Registration) Act, the defendants remain ofthe same tribe and the same clan. The custom ought to apply in both cases. In both cases its violation makes the marriage void. - **40** (viii) A custom is repugnant to justice and morality if it causes aversion and disgust to the principles of good behaviour and as to what is reasonable and fair. A custom which is repugnant violates natural justice, equity and good conscience. In this case, the custom that parties from the same clan cannot contract a marriage, is not barred and is not in conflict or inconsistent with the Marriage Act, Cap 251,

or with any other written law. It is also not repugnant to natural justice, equity and good conscience.

> (ix) It is a custom ofthe Baganda as a tribe that before a marriage is contracted, it is preceded by an introduction ceremony.

**10** *Judgment enteredfor plaintiff.*

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## **Legislation considered:**

Customary Marriage (Registration) Act, Cap 248, Section 11 (d) and second schedule Evidence Act, Section 101

Hindu Marriage and Divorce Act, Cap 250, Section 1 (a)

- **15** Judicature Act, Cap 13, Sections 14 and 15 Judicature Act, No. 11 of 1967, Section 3 (2) b (ii) Magistrates Courts Act, Cap 16, Sections 1 (a), 10 Marriage and Divorce ofMohammedans, Cap 252 Marriages Act, Cap 251, Sections 10 (c), 12,13,21,29,36,49,50 Marriage ofAfricansAct, Cap 253 - **20** Penal Code Act, Cap 120, Section 149(1) The Constitution ofthe Republic ofUganda, 1995, Articles 2,31,32 (2), 37,43,246

## **Cited cases:**

**Kinami** *Vs* Gikanga [ 1965] EA 735

Magwi Kimito *Vs* Gebeno Werema [ 1985] TLR 132

- **25** Marko Kajubi *Vs* Kulanima Kabali ExtA34 1944 R P's**Amkeya [1917]** EA Lukwago *Vs* Kizza and Another [ 1999] 2 EA 142 - Virginia Edith Wamboi Otieno *Vs* Joash Ochieng ongo and Omolo Sirange [1982] **1 KAR1049**

#### **30 Other legal materials referred to:**

The Application ofCustomary Law in Uganda: By ProfessorJoseph M. N. Kakooza: In the Uganda Living Law Journal ofthe Uganda Law Reform Commission: Volume. 1, No. 1 of2003

Dictionary ofLaw, 4th Edition, Oxford University press by Elizabeth A. Martin, Page 122

# **35 JUDGMENTOFCOURT**

The Plaintiff instituted this suit to prevent celebration ofthe marriage ofthe first and second Defendants on the ground that both defendants, like the Plaintiff, being Baganda by tribe, belonging to the same clan of"Ndiga" i.e. Sheep, cannot lawfully by reason of an obtaining custom, contract such a marriage.

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It is the Plaintiff's case that such a marriage **"is** abominable, immoral, unethical.

uncustomary, illegal": paragraph 20 ofthe plaint.

The first Defendant a male, aged 29 years, is a medical doctor.

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| 10 | of The University graduate second Defendant female, aged 30 years Makerere is a a Agriculture Research (Economics) employed International Food Policy Institute, by Kampala. | |----|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | ofthe The Plaintiff asserts to Defendant be the biological father second | | 15 | admitted celebrate a marriage It is an fact that both Defendants planned to Holy in Matrimony University, Kampala. 24th June 2006 at Francis Chapel, Makerere on St. | | | suit Order staying This was then instituted 23rd June 2006. Court issued an Interi on ofthis intended marriage pending disposal suit the | | 20 | of joint Defendants written statement defence. The second Defendant Both filed a Plaintiff that the Plaintiff denied the her biological however admitted as father. She of her university education. cared and supported her birth completion She from to Plaintiffdid beliefthat claimed, the under mistaken she, the second Defendant, so the was his biological daughter. | | 25 | her Since father was not the Plaintiff, but one Akiiki, Mutoro by tribe, the second a ofthe "Ndiga" Defendant contended Sheep clan Plaintiff. she did not belong to the i.e. There wasthus her marrying the first Defendant no custom applying to stop from to her, | | | of clan The Defendants also contended that marriage between the two them, as a ifthis mates, was the case, would merely culturally repugnant, but not illegal as the be of of written law prohibited degrees consanguinity not cover did then. | | 30 | ofthe Plaintiffto Further, both Defendants being years above, old, the consent and 21 their marriage was unnecessary. | | 35 | July 2006, before Plaintiff second defendant agreed, and On Court, the and the 12th of subsequently took DNA test. The Report the test was filed Court a DNA by in consent 26th October on 2006. | | | At conferencing the following matters were agreed upon:- | | | ofthe It was conceded that the Defendant result DNA test Report second as a 1. ofthe was biological daughter Plaintiff. a | | 40 | of The father the first Mr Kayigwa, Muganda Defendant Samuel a by is 2. of"Ndiga" Tribe, i.e. Sheep clan. | | | of"Ndiga' Plaintiffis The a Muganda by tribe and i.e. Sheep clan. 3. | | | |

- 4. The first Defendant's biological father is not a blood brother ofthe Plaintiff. - 5. The first Defendant's biological mother is Ms. Joyce Nsamba. - 6. The Second Defendant's biological mother is Ms. Nalongo Ndagire Catherine Binaisa. - **7.** The first Defendant's biological mother, Ms. Joyce Nsamba, and the second Defendant's biological mother, Ms Nalongo Ndagire Catherine Binaisa, are not blood sisters. - **8.** Amongst the tribe ofBaganda, a custom obtains that clan-mates i.e. a man and a woman ofthe same clan do not contract a marriage as between themselves. - **9.** Holding a formal, introduction before marriage whereby the families ofthe bride and bridegroom meet before marriage is a custom ofthe Baganda as a tribe.

The framed issues are:-

- (a) Whether or not the Plaintiffis a biological father ofthe second Defendant. - (b) Whether the defendants, being Baganda by tribe and being members of the same "Ndiga" i.e. Sheep clan, can lawfully contract a marriage underthe Marriage Act, Cap.251. - **25** (c) Whether the defendants being Baganda by tribe and being members of the same "Ndiga" i.e. Sheep clan, can lawfully contract a marriage underthe laws of Uganda. - (d) Whether failure to conduct a formal introduction ceremony and obtaining consent from the parents is a pre-requisite to contract a marriage under the provisions ofthe Marriage Act, Cap.251. - (e) What are the remedies available to the parties?

Both Defendants abandoned the claim in their counterclaim in the suit

**35** Parties opted not to adduce any formal evidence by Witnesses. Reliance was on the admitted facts, the DNA test Report the pleadings and annexures thereto.

Respective written submissions were filed.

For Plaintiff, it has been submitted that: celebration ofmarriage under the Marriage Act may be halted forjust cause, and that violating an established custom, such as the one in issue, is such a just cause.

Further, that Article 37 ofConstitution and Sections 14 and 15 ofJudicature Act, Cap. 13, enjoin Court to enforce the custom in issue as the same are enjoyed by the Baganda as a tribe as a constitutional right

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**5** For the Defendants, it was contended that the custom in question do not apply to their intended marriage which is under the Marriage Act, and not under the Customary Marriage (Registration) Act, Cap.248.

The custom was not part of the prohibited degrees of consanguinity under section 149 of Penal Code Act, Cap. 120 and Section 11 (d) and second schedule of the Customary Marriage (Registration) Act.

Court will proceed to resolve the issues framed.

As to the first issue, the DNA test report, accepted by both sides to the case, established that the Plaintiffwas biological father ofsecond Defendant

The first issue is therefore resolved by declaring that the Plaintiff is\* the biological father of the second Defendant

The second and third issues are to be considered together. The two are paraphrased together as:-

Whether both Defendants being Baganda by tribe, and as such members ofthe same 'Ndiga' i.e. Sheep clan, can marry under the Marriage Act Cap.251, or any other laws of Uganda.

**25** It is settled that where customary law is not documented or so notorious for court to takejudicial notice ofthe same, it hasto be proved in evidence: **KIMANI VS. CIKANGA [1965] E. A.** 735.

• **In** this case, it is admitted that as Baganda by tribe and being of the same clan, **a** custom exists and applies to both Defendants that a Muganda man and a Muganda woman ofthe same clan cannot contract a marriage as between themselves.

The issue forresolution is whether, given the provisions ofthe Marriage Act, Cap.251, or any other written laws, such a marriage under the Marriage Act is still illegal by reason ofthis custom.

"A Custom" is defined as.

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**"A practice that has been followed in a particular locality in such circumstances that it is to be accepted as part ofthe law ofthat locality. In order to be recognized as customary law, it must be reasonable in nature and it must havebeen followed continuously, and as ifit were a right, since the beginning oflegal memory.**

#### **5** See **a Dictionary ofLaw, 4,h Edition, Oxford University Press: Editor Elizabeth A. MARTIN: P. 122.**

The beginning oflegal memory varies from society to society with England having the year 1189. Customary laws were in existence in Uganda before colonialism that came in the 1800s.

**10** As to a statutory definition, the Hindu Marriage and Divorce Act, Cap.250, section 1(a) defines:

> **"Custom" means a rule which, having been continuously observed for a long time, has attained the force oflaw among a community, group or family, being a rule that is certain and not unreasonable, or opposed to public policy and, in the case ofa rule applicable only to a family, has not been discontinued by the family."**

Court finds the above two definitions as stating the essentials of a custom.

**20** A set of customs constitute the customary law of a particular society. Section 1 (a) ofthe Magistrates Courts Act Cap. 16, states customary civil law to be:

## **"The rules ofconduct which govern legal relationship as established by custom and usage and nor forming part ofthe common law nor formally enacted by Parliament"**

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Customary law may exist and operate on its own or side by side or complementally to another different nature of law. It is established, accepted and binding on a given society or tribe in their social relations. It may be uniform to a number ofsocieties or tribes or it may vary from one to the other; and from area to area.

**30** In pre-colonial Uganda, customary laws regulated the affairs of Ugandans; marriage inclusive.

Colonial administration enacted the Marriage Act now Cap. 251, The Marriage ofAfricans Act now Cap. 253 on 1sl April 1904, and the Marriage and Divorce ofMohammedans, now Cap 252 on 15th April, 1906.

- **35** The above laws were, in the main, enacted on the basis ofrace and religion. In general terms, the Marriage Act regulated marriages of non-African Christians, while the Marriage ofAfricans Act catered for Christian Africans, and the Marriage and Divorce of Mohammedans Act handled those ofArabs and African Mohammedans. In 1961, the Hindu Marriage and Divorce Act Cap.250, was enacted for Hindus. - **40** The above la are the laws governing Ugandan marriages up to now. They have been joined by the Customary Marriage (Registration) Act Cap 248, enacted in 1975 to provide for registration ofcustomary marriages.

**5** Overtime, the distinction between the Marriage Act and the Marriage ofAfricans Act has disappeared with Ugandans celebrating their marriages under both Acts. The two Acts are inclusive and not exclusive of each other.

As to recognition and application ofcustomary laws, colonial administration in Uganda gave due recognition to the same, where it s deemed appropriate.

- **10** Colonial Uganda did not suffer the misguided racial judicial decisions such as Kenya did, for example, in **R. vsAmkeyo [1917]** E. A, where Hamilton, CJ., Kenya, allowed a customarily married African woman to testify against her husband, because according to this Judge, a customary African marriage, is like buying chattel. It was a misnomer to refer to the same as a marriage at all. - **15** By way ofcontrast in Uganda, as early, as 1895, an agreement between Kabaka Mwanga and the Consular General, Portal representing the British, provided for a dual system for the administration ofjustice, whereby native courts, applying customary law for the natives were to operate with other courts administering British las for non natives. - **20** By the 1902, Uganda Order in Council, Colonial administration s to respect existing native laws and custom that were not repugnant to justice and morality.

In 1944, **Sir John Gray, CJ; in MARKO KAJUR1 VS.. KULANIMA KABALI II Ext A34 [1944]** upheld a Kiganda custom, that both legitimate and illegitimate children are entitled to share in the estate oftheir deceased father. He stated:

**"I am fully satisfied that this is a custom which is unimpeachable at law and also one which no court ought to try to go behind"**

In 1965, post independent Uganda Government setup the "Kalema commission" on Marriage, Divorce and status ofwomen to consider laws and customs on marriage and divorce and status of women.

This Commission concluded in the Report that they had found Ugandans, while ready to discard customs that had outlived their usefulness, they very much desired of preserving and applying those customs whose outstanding wisdom had been passed over from generation to generation; as long as those customs were consistent with justice, morality and the written law.

The parameters ofcustomary law being consistent with justice, morality and the written law, first introduced by the 1902 Order-in-Council, have been retained through various legislations to-date.

Section 3 (2) b (ii) ofthe then Judicature Act 11/67 provided:-

**"(2). subject to the provisions ofthe Constitution and ofthis Act, the jurisdiction**

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| 5 | Court ofthe shall exercised, High be subject written and far or to any does not extend (b) law, so as apply, in conformity with, in current any established and custom or usage." (i) | |----|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 10 | 11 /67: successorto The Act The Judicature Statute 13/96, now Judicature Act, Cap 13, thereof section provides: 14 | | | "The Court ofUganda subject Constitution, High shall, tile have unlimited to originaljurisdiction matters and appellate and otherjurisdiction in all such as conferred the or other may be it by Constitution this Act and any on law. | | 15 | subject the Constitution and jurisdiction Court to this Act, the ofthe High (2) shall exercised. be | | | conformity the written in with including any law, law in force (a) ofthisAct immediately before the commencement | | 20 | far subject any written and the 1written to law as law does not in so (b) or extend apply, conformity with: in | | | (0 | | | current or established and Any custom usage." (ii) | | 25 | ofthe Section Act same provides: 15 "Nothing deprive Court right or this Actshall the ofthe observe High to in orshall enforce the observation deprive of any person ofthe benefit any of, repugnant natural existing custom, not justice, which to equity and good is either or conscience and not incompatible directly implication necessary by with any written law" | | 30 | ofthe Section Magistrates Courts Act, Cap. similar 10 is terms. 16, in | | | InTIFU EA142, LUKWAGO KIZZA& ANOTHER theCourt VS. unreported, [1999] 2 ofthe considered the above provisions law and held: (Mulenga JSC),: | | 35 | that The upshot of these provisions they hierarchy of set out the laws, is doctrines, principles and practices and court must usages the apply which in jurisdiction or for exercising its decide disputes before it to issues primarily determination. Custom common doctrines of like law and equity, is written to applied where the be law silent. is | | 40 | court and the expressly preserved the right of the apply Secondly, Act to | | 5 | of custom not repugnant the right any person benefit from, such as is to to incompatible naturaljustice, conscience and not with any equity and good is written law." | |----|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | 10 | ofcourse, conformity with There saying that customary law must be is, no gain in the inconsistent Constitution; custom with the Supreme Uganda. Any law the in ofthe ofthe Article Constitution. Constitution the extent inconsistency: is void to 2 | | | ofthe The National objective number III (iii) Constitution and directive principle states: | | 15 | ofcooperation, "Everything understanding, shall done promote culture be to a other's custom, traditions appreciation, tolerance respect for each and and beliefs.", XXIV and objective provides: | | | "Cultural consistent with fundamental and customary values which are rights Constitution and freedoms, dignity; democracy and with the may human be ofUgandan developed incorporated aspects life. or in | | 20 | The state shall— promote values practices which enhance (a) and preserve the cultural and the ofUgandans;" dignity and well being | | | of of This objectives principles court; necessity takes guidance the above and from Constitution. the | | 25 | ofthe Under Article right and Freedom that. Constitution fundamental 37 it is a | | | practice, Every belong enjoy, profess, person has right applicable to, as to a maintain institution, language, tradition, and promote any culture, cultural creed or others." religion community with in | | 30 | of Constitution traditional The provides Article for the institution Ruler/ under 246 a Cultural Leader traditions, wishes in accordance with the culture, custom and and ofthe aspirations people to whom the institution applies. | | 35 | restoring the application, By such institution, Constitutionally provided for Ugandans, of observance adherence their varied respective societies and cultural values to the Kakooza, has and communities. This professor N. rightly so, because as J. M. is observed: | | 40 | "It needs argument been or there no society where there has that any is in a of living living symbol traditional Ruler Ruler or Leader, the a or that Leader, traditional ofthat attached the and cultural society, has by characteristics himselfor culture herself of values." to a number cultural |

See: **TheApplication ofCustomary Law in Uganda: by ProfessorJoseph M. N. Kakooza: In the Uganda Living Law Journal of the Uganda Law Reform Commission: Volume I Number 1,2003 at P.31.**

Given that Judicial power is derived from the people, and courts exercise the same in the name ofthe people and in conformity with law, the values, norms and aspirations of the people, it is right to conclude that the 1995 Constitution promotes the application and observance ofcustomary laws that enhance the dignity and well being ofUgandans.

It is submitted for the defendants that the custom in question is not enforceable against them as it is contrary to, or subject to or is inconsistent with the written law, the Marriage Act, Cap.251. The custom could only be enforced against them ifthey were customarily contracting a marriage under the customary marriage (Registration) Act, Cap.248. Their intended marriage is not such a marriage.

With respect; this argument is not right in law or in fact

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**20** The Marriage Act; Cap.251, recognizes the validity ofa customary marriage. Section 29 acknowledges such a marriage and provides that the same may be turned into a civil marriage under the Act. Section 36 also acknowledges the same marriage and prohibits one married under the Act to contract another marriage under customary law. Sections 49 and 50 make it a crime to violate section 36.

**25** By acknowledging the validity of a customary marriage, the Marriage Act takes cognizance ofthe operation ofmarriage customary laws.

There is no provision in the Marriage Act that excludes the observance ofa customary law or practice by those intending to contract the type of marriage the Marriage Act allows.

**30** On the other hand, the very Marriage Act, Cap.251, has in it provisions allowing one to challenge the celebration of marriage under the Act on the basis of the objector establishing a "lawful hindrance" s. 10 (c), or "a lawful impediment" S. 12 or "Just Cause" s.13, or "just impediment" s.21.

In the considered view of court, the custom in issue, constitutes lawful cause under any of the above Sections of the Act to successfully challenge the marriage of both defendants under the Marriage Act, Cap.251.

ProfessorJ. M. N. Kakooza in his article (Supra) at pp.33 and 34 observes, and court has no reason to disagree with him, that because of the fact that, over time, since the advent of the colonial era and Christianity and Islam, native Ugandans kept to their customs in marriage, it became necessary for the religions to give due recognition to some ofthese customs in the celebration ofmarriage.

Thus a marriage celebrated under the Marriage Act became a combination of both

**5** what is religious and what is customary; while remaining essentially a church or a civil marriage and not a customary one.

Court takes Judicial notice ofthis notorious fact of a fusion of what is religious and what is customary as obtaining in Uganda in celebrating marriages under the Marriage Act

**10** Further, Court notes that the Marriage ofAfricans Act, Cap.253, is still an operative and effective law. The intended marriage ofboth defendants is within the ambit ofthis Act Section 4 ofthe Act provides:

> "The formalities preliminary to marriage established, usual or customary for the Africans in the religion to which the parties belong shall apply to the marriages under thisAct,...."

This section ofthe Act directly applies the custom in issue to the intended marriage of the defendants. Resolving whether or not customary laws and practices allow them to get married is one of the preliminaries the defendants have to first sort out before applying to contract a marriage under the written laws.

In this particular case, as a preliminary, the customary law does not allow them to marry both being members ofthe same clan.

The other aspect of the defendants' case is that the written law, section 149 of the Penal Code Act, Cap. 120, and the Customary Marriage (Registration) Act, Cap.248, set out the prohibited degrees of consanguinity, whose marriages become null and void. Clan-mates marrying each other is not included in the categories ofthe written law. Therefore the defendants are free, under the written law, to contract a marriage between themselves.

**30 -** The answer to the above argument is that the Marriage Act, Cap.251, provides for challenging an intended marriage under the Act, on many other grounds, independent of the prohibited degrees of consanguinity. It does not follow therefore that once a couple satisfy the test of the prohibited degrees of consinguinity, their intended marriage cannot be challenged on other grounds, such as violating the custom of clan-mates not marrying to each other..

**35** It is also noteworthy that section 11(d) ofthe Customary Marriage (Registration) Act Cap.248 provides that a marriage is void ifit is prohibited by the custom ofone ofthe parties to the marriage.

Court received no reason, and sees none, why the custom in issue can apply to a customary marriage and yet cannot apply to a marriage under the Marriage Act when, whether under the Marriage Act or the Customary Marriage (Registration) Act the defendants remain ofthe same tribe and same clan. This court holds that the custom ought to apply in both cases. In both cases its violation makes the marriage void.

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## **5** On pages 8 and 9 ofthe written submissions for defendants, it is stated that; "**Members ofthe Mamba clan are allowed to marry from amongst themselves..'**

Apart from being in contradiction with the admitted custom that amongst the Baganda clan-mates do not marry each other, this statements of defendants' Counsel from the Bar, with no evidence at all having been adduced to substantiate or explain the submission.

Customary law that is not documented or so notorious to be taken judicial notice of, has to be proved by evidence: See **KIMANI VS GIKANGA [1965] ER 735.**

**15** Court is not putting reliance on the statement, as it is not proved as a custom or an exception to the already admitted custom amongst the Baganda. At any rate the defendants do not claim to be ofthe Mamba i.e. Lungfish Clan.

It remains for court to decide whether the custom in issue meets or does not meet the test set by the Constitution and the Judicature Act for it to be applied or not applied to the intended marriage ofthe defendants.

As already considered, Uganda applies her customary laws subject to a number ofset parameters.

In Tanzania, unlike Uganda, theTanzanian Court ofAppeal has held Tanzania Customary law to have the same status in courts as any other law, subject only to the Constitution or any statutory law to the contrary: See: **MACWIKIMITO V. CERENO WEREMA [1985] TLR 132.**

In Kenya, the common law, in absence ofwritten law, is the law ofsuperior courts, but the courts in exercising theirjurisdiction are guided by the customary law, ifit is not repugnant to justice or morality.

The Kenya High Court case of **Virginia Edith Wambol Otieno vs. Joash Ochleng Ongo & Omolo Sirange [1982-88] I KAR 1049,** has relevance to the case before this court.

The brieffacts:-

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S M. Otieno, a celebrated lawyer, died intestate in 1986. He was Luo by tribe, a Christian by religion. His wife was a Kikuyu and also Christian.

As a Luo, the deceased, as head of his clan; with obligation to arrange burials ofthe clan members. He carried out these obligations, now and then, but otherwise he was detached from his tribal origins and custom. He lived with his wife and rest offamily in an urban environment as an upper-class professional.

On death, his widow sought to bury his remains on the deceased's farm home; away from the Luo burial grounds ofhis ancestors, where customarily he would normally be buried.

The deceased's brother and nephew, basing on Luo custom, insisted to bury him at the Luo ancestral grounds.

The issue as to who had the right to bury the deceased turned on the customary law ofthe Luo vis-a-vis the rights ofthe widow as wife of deceased.

The case was resolved by the Kenya High Court, after the Kenya Court ofAppeal had ordered a re-trial ofthe case.

## **15** The High Court held:

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- 1. At present there is no way in which an African Citizen ofKenya can divest himselfofassociation with the tribe ofhis father ifthe custom ofthe tribe are patrilineal. - **20** 2. Pursuant to the Kenya Judicature Act, the common law, was, in absence of statute, the law of Kenya is superior courts, but those courts in exercising theirjurisdiction, are guided by customary law which is not repugnant to justice and morality. - 3. **25** There is nothing repugnant or immoral about Luo customary law and as a man cannot change his tribal origin, Luo courts must be guided by that law in the case of the Luos - 4. Generally speaking the personal law of Kenya is customary law in the firstinstnce. - **30** 5. The widow, though a non-Luo, fell in the context ofall wives married to Luo men who are subjected to Luo customary law. - 6. Under the Luo customary law, by which the widow was bound, she had no right to bury her husband, the deceased's clan takes charge of his burial, taking into account the wishes ofthe deceased and his family. - 7. There was no inconsistency of Luo customary law with the Kenya Succession. Act. - 8. A wife who is not the personal representative of her deceased husband has no duty to bury him. In the absence of customary law, the duty can lie only with the personal representative of his estate.

The above decision though not binding, being of neighbouring Kenya Jurisprudence

**5** and dealing with application ofcustomary law of a tribe in the Region, is persuasive to this court. This is the more so because, there are similarities, in the "Otieno" case and this case.

The Baganda customs, like the Luos, are patrilineal. Customary law in Kenya, like in Uganda, must not be repugnant to Justice and morality. In both societies, one cannot change one's tribal origins. Generally, personal law in Uganda, like in Kenya, is first and foremost, customary law. Like in Otieno's case, Court called upon to resolve whether there was inconsistency between. Luo custom and the written law. Kenya Succession Act in this case, courts called upon to resolve whether there is inconsistency between the Kiganda Custom and the written law, the Marriage Act, Cap.251.

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**15** A custom is repugnant to justice and morality ifit causes aversion and disgust to the principles of good behaviour and as to what is reasonable and fair.

Further, when a custom goes contrary to the rules ofbehaviour basic to human nature, and is contrary to what is morally right and acceptable, then such a custom violates natural Justice, equity and good conscience.

Court notes that the custom in issue, in this case, relates to the institution ofmarriage amongst the society ofthe Baganda as a tribe. It therefore goes to the creation ofthe very basic unit of any human society: the family.

**25** The observance or non observance ofthe custom in issue is therefore offundamental importance to the Baganda as a society, and to other tribes in Uganda, who observe the same custom, in that in case if non-observance ofthe custom, the age-long social set up ofthe societies concerned has to fundamentally change.

Court is conscious of Article 31 of the Constitution as amended by the Constitution (Amendments) Act 11/05, entitling a man and a woman ofeighteen years and above to marry and found a family.

Article 32(2), as amended, prohibits any laws, cultures, customs and traditions which are against the dignity, welfare or interest ofwomen or which undermine their status.

**35** The above two articles have, of course, to be read and applied together with Articles 37: Right to culture, and Article 43: General Limitation on Fundamental and other Human Rights and Freedoms

Court does not find it established that the observance of the custom in question violates any ofthe above Articles, or any other provision ofthe Constitution.

**40** Having considered the facts of this case, the law and decided Court cases, within and outside Uganda, court holds that the custom in issue is not barred and is not in conflict or inconsistent with the Marriage Act, Cap. 251, or with any other written law. It is also not repugnant to natural justice, equity and good conscience.

**5** Issues numbers two and three are therefore answered in the negative.

The fourth issue is whether failure to conduct a formal introduction ceremony and obtaining consent from the parents is a pre-requisite to contracting a marriage under the provisions ofthe Marriage Act, Cap. 251.

**10** The issue is vague in its language. It is not clear who are the parents to give the consent.

> Vagueness apart, Court received no evidence, oral or documentary or otherwise, as to what is entailed and has to be done at an introduction ceremony ofthe Baganda that is held before marriage.

> The burden was on the Plaintiffto prove the issue in its entirety as he is the one who asserted its existence: see Section 101: The Evidence Act; this burden, in the view of Court was not discharged.

**20** In the circumstances Court declines to state more on the issue, other than declaring the admitted fact that holding a formal introduction before marriage is a custom/ practice among the Buganda as a tribe.

The last issue number five is what remedies are available to the parties.

**25** The Plaintiff has succeeded on the first second and third issues. He is therefore granted the prayers on those issues. Plaintifffailed to prove the fourth issue. Only a declaration ofthe admitted fact under this issue will be granted by Court

As to the prayer for damages, whether general or special, Plaintiffadduced no evidence to prove his being entitled to the same. At any rate, given the nature ofthe case, where Plaintiffis biological father ofsecond Defendant and the first Defendant was intending to be son-in-law ofthe Plaintiff, but forthe custom, Court in its discretion, would have awarded no damages to the Plaintiff.

Accordingly Judgment is entered for the Plaintiff Jointly and severally against the Defendants for:

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- **35** (a) A Declaration that the Plaintiffis the biological father ofthe second Defendant. - (b) A Declaration that the first and second Defendants intended marriage is illegal, null and void by reason ofthe custom that, being Baganda by tribe both belonging to the same 'Ndiga" i.e. Sheep Clan, the Defendants cannot lawfully contract a marriage as between themselves. - (c) A Declaration that it is a Custom of the Baganda as a tribe that before a marriage is contracted, it is preceded by an introduction ceremony.

(d) A Permanent injunction is hereby issued restraining the first and second defendants form contracting a marriage as between themselves.

For the same reasons given for not awarding damages to the Plaintiff, other than non proof ofthe same, Court orders each party to bear its own costs ofthe suit.

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