Nabisere v Kizito (Civil Appeal 1 of 2023) [2023] UGHCFD 22 (26 June 2023)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MPIGI **FAMILY CIVIL APPEAL NO.001 OF 2023** (Arising from Misc. Application No.24 of 2022) (Arising from Mpigi Divorce Cause No.001 of 2022)

## AISHA NABISERE MUKAMUSINZI:::::::::::::::::::::::::::::::::::

### **VERSUS**

MUHAMAD KIZITO:::::::::::::::::::::::::::::::::::

### BEFORE: HIS LORDSHIP HON. JUSTICE OYUKO ANTHONY OJOK 20 **IUDGMENT**

### Introduction:

This is an appeal against the decision of the Ag. Chief Magistrate of Mpigi Her Worship Jane Francis Nanvuma of the Chief Magistrate's Court of Mpigi at Mpigi dated $6/2/2023$ in Miscellaneous Application No. 0024 of 2023.

### Brief background:

The respondent filed Divorce Cause No. 001 of 2022 against the appellant in the Chief Magistrate's court of Mpigi at Mpigi.

The respondent stated that on the 21st day of February 1988 he married the appellant under the Marriage and Divorce of Mohammedans Act at a ceremony 30 that was held at Kitagobwa Mosque in Mpigi, now Butambala District. That after the marriage, the respondent moved and lived with the appellant at Bwamulamira, Sabawali, Kifampa – Bulo, Kitagobwa in Butambala District and had two issues.

The respondent alleged that the appellant disappeared in 1991 and since then had never returned to the marriage whereof she denied the respondent his conjugal 35 rights. He also got to learn that the appellant had started leaving with another man which led the respondent to petition for divorce to enable the appellant to remarry.

It's the appellant's case that the respondent did not indicate whether there are any properties to the marriage he intends to dissolve to enable the court determine whether it has pecuniary jurisdiction.

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Whereas, the respondent stated that he never did so because they had no property 10 what so ever, since they were living in a rented house during their marriage.

The appellant filed Misc. Application No.024 of 2022 challenging the petition; at the time of the hearing, the trial Magistrate Grade 1 found that she did not have jurisdiction to entertain the matter and forwarded the file to the Chief Magistrate for guidance. The Chief Magistrate went ahead and entertained the application

15 and dismissed the same.

The appellant being dissatisfied with the said decision brought the instant appeal whose grounds are as follows;

1. The learned Chief Magistrate erred in law and fact when she entertained a file transferred to her by the Trial Magistrate Grade one for lack of jurisdiction. 20

2. The learned Chief Magistrate erred in law and fact when she applied the Divorce Act in Mohammedan marriage proceedings.

3. The learned Chief Magistrate erred in law and fact when she concluded that there was a valid marriage and desertion before hearing evidence in Divorce Cause No.001 of 2022.

4. The learned Chief Magistrate erred in law and fact when she held that Divorce Cause No.001 of 2022 was not time barred while applying the Divorce Act not the Mohammedan Act and the customs of the Mohammedan sect.

5. The learned Chief Magistrate erred in law and fact when she exercised her supervisory powers wrongly by making a decision in Misc. Application No.0024 30 of 2022 which matter was heard by the Magistrate Grade One.

6. The learned Chief Magistrate erred in law and fact when she failed to consider that the petition was defective for being commissioned by the lawyers prosecuting the same case.

7. The learned Chief Magistrate erred in law and fact when she held that the 35 pecuniary jurisdiction was not necessary in divorce matters.

8. The learned Chief Magistrate erred in law and fact when she granted costs in Misc. Application No.0024 of 2023 to the respondent.

#### Representation: 10

Counsel Mulongo Peter appeared for the Appellant while Counsel Mugabi Sirus together with Counsel Kato Hassan appeared for the Respondent. Both parties filed written submissions.

### **Submissions:**

### Ground 6: The learned Chief Magistrate erred in law and fact when she failed to 15 consider that the petition was defective for being commissioned by the lawyers prosecuting the same case.

Counsel for the appellant submitted that the respondent filed the petition in Divorce Cause No.001 of 2022 on the 28<sup>th</sup> February 2022 accompanied by a 20 verification and a certificate of translation which were commissioned by Bara Mark Shyaka an advocate and commissioner for oaths working under the law firm of Mugabi, Shyaka and Co. Advocates. That the petition was incompetent for offending provisions of The Commissioner for Oaths Act cap. 5, The Illiterates Protection Act Cap. 78 and the Oaths Act Cap. 19.

Counsel relied on **section 1** of The Oaths Act to submit that the oath for the blind 25 and illiterates is provided for under the first schedule form B which form was never followed by the respondent's counsel when verifying the document. He also relied on the case of Kasaala Growers' Co-Operative Society v. Kakooza Jonathan & **another, SCCA No.19 of 2010** where Justice Okello as he then was held that the Act was intended to protect illiterate persons and the provision is coached in 30

mandatory terms.

Counsel for the appellant added that there was no valid marriage between the Appellant and the Respondent due to nonexistence of the marriage certificate and the marriage was not registered as provided for under **Section 14** of the Marriage and Divorce of Mohammedan Act.

In response counsel for the respondent submitted that in the application for leave to appeal it was never brought to the attention of the lower court that the appellant intended to invoke this ground, since, it was never addressed or raised as preliminary objection. That in the circumstances the appellant is raising fresh issues for determination. That under this ground the appellant's only contention is that the petition is defective for being commissioned by the lawyers prosecuting the case. However, they smuggled in issues of jurat and the Illiterate Persons Protection Act which should have been brought up with leave of court as separate

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grounds of appeal. Thus, such submissions that are outside Ground 6 as laid out in $10$ the Memorandum of Appeal should be disregarded and being blind does not mean that one is illiterate.

Counsel further submitted that even if the petition was commissioned by a lawyer from the same law firm as the one representing the petitioner, this is not fatal because he is not the one in personal conduct of the malter. And is not a conflicted party in terms of Section 4(1) of the Commissioner for Oaths (Advocates) Act. And relied on the case of Kampala District Land Board v. Fancy Stores 2005 Limited, **HCMA No. 2396 of 2017.** He added that the petition is a standalone document that cannot be rendered incompetent because of a defective verification. (See: Mpanga Farouq v. Sekubuge Isaac & Another, E. P. A No. 13 of 2021). $20$

Counsel concluded that non-compliance with Section 31 of the Divorce Act and Section 1 & the schedule of the Oaths Act can be cured by Article 126 (2) (e) of the Constitution and relied on the case of **Mpanga Farouq v. Senkubuge (Supra)** citing the case of Hon. Lokeris Samson v. Komel and the Electoral Commission, Election

**Petition Appeal No. 09 of 2021** where it was held that; 25

> "Where the trial court finds that the affidavit accompanying the petition" (principal affidavit) is defective, the court still has the option of granting the affected party the option to proceed to prove the claims in the petition using the other options ordinarily available to litigants in ordinary civil proceedings like the use of oral evidence, witness statements or any form of adducing evidence."

Thus, Divorce Cause No. 1 of 2022 was not defective nor incompetent hence ground 6 should fail.

In rejoinder counsel for the appellant submitted that it was not denied that the commissioning of the petition was done contrary to the requirements under the 35 Commissioner for Oaths Act. Counsel went on to submit that the petition by its nature is a pleading and ought to be verified as per the provisions of the Divorce Act. That a divorce petition is different from an election petition which is supported by an affidavit that serves as evidence. Thus, a petition in divorce cases is a pleading and the authority of **Mpanga Farouq v. Senkubuge (Supra)** and others as cited by 40

the respondent all support the assertion that a pleading with an offending verification is defective.


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#### Grounds 1 and 7: 10

1: The learned Chief Magistrate erred in law and fact when she entertained a file transferred to her by the Trial Magistrate Grade one for lack of jurisdiction.

7: The learned Chief Magistrate erred in law and fact when she held that the pecuniary jurisdiction was not necessary in divorce matters.

Counsel for the appellant stated that the petition was first filed before a Grade One 15 and later an application to challenge the jurisdiction of the Grade One was filed which led to the transfer of the file to the Chief Magistrate who is believed by the appellant's counsel not to have had jurisdiction to hear the matter.

It was counsel's submission that the respondent stated that they had a matrimonial home in Butambala. Since the cause of action arose in Butambala Bulo, the matter 20 should have been instituted in Bulo where there is a court of the same grade in the local limits. He also submitted that the court has to be cognizant of the pecuniary jurisdiction in the matter it was entertaining following section 207 of the Magistrate Act in order to ascertain the jurisdiction.

- In reply counsel for the respondent submitted that ground 7 was false because the 25 Trial Chief Magistrate never stated that pecuniary jurisdiction was not necessary but rather she stated that pecuniary jurisdiction does not arise because no property was alluded to in the petition. - In regard to ground 1 counsel submitted that the Mpigi Chief Magistrate takes over three magisterial areas to wit; Mpigi, Butambala/Gombe and Gomba and the 30 marriage in the instant case was solemnized from Kitagobwa Bulo Butambala District. That the Chief Magistrate had territorial jurisdiction to entertain the matter and that the issue of allocation of cases is an administrative one which the petitioner had no say in. - Counsel for the appellant in rejoinder submitted that what the respondent did by 35 filing the mater in Mpigi amounts to forum shopping which is a very bad habit. That the Magistrate Grade one out rightly found that she could not entertain the matter but the Chief Magistrate closed her eyes and determined the matter well aware that there is a Chief Magistrate's Court in Butambala where the cause of action arose. $40$

#### Grounds $2$ and $3$ : 10

2. The learned Chief Magistrate erred in law and fact when she applied the Divorce Act in Mohammedan marriage proceedings.

3. The learned Chief Magistrate erred in law and fact when she concluded that there was a valid marriage and desertion before hearing evidence in Divorce Cause No.001 of 2022.

Counsel for the appellant relied on the cases of Sumaya Nabawanuka v. Med Makumbi, Divorce Cause No.39 of 2011 and Ayiko Mawa Solomo v. Lekuru Annet Ayiko, Divorce Cause No. 001 of 2015, where the learned Justices clearly stated that courts have jurisdiction to dissolve an Islamic marriage but the same had to

be done following the Mohammedan laws. 20

> Counsel further submitted that the respondent has never been married to the appellant but rather cohabited with two issues.

> In response counsel for the respondent submitted that according to **Section 18** of the Marriage and Divorce of Mohammedan Act, cap. 252 and the case of Ayiko Mawa Solomon v. Lekuru Annet Ayiko, (Supra), it was held that:

"According to Section 2 of the Marriage and Divorce of Mohammedan Act, relief cannot be sought under the Divorce Act...however, the High *Court may grant relief under the Mohammedan law."*

That the trial Magistrate in the instant case granted relief within the confines of 30 the Mohammedan Law.

In regard to ground 3, counsel submitted that the respondent provided a marriage certificate which the appellant failed to rebut in regard to its authenticity.

Counsel for the appellant submitted in rejoinder that the appellant never appended her signature or any mark on the said certificate of marriage. Thus, the trial Magistrate erred in finding that there was a valid marriage.

Ground 4: The learned Chief Magistrate erred in law and fact when she held that Divorce Cause No.001 of 2022 was not time barred while applying the Divorce Act not the Mohammedan Act and the customs of the Mohammedan sect.

Counsel for the appellant defined marriage as a solemn and sacred contract between the bride and the groom with strong covenants with set rules that 40 determine the existence of such a contract. Such as mutual consent of the bride

and groom, Muslim legal guardian for the bride, two adult sane Muslim witnesses, 10 marriage gifts to the bride to be paid by the groom, announcing the marriage in public, marriage contract and documents to be registered at the mosque and local government, failure of which there is no marriage.

Counsel while relying on section 3(a) of the limitation Act and the case of Godfrey v. Godfrey 1964/3, AEC 154, submitted that the petition was time barred and the 15 ground for such a petition was desertion which transpired in 1991 so the petitioner bringing the action after 30 years was time barred.

In reply counsel for the respondent submitted that he associates himself with the finding and reasoning of the trial Chief Magistrate on page 10 on the issue of the suit being time barred. Counsel for the respondent while relying of section 1 of the 20 Divorce Act submitted that the section provides only for limitation in as far as domicile is concerned in divorce matters and not granting relief under Section 18 of the Marriage and Divorce of Mohammedans Act.

It was submitted in rejoinder for the appellant that it is trite that in Islamic faith an Islamic marriage has been described as; a marriage contract...as a civil instrument 25 rests on the same footing as other contracts. The parties retain their personal rights against each other as well as against strangers. (See: Mohammedan Law, 6th Edition by sued Ameer Ali, following Fata Wan Akungirir, Vol. II P. 209 and Radd UL-Muhtar Vil. II O. 429). That once the contract does not exist then there is no marriage. 30

Ground 5: The learned Chief Magistrate erred in law and fact when she exercised her supervisory powers wrongly by making a decision in Misc. Application No.0024 of 2022 which matter was heard by the Magistrate Grade One.

Counsel for the appellant did not submit on this ground. I am left in confusion as to whether it was an oversight or it was abandoned. 35

Counsel for the respondent however, on the other had submitted that under Section 3 of the Divorce Act, all parties proceeding under this Act, jurisdiction may be exercised by a court which presides a Magistrate Grade one of a Chief Magistrate. Thus, a Chief Magistrate exercised the judicial powers conferred to her under the law appropriately.

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### Ground 8: The learned Chief Magistrate erred in law and fact when she granted 10 costs in Misc. Application No.0024 of 2023 to the respondent.

Counsel for the appellant submitted that the trial magistrate found the respondent a successful party and hence entitled to costs yet the appellant had filed this application to challenge the jurisdiction of the petition which means she was right

in her contention before court hence the award of costs was not exercised 15 judiciously.

In reply counsel for the respondent made reference to page 3 of the ruling that it was counsel for the appellant who informed the trial court that Miscellaneous Application no.24 of 2022 was filed and pending fixing a date which application

intended to dispose of the main suit. He added that the successful party being the 20 respondent was entitled to costs in the application.

He further cited the case of Departed Asians Property Custodian Board v. Jaffer **Brothers (1999) 1 E. A 12r** where it was held that; it is trite law that costs follow the event and a successful party is entitled to costs unless for good reason court can decide otherwise.

$25$

Counsel prayed that the appeal be dismissed with costs.

## Analysis of court:

### Duty of the court.

The duty of the first appellate court is to re-appraise evidence that is before it to come to its own decisions on issues of fact as well as of law making due allowance 30 to the fact that it has neither seen nor heard the witnesses in the lower court. **(See:** Fr. Narcensio Begumisa & Others v. Eric Tibebaga. SCCA No.17/2002; Banco Arabe Espaniol Bank of Uganda SCCA No.008/1998).

## Ground 6:

- The appellant in his submissions chose to bring in other issues such as the 35 respondent having been an illiterate and blind for determination in regard to the jurat that were not part of this ground and never sought leave of court to discuss the same or brought them as preliminary objections. I accordingly disregard those issues and restrict myself to the commissioning as raised under this ground. - In the instant case the advocate that commissioned the verification in the petition 40 worked in the same law firm that represented the respondent. That is to say that Mr. Bara Shyaka an advocate and named commissioner for oaths worked in the $10$ firm that represented the petitioner in Divorce Cause No. 001 of 2022 which rendered the petition incompetent.

Section 4(1) of the Commissioner for Oaths (Advocates) Act provides that;

"A commissioner for oaths may, by virtue of his or her commission, in any part of Uganda, administer any oath or take any affidavit for the purpose of any court of matter in Uganda, including matters ecclesiastical, matters relating to the registration of any instrument, whether under an Act or otherwise, and take any bail or recognizance in or for the purpose of any civil proceeding in the High Court or any Magistrate's court; except that a commissioner for oaths shall not exercise any of the powers given by this section in any proceeding or matter in which he or she is the advocate for any of the parties to the proceeding or concerned in the matter or clerk to any such advocate or in which he or she is interested."

In the case of **Mpanga Faroug v. Senkubuge (Supra)** the Kenyan case of **Kenya** Federation of Labour & Another v. Attorney General & 2 Others, Industrial Court 25 of Kenya at Nairobi, Case No. 735 of 2012, was quoted with approval where it was held that:

> "The short answer to that is that it would be against the provisions of the Oaths and Statutory Declarations Act. A lawyer cannot commission a document drawn by his/her firm. Indeed the further affidavit by the claimants was defective in form as the jurat was not in conformity with the Oaths and Statutory Declaration Act."

Also the case of James Francis Kariuki & Another v. United Insurance Co. Ltd, Civil **Appeal No. 1450 of 2000**, where it was held that;

"That the verifying affidavit sworn by the plaintiffs is incurably defective as the Commissioner for Oaths while exercising the powers given, offended the mandatory proviso of Section 4 (1) of the Oaths and Statutory Declarations Act...

It will be clear from the above that Mr. Njenga Mwaura, being an Advocate in the firm that is acting for the plaintiff should not have allowed the verifying affidavit to be sworn before him as in any event, is an interested party."

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$20$

Counsel for the respondent contended that the petition is not defective as there are other options that court can use to obtain evidence. I disagree with this submission. 10 A divorce petition is different from an election petition as per the authorities cited, it has no supporting affidavit that can be disregarded by court. A divorce petition is a stand-alone pleading in that if the verification is dealt away with, the whole document goes with it. As is the case in the instant matter the petition violated the provisions of Section 4(1) of the Commissioner for Oaths (Advocates) Act and 15 cannot be cured by Article 126 (2) (e) of the Constitution of the Republic of Uganda, 1995 because it is not a mere technicality but an illegality that touches

the root of the petition since it confirms the contents there in. The Petition in this case is therefore, incurably defective. Thus, the learned Chief Magistrate erred in law and fact when she failed to consider that the petition was defective for being 20 commissioned by the lawyers prosecuting the same case.

This ground of appeal hereby succeeds.

## Grounds $1, 5, \& 7$ :

The main contention under these grounds is the issue of territorial and pecuniary jurisdiction. The appellant contended that the matter should have been entertained 25 by the Grade one in Butambala or the Chief Magistrate in the same magisterial area and not from Mpigi.

The petition in the instant case was filed in Mpigi and allocated to a Magistrate Grade one who found that she had no jurisdiction and forwarded the same to the 30 Chief Magistrate of Mpigi at Mpigi for further Management.

In the case of Owners of Motor Vessel "Lillian S" v. Caltex Oil (Kenya) Ltd (1989) KLR 1, it was held that;

"I think it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, court has no power to make one more step. Where court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law downs tools in respect of a matter before it the moment it holds the opinion that it is without jurisdiction."

I would like to first fault the Magistrate Grade one for forwarding a file she had no jurisdiction to entertain to her superior for further management. The proper

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procedure is that she/he is supposed to dismiss the same upon discovering that 10 she/he had no jurisdiction to hear the matter and the concerned party can then file it in the proper court.

In the case of David Kabungu v. Zikarenge, High Court Misc. App. No. 36 of 1995 [1995] 3 KALR 48, it was held that;

"A subordinate court has no jurisdiction to transfer a suit. On the other hand a subordinate court to which a suit is purportedly transferred by another subordinate court, if he hears the case and decides it, takes the case without jurisdiction as the case was not filed in that court nor transferred to it by the order of the High Court."

Also, in the case of Kigenyi v. Musiramo (1968) E. A, it was held that an order for 20 transfer of a suit cannot be made unless the suit had in the first instance been brought to a court which has jurisdiction to try it.

In regard to the Chief Magistrate, entertaining the matter, I find no fault in this as the same Chief Magistrate was caretaking Butambala at the time which falls under the magisterial area of Mpigi therefore entertaining the petition from Mpigi did

25 not occasion a miscarriage of justice to either of the parties.

It is not in dispute that the Chief Magistrate has supervisory powers under **Section** 221 of the Magistrates Courts Act which is to supervise all Magistrates Courts in her/his Magisterial area. This includes calling for and examining records of any proceedings before the lower courts. In the instant case the chief Magistrate, 30 properly exercised her supervisory powers in regard to a file that was forwarded to her by a magistrate grade one who found that she lacked territorial jurisdiction to handle the same.

As far as pecuniary jurisdiction is concerned, the same was never in issue since no properties were outlined in the petition to be distributed between the parties. I find 35 the issue of pecuniary jurisdiction does not arise in the instant case.

I accordingly find that grounds $1$ , $5$ and $7$ all fail.

## Grounds 2 & 3: $\frac{1}{2}$

Divorce is the permanent ending of a formal/legally recognized marriage.

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$10$ The Marriage and Divorce of Mohammedans Act Cap.252 allows persons who are married and profess the Mohammedan religion to divorce in accordance with their norms as provided under **Section 5** of the said Act.

Divorce in Islam is therefore a question of choice, one can decide to go to court or follow custom. A party intending to divorce should therefore choose with mathematical precision the form of divorce to take. After choosing the form, the intending divorcee should fulfill the norms pertaining the form taken.

The Marriage and Divorce of Mohammedan Act, under **section 18**, provides that:

"Nothing in the Divorce Act shall authorize the grant of any relief under that Act where the marriage of the parties has been declared valid under this Act, but nothing in this section shall prevent any competent court from granting relief under Mohammedan law; and the high court and any court to which jurisdiction is specifically given by the minister by statutory *instrument shall have jurisdiction for granting that relief.*"

I would like to associate myself with the finding in the case of Ayiko Mawa Solomon v. Lekuru Annet Ayiko, (Supra), as cited by both parties, where it was 25 held that:

> "According to Section 2 of the Marriage and Divorce of Mohammedan Act, relief cannot be sought under the Divorce Act...however, the High *Court may grant relief under the Mohammedan law."*

Thus, the parties can apply for divorce reliefs under the Mohammedan law from a 30 competent court or the qadhi court and if they are not operationalized then the High Court and any other court with jurisdiction but such Court has to dissolve the same while applying the Mohammedan laws.

In harmonizing the Constitutional position on (Qadhi) Sharia courts, His Lordship Hon. Justice B. Kainamura in the case of **Sumayiyah Nabawanuka v.** 35 **Meddie Makumbi, Divorce Cause No.39 of 2011** confirmed the legality of Qadhi courts while relying on **Article 274** of the Constitution which empowers courts to construe existing laws in conformity with the constitution so as to give effect to the provisions of the Constitution. The same reasoning was applied by Hon. Justice Moses Mukiibi in **Khadra Mohamed Warsame v. Said Ahmed Mohamed.** 40

Although the Qadhi courts have not specifically been provided for in an Act of Parliament, they are considered to be functional since they are provided for both in the Constitution and the Mohammedan marriage law. In the case of **Sumava**

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Nabawanuka versus Muhamed Makumbi (Supra), the issue was whether the $10$ Sharia courts had competent jurisdiction to hear matters in matrimonial proceedings under the Marriage and Divorce of Mohammedan Act. Court held that although **Article 129(1) (d)** of the constitution had not been operationalized by an Act of parliament, the Qadhi courts were by virtue of Article 274 of the Constitution competent courts to handle divorce matters under the Mohammedan 15

law.

The court further held that the high court has jurisdiction to handle Mohammedan divorces and the law applicable must be Mohammedan laws and not as provided in the Divorce Act.

**Article 274** of the Constitution of the Republic of Uganda provides: 20

> "The first President elected under this Constitution may, within twelve months after assuming office as President, by statutory instrument, make such provision as may appear necessary for repealing, modifying, adding to or adapting any law for bringing it into conformity with this Constitution or otherwise for giving effect to this Constitution."

Sections 2 and 18 of the Marriage and Divorce of Mohammadan Act read together with the Marriage and Divorce of Mohammedan (Jurisdiction) Regulations (Statutory Instrument 252-3, laws of Uganda) indicates that the Qadhi courts were already in existence and hence had jurisdiction to try divorce matters under Mohammedan marriages.

In the instant case it is not in dispute that the Chief Magistrate applied the Divorce Act while handling divorce under Mohammedan proceedings. Counsel for the respondent tried to quantify this by stating that even though these reliefs under the Divorce Act were granted by court, they were done with knowledge and in the confines of the Mohammedan Law which made them not fatal.

I disagree with this submission, the law is very clear in this regard as cited above. The trial Chief Magistrate therefore, erroneously applied the Divorce Act in the instant case, the reliefs granted ought to have been those provided for under the Mohammedan law. Even, though Magistrates have jurisdiction to handle matters

involving Marriage and Divorce of persons professing the Mohammedan, the law 40 applicable is the Mohammedan law and not the Divorce Act.

$\#$

Ground 2 of appeal hereby succeeds.

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In regard to ground 3, the appellant contends that there was no valid marriage 10 and the trial Magistrate should have found so.

In the instant case, the application as filed by the appellant was challenging the competence of Divorce Cause No.001 of 2022. Thus, there was need to ascertain whether there was a valid marriage before delving into the merits of the petition.

I have carefully perused the court record and there is a marriage certificate thereon 15 to prove the existence of the marriage between the appellant and the respondent. It is true this was never challenged by the appellant during trial and was also exhibited as Pexhb1 with no objection from the appellant. The appellant cannot now turn around on appeal to challenge the authenticity of the said Marriage Certificate. 20

I hereby conclude that there was an existing marriage. I therefore find no merit in ground 3 of the appeal. This ground of appeal fails.

## Ground 4:

The appellant contended that the respondent had no cause of action and that the petition was barred by limitation while relying on the case of Godfrey v. Godfrey,

25 (Supra).

> I would like to agree with the submissions of the respondent under this ground, that there is no limitation provided for under the law when it comes to seeking for relief in divorce proceedings under Section 18 of the Marriage and Divorce of Mohammedans Act.

Limitation is only applicable in issues of domicile at the time the petition is filed and this goes only to the applicability of the Divorce Act in that regard.

The appellant sought to apply **Section 3(a)** of the Limitation Act in regard to a six year limitation for matters in contract which in my opinion is not applicable to divorce proceedings much as marriages have some elements of contract, they are

35 not contracts per se as they lack elements of consideration and are not governed by laws of contract.

A marriage does not get dissolved automatically or get invalidated after the expiry of six years if no legal action is taken, for as long as there is a valid marriage, there will be need for its dissolution if the parties involved are at a point of irreconcilable differences or have grounds for divorce.

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In divorce matters there are grounds that need to be proved before a marriage can 10 be said to be dissolved. Therefore, a marriage can only be dissolved through a court order upon hearing of the petition and evidence adduced there under or following the customs under which it was contracted and that is the only way relief in divorce matters can be obtained. And divorce proceedings are governed by different laws and not the Limitation Act. Thus, divorce proceedings are not barred 15 limitation.

This ground of appeal hereby fails.

## Ground 8:

Its trite law that costs follow the event and the successful party is entitled to costs. **Section 27** of the Civil Procedure Act provides; 20

> "Provided that the costs of any action, cause or other matter shall follow the event unless the court or the judge shall for good reason otherwise order."

In the case of Nabanja v. Nabukalu (Taxation Appeal No. 4 of 2018) [2018] UGHCFD 27 (31 October 2018), it was stated that; costs of and incidental to all 25 suits are in the discretion of the court or judge with full power to determine by whom and out of what property and to what extent those costs are to be paid.

The appellate court will only interfere with an award of costs by the Trial court if such costs are so low or so high that they amount to an injustice to one of the parties.

The award of costs to the winning party by the trial Magistrate and in the exercise of his/her discretion cannot therefore be said to have been an error on the part of the trial Magistrate.

In the instant case the Chief Magistrate properly exercised her discretion as she even had jurisdiction to handle the matter. 35

I find that there was no miscarriage of justice occasioned to the appellant when costs were awarded by the trial chief Magistrate in favour of the respondent in a matter she had jurisdiction to handle.

This ground of Appeal hereby fails.

In a nut shell the appeal succeeds on grounds 2, and 6 and fails on grounds 1, 3, 40 $4, 5, 7$ and $8$ .

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Having found that there was a valid subsisting marriage, the parties are free to file $10$ a fresh petition before a competent court with proper jurisdiction, to dissolve the marriage if they so wish. This can either be at the Magistrates court at Butambala or the Qhadi court as both are competent in handling the matter.

The lower court decision is hereby set aside in as far as grounds 2 and 6 are concerned. 15

Costs in the lower court are maintained in favour of the respondent and on appeal $2/3$ of the taxed bill are awarded in favour of the respondent.

I so order.

$20$

Right of appeal explained.

OYUKO ANTHONY OJOK **JUDGE** 26/06/2023