Nemezio Aiiya v Sabina Onziya Aiiya (Divorce Cause 8 of 1973) [1974] UGHC 2 (6 September 1974)

Full Case Text

IN THE HIGH COURT OF UGANDA AT KAMPALA DIVORCE JURISDICTION CAUSE NO.8 OF 1973. $\mathbf{1}$

NEMEZIO AIIYA............................... **VERSUS**

SABINA ONZIYA AIIYA...............................

Before: The Hon. Mr. Ag. Justice J. M. N. Kakooza

## JUDGMENT

This is a Petition for dissolution of a marriage contracted under Lugbara customary Law in January, 1967.

The petition raises quite a number of interesting issues some of which are connected with the jurisdiction and power of the High Court regarding Customary Law Causes. I will deal with each issue as it comes up in the course of my judgment.

In her reply, the Respondent, in paragraph 1 thereof raised a preliminary issue, but She did not pursue it in Court at the hearing, that,

"I................... the Respondent would state that the marriage was solemnised under the Lugbara ' customs and traditions. At the hearing of the Petition, the Respondent will contend that the Divorce Act does not apply and the said marriage cannot therefore be dissolved under the said Act."

The Respondent was not represented by Counsel, Counsel for the Petitioner, however, submitted that the Court had Power to deal with the Petition under Sec.8(1) of the Judicature Act (No.11 of 1967). He further said that A the Customary Marriage (Registration) Decree 1973 (No.16

In the Petition, there is no mention of or reference to the Divorce Act at all. When the Respondent contended in the reply "that marriage was solemnised in Lugbara custom. Lugbara customs and traditions... the Divorce Act does not apply and that the said marriage cannot therefore be dissolved under the said Act," she meant in effect, it seems to me, that the High Court has no Jurisdiction to entertain the Petition since it was based on Customary Law and the High Court, in her view could not apply this Court, Article 83(1) of the Constitution says,

$\mathcal{N}$ $\mathcal{N}$ $\mathcal{N}$ 83(1) There shall be a High Court for Uganda

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Looking at the Judicature Act (No.11 of 1967) itself it provides as follows:-

- "3.(1) Pursuant to the provisions of clause $(2)$ of Article 83 of the Constitution, the High Court shall be a superior Court of record and shall have full jurisdiction, Civil and Criminal, over all persons and over all causes and matters in Uganda. - (2) Subject to the provisions of the Constitution and of the Act, the Jurisdiction of the High Court shall be exercised, - (a) In conformity with the written $\mathop{\rm Law}\limits$ including any law inforce immediately before the commencement of this Act;

(b) Subject to any written law and in so far as the same does not extend or apply, in conformity with,

$(i)$ . . . . . . . . . . . . . . .

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(2) any established and current customs or usage,"

The suit before the Court is a matrimonial cause and Section 4 of the Judicature Act, Provides,

"4. The High Court shall have jurisdiction to hear and determine all matrimonial causes."

Counsel for the Petitioner has himself defended the jurisdiction of the High Court on the basis of Provisions of sec. $8(1)$ . This provides that,

"8.(1) Nothing in this Act shall deprive the High Court of the right to observe or enforce the observance of, or shall deprive any person of the benefit of, any existing custom which is not repugnant to natural justice, equity and good conscience and not incompatible either directly or by necessary implication with any written law."

From the above provisions of the Constitution and Judicature Act, it is clear that the High Court has unlimited Jurisdiction to entertain any suit based on the Customary Law. There remains the question of whether in dealing with a matrimonial cause arising out of a customary marriage as defined for example, in sect. 38 of The Customary Marriage (Registration) Decree, as $\overline{a}$

$\mathcal{L}$

marriage celebrated according to the rites of an Africa. community and one of the parties to which is a member of that community," the High Court can apply the provisions of the Divorce Act.

Approximate

$\mathcal{L} = \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L} \mathcal{L}$

In connection with this, the Judicature Act, sect. 17

"17.(1) The Jurisdiction vested in the High Court by the Constitution, this Act or by any other enactment shall be exercised in accordance with the practice and procedure provided by this Act or any other enactment or by such rules and Orders of the Court as may be made pursuant to this or any other enactment.

$(2)$ Where in any case no procedure is laid down for the High Court for any written law or by practice the court may, in its discretion adopt a procedure justifiable by the circumstance of the case."

Then the Divorce Act, (Cap. 215) itself says,

"4.(1) Where all the parties to a proceeding under this Act are Africans or where a Petition for damages only is lodged in accordance with the provisions of section 22 of this Act, jurisdiction may be exercised by a surbodinate Court of the first class or by a Court over which presides a Chief magistrate or a magistrate grade 1.

$(2)$ In all other cases jurisdiction shall be exercised by the High Court only. Such Jurisdiction shall, subject to the provisions of this Act, be exercised in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England."

Finally, on this preliminary issues, it may also be noted that whereas the Customary Marriage (Registration) Decree, 1973, provides for the declaration of a Customary Marriage and the retirements for a valid Customary marriage, it does not at all say anything about the procedure or the law of dissolving such a marriage. It seems to me that this omission requires the attention of

$\overline{3}$

the law-making authorities.

For the above reasons, I allowed the Petition.

The Petitioner testified that he was aged 42 years and was a businessman in West Nile. He said that he had known the Respondent since She was a girl. On January 29, 1967, he approached her Father for a hand in marriage. Later he took away the dowry to him which was accepted, saying that since $\hbox{he (Petitioner )}$ and the respondent had fallen in Love, he should pay the dowry and have her. He said that he took her before finishing the payment of the dowry but that eventually, he paid it all.

He gave : 5 heads of Cattle, 3 goats, 1 Kanzu, 1 Kaunda Suit, 1Gomesi, 1 frock, 2 bed-sheets and Cash of Shs.700/=. He said that he paid Shs.100/= to the father in Law as a penalty for having taken the daughter (Respondent) before all dowry had been paid. He also paid shs.100/= for the same reason to the mother in law. After paying these sums as Penalties, the father- in-law allowed him to keep the Respondent.

$\overline{4}$

From January, to april, 2, 1972, the petitioner and the respondent lived happily together and two children were born: a boy, Bosco Atiku and a girl, Night Draru.

He did not know what caused their separation in April 1972, the Respondent just left him, like a thief - she took all the household property and the house remained empty. She went to her father's home where she was till at the hearing of this suit.

After leaving him, she became pregnant and he realised this in August 1972. Later he knew that she delivered and saw the child. He knew the Co-respondent to be one Ambrosio Buzele hereinafter to be referred to as Buzele. He knew him from the Company he was keeping with the Respondent, going together to funerals, football matches and other social gathering; even at the time of hearing this suit, they were still together and he had bought her a house in Arua. He was convinced that it was Buzele who was the Co- Respondent because of that house in Arua and also because he had paid a bull to her father for getting a child in the Respondent.

The petitioner and Buzele knew each other very well; in fact when the parties were still in cohabitation, he

$\sigma = \eta_{\rm eff}^{\rm eff}$

said, Buzele visited him and the Respondent cooked him a meal. Buzele went to the petitioner's house as his friend.

After the Respondent had left the petitioner, he visited her at her father's home during day time, to find out from her why she had gone away. He was sent away by her brother. She was herself not at home then, She started working. He never went to that home again.

The petitioner said that the Respondent was carrying a second pregnancy. He had asked her who had made her pregnant and she said that as he had not collected his dowry back, she would not tell him.

He had never forgiven her, he could not. He had no sexual intercourse with her since she left him and his two children were with his father- in- law, they had refused him to take them. The petitioner then said that got another woman as he was suffering after his he had wife had left him. He denied having entered into any collusion with the Respondent; he had only come to cry for justice before the Court. Since she had got another man, he had no interest in her.

$\overline{5}$

He wanted Buzele to pay him damages; he was his friend; he had gone to his house as such but he had enticed away his Wife. and impregnated

Under cross examination, he said that the Respondent had his house by herself. On April 2, 1972, very early left in the morning, before sunrise, she took away all his was in his shop, away from the home where property. He the Respondent lived.

He had never called her people to go and settle a dispute between them.

payradous? He emphasised that he knew from his own observation that Buzele was the one who had committed adultery with her. He denied having told her (the Respondent) that he had no $\sqrt{ }$ interest in her and that if she did not leave him, he would make her crawl in suffering. He admitted that he had another Wife called Kerezina when the Respondent went to live with him. he denied having given her trouble while they lived together, nor having beaten her on her eyes as she alleged. He had never been taken before a Sub-County- Chief by her because of a marital conflict. He had never beaten her after the delivery of their

daughter, Night, as she claimed. He said that if he had beaten her, let him be beaten in Court. He said that he had called her people to complain about her behaviour. He had never told the elders that if they insisted on his living with her. He said he was not at his house where She lived on the Easter Eve of 1972 and so he never threatened her as she said.

Under re- examination, he said that according to the customs of his tribe, if a man had the resources, he could have a number of wives. He had one wife when the respondent went to him. It was not, however, the custom of a married woman to have more than one man. He said that on divorce a man was entitled to collect back the dowry he had given but he had not collected his back, In reply to the Court, he said that he had never brought action in his area for dissolution of the marriage. But he had sued his father -in- law for the return of his wife.

PW2, testified that he knew the Makalina abina petitioner, the witness was the go-between. The witness said that the petitioner married in 1967 and gave as dowry the following; 5 head of cattle, 3 goats, Shs.700/=, 1 gomesi, 2 bed-sheets, 1 kaunda suit. He said it was he who delivered the above dowry to the parents of the Respondent. He gave the value of the various items as follows: a bull shs.100/= and a cow shs $200/$ =at the timehe took 1 bull and 4 Cows; each goat shs.30/=; the gomesi shs.54/40; the pair of bed-sheets shs.5/=.

He said that he knew that by the custom dowry would only be refunded when a marriage had been dissolved.

Under cross examination, he said that he was sure that it head of cattle and 2 goats given to the was $5$ respondent's parents and 1 goat to her women relatives. He said that he was sure that he took shs. $700/$ = as part of the dowry; shs.300/= first and later after the respondent had come to her husband to live, shs.400/ $=$ .

He did not know how and why she had left her husband. What he knew was that the petitioner asked him to go for the respondent's parents to go and settle the matter between them. The respondent's Father told the witness to tell the petitioner to ask his elders to deal with the matter. HE said that the petitioner told him that the respondent used to go out to bars and drink and she did

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not do her domestic work. The witness said that he remembered the Petitioner saying before the elders that he no longer loved the respondent but, but the witness said, the petitioner was angry. The elders said that he should not send her away. The witness said that the petitioner had never told him about the respondent taking all his property with her.

Respondent testified that she was married to the The petitioner under Lugbara customary law before he had been paid all the dowry. She said that she left her father's home on being enticed by the petitioner that he was going to buy her a dress. She stayed with him for one year and got a baby boy. For that one year, they lived together happily and she used to help him in his shop. When, in about 1970, she got pregnant with the second child, misunderstandings started. He began accusing her of speaking so many languages and that the way she welcomed people in the shop tended to show that she was in love with other men. She took all that lightly, knowing that generally men were jealous when they saw their wives talk to other men.

Immediately after the birth of the second child, he began to beat her and stopped giving her support. She started look for means of helping herself and the children. she brewed beer; sometimes the went and spoilt it saying that since he had given her enough money, why should she brew beer. She at first did not mind much but then, she said, he transferred her and one of the other two co-wives to his village home. He transferred her because, he said, she was spoiling his other two wives. She went with one of the wives because the other two wives did not love each other. The petitioner, she said, was still not satisfied. He continued quarrelling with her, saying that if she was educated, her education was no good for him but for her parents. She replied that she was his wife and she asked him whether she got benefit from his education. He said that if she thought that she was educated, he would teach her a lesson. He got a stick and beat her in the presence of the two wives. She received injuries and reported the matter to the sub-county chief who gave her a letter to go for treatment. She was given four injections at the dispensary. - (Admission of Alwans) Jellang Care

She did not want to complain officially, for fear that he might stop maintaining her. He continued keeping her without much of the necessaries of life; he did not even go to sleep with her in the village house where she was

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staying.

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One morning, she was sweeping the compound when he went and asked her why she was doing so. In march 1972, he told her that he had already told her relatives to go to him and he would tell them that he no longer loved her. Then the day after this, she saw petitioner's elders; her glders did not come. The go-between, PW2, was among the Selders. The petitioner informed them that he no longer loved her and that he wanted the dowry back. The elders asked him why he no longer loved her. The petitioner informed them that he no longer loved her and that he wanted his dowry back. The elders asked him why he no longer loved her. He said (a) when she went to her sisters daughter's funeral, she went for men. She said this was wrong because the Petitioner present when her sister came to tell her about the daughter's death; (b) when she went for the funeral of Mr. Isodoro in Arua, again it was for men.

This was also wrong, This was also wrong, she said, for she went with her mother; (c) that she did not fetch water. Again it was wrong, for she used to go with her co- wives to fetch water.

The elders said that they were not satisfied with these reasons and that they were tired of his reasons because they were the same reasons for the dismissal of two wives before.

The elders ruled that since the respondent had produced two children for him she should stay till he removed her by force. She stayed for one month but because the situation was intolerable, she left him.

On One Saturday night, about 10.00p.m, he went to her house and found her washing her son's clothes. He told her that where she was washing did not belong to her and asked her why she was staying there since the did not love her. If she did not go away, he would kill her or she would receive such injuries as would make her crawl. Since he had beaten her several times previously, she got afraid and she decided the next day, a Sunday, to go away to her father's home with her children. She took with her 5 dresses. She took no Utensils.

After she had stayed for one week there, the Muluka Chief of her village went to her father's home and said that the sub-county chief wanted her and her father. They The petitioner said that he only wanted his went. children back. He took the clothes away saying that he would sell them for food. She stayed with her father. She now working as Assistant Secretary/Manager with was Tobacco Society about one mile away from her father's home. Her husband's (Petitioner's) home was about three miles from her father's.

The Petitioner, she said, had not given any respect to her father; had not gone for a reconciliation. The petitioner began creating antagonism between the respondent and other people, saying that she was stupid though educated. He went to the extent of writing to the Office- in- Charge, Arua Police Station that she was still his wife and had therefore no right to be employed without his permission.

The respondent said that it was true that she got a child from another man and she had never told the petitioner its name. It was about November, 1972 when she conceived but it was not Puzzle who had made her pregnant.

After the respondent had stayed with her father for some time, her father was taken to Court by the Petitioner. The Court's decision was that it was the Petitioner who had sent the Respondent away and that he should he should go and collect his dowry back. But two elders advised the Court that since she had lived with him and produced children, all the dowry could not be returned but only two head of cattle, two goats and shs.200/=. Her father asked the Petitioner to go for the above items of dowry but he refused to step into his house.

she said she was educated up to Under cross-examination, Junior II standard and had a Certificate in Domestic Science.

The petitioner had been asked to pay 10 head of cattle and 8 goats as dowry.

He only paid five and two respectively. The Respondent said she went to the Petitioner's house because she loved him then and he had enticed her. She said that it was permissible under the customs for a man to take a Woman to his House before all dowry had been paid and he would then finish the remainder in instalments. The parties were regarded as husband and wife before all the dowry had been paid but the marriage could not be regarded as valid before all the dowry had been paid.

The respondent said that she was not denying that some dowry had been paid but what she was saying was that not all of it had been paid. She admitted that she got a child outside marriage because she was sexually frustrated by her husband. She gave the child to her father because it was fatherless in that she did not know its Father. She denied that she was pregnant at the time of the hearing of the petition.

The petitioner was the one who had said that he would not stay with a woman who knew English; but she had wanted to

$\mathbb{R}^2$

$\mathcal{Q}$ bring him up.

In reply to the Court, she said that Buzele was not her boyfriend; she denied having kept company with him or having slept with him.

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Cammello Wania, father of the respondent and hereinafter referred to as Wania, testified that he was aged 62 years. He said that the Petitioner had gone to him to ask for the hand of his daughter. He gave as dowry to him: 5 head of cattle, 3 goats, 1Kanzu and shs.200 and to the sisters of the respondent, shs.100/=. He said that he had wanted to all together 10 head of cattle, 10 goats and shs.400/=. He said that the Petitioner had "stolen away" his daughter before completing the dowry.. He denied having received anything else apart from the above from the petitioner. The petitioner had never complained to him why the respondent had left his house. He did not know the father of the respondent's child. He had received anything as a fine from anybody for getting that child in her. She was staying with him, and he knew that she was going to the town-Arua to see her sister there but he did not know that she had a house there.

He said that the Petitioner had accused him in Arua that he had taken the respondent away from him but he never It was decided that 3 head of cattle $-$ One did that. being for the fine for having taken his daughter away before all the dowry was paid and two and 1 goat because the petitioner had got children in the respondent should stay with him (witness). The Petitioner was to receive back 2 head of cattle, 2 goats and shs.200/=. He said that the petitioner wanted the respondent back but the magistrate ruled that she should stay with the witness. She had gone to his house to report the injuries she had received from the petitioner and she did not go back to him. He at one time said that a fine had to be paid by the petitioner for beating the respondent but he did not give any.

Under cross-examination, he said that there was a $q_0$ between, PW2, who delivered the dowry. He was his grandson. He emphasised that the respondent had been taken away before all the dowry had been paid. He went to the petitioner for a fine but he gave him none. The fine would normally be a bull. He said that he never gave the respondent to the petitioner, she went away without his consent.

Normally, he said, if a husband sends a wife away, dowry

is not returned. But if the girl is the guilty spouse, the dowry is returned. In this case, he had called the Petitioner to go for the dowry: he refused. It was the Court which had decided that the witness should return some of the dowry as indicated above. He had not appealed against that decision.

In his submissions, Mr. Mugenyi for the Petitioner, said that it was admitted by the respondent in her reply that a Customary marriage had been contracted between her and the petitioner although she suggested that it was a marriage on instalment basis. As for the ground for Divorce, he said that adultery had been proved and the respondent herself had admitted having committed it.

Counsel said that as the CO- Respondent, Buzele, had not been served, the claim for damages against him was dropped. The Petitioner prayed for costs of the Suit.

As for the Custody of the two Children of the marriage, Counsel submitted that the Respondent had committed a serious matrimonial Offence and as the guilty Spouse, she should not have the Custody of the Children.

Counsel prayed for the return of the dowry of the same kind paid or Money's worth as the custom was in the community of the Lugbara.

The Respondent said in the reply that she conceded to the Petition being granted as the petitioner would otherwise kill her. She pleaded that it was the petitioner who had induced her to commit the adultery. If he had not dismissed her from his house, she would not have done so. HE had given her no maintenance for herself and the Children since she left him.

As for the Custody of the Children of the marriage, she said that it had already been decided in the lower Court that they should stay with her. She did not accept that they should go to him; he was full of dirt; the other Women with him would not like them. She was now in a position to look after them; she earned shs.250/= a month. She had no Objection to his taking them later when they would have grown up.

As for costs she said that the petitioner had made her go up and down and defamed her. He should pay all the costs. She prayed for alimony and maintenance for the Children. She said the petitioner was earning about shs.5,000/= $a$

month as a general merchant. Regarding the return of dowry, she submitted that he could not take all of it back for it was he who had sent her away; he could take back only what was granted him in the lower Court.

As a matter of fact, She said that he should not get any dowry back.

$y$ so lil Now, a number of issues arise for consideration. First a marriage between the petitioner and the respondent must be proved to have been contracted. Secondly, the will be petitioner must satisfy the Court that there is a ground, upon which the Decree nisi could be granted. Thirdly, the Court must be satisfied that there is no absolute bar to the petitioner being granted and consideration must also be taken of the discretionary bars, if any. Finally, there are the incidental issues of damages, Costs of the Suit, Custody of the children of the marriage, return of the dowry, and, alimony and maintenance for the Children.

In proceedings for dissolution of marriage, it is a well between the parties must be proved for if there is no marriage, there is no ground for action

$11$

Cmelty

There are clear precedents on this requirement in East Africa. In Abdulla bin Masood V. Rasuid bin Nasser (1916) I. Z. L. R. 519, it was held that strict proof of marriage must be adduced in a charge of adultery, but the evidence of a person who performed the marriage should be sufficient to establish the fact. The trial Judge went further and said that in Order to prove a marriage, it is not necessary that full details of the Ceremony should be given. A statement of the witness that the marriage was celebrated according to the customs of the sect to which the parties belong is enough to raise a presumption that the marriage was legally celebrated. In Elizabeth d/o Paulo V. NAkaza s/o Janja (1937) I. T. L. R 735, the petitioner sued for divorce and gave the date of the marriage in the Lutheran Church of Songa. NO further evidence of marriage was given except her statement regarding the date and $p[$ lace of marriage. She gave no evidence to substantiate her ground of adultery and desertion by the respondent as alleged but denied by the respondent although the respondent as in the present case, admitted having committed adultery but with a different Woman altogether. On appeal, it was held that the Petitioner had failed to prove that a marriage existed and also that adultery had been committed as

alleged. The decree was denied, It will be noted that this in this case, the Court was not prepared to accept the word of the petitioner alone as to the existence of a marriage. The petitioner was a Woman and the possibility jactitation of marriage existing was situation of of a But even where the Petitioner or remote. not too Plaintiff is a man, the possibility could also exist. The case of Mwagiru V. Mumbi (1967) E. A.639, is an example of this. The plaintiff sought a declaration that he was validly married under Kikuyu Custom with the Defendant. The case was dismissed. The clearest decision I could find on the requirement of proof of marriage is in Taylor V. Taylor (1914) 1 T. L. R. 737. Wilson J. said that,

"...the original marriage certificate, or an officially certified copy thereof, should always be attached top the petition at the time of filing... The factum of marriage is the first step which must be proved in all matrimonial suits and the marriage certificate is prismatic evidence though its production is not the only essential way of proving that the marriage actually took place."

As to how proof of marriage should be established where there is no marriage certificate as Taylor V. Taylor (supra) envisages, the case of Szeftel V. Szeftel (1963) is partly helpful in our present case. R.& N.267 Considering the validity of the ceremonies of marriage involving the parties, the Judge quoted the head note of the case of Spivack (1930) All E. R. 133:

" The proper principle as to proof of marriage in civil suits, where the customary evidence of valid marriage is not forthcoming or is not readily available is that set out in 19 HALSBURY'S LAWS OF ENGLAND (3rd Edn.), 813, namely: 'where there is evidence of ceremony of marriage having been gone through followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence of the contrary; when this is done, the burden of the marriage."

present suit, the principle as for the adopt, $\mathbf{T}$ enunciated above in the Spivack case.

The evidence regarding the ceremony of marriage and cohabitation that followed is provided by both parties and their witnessess. The petitioner testified, and it is not denied by the respondent not Wania that he approached Wania as custom required, expressed to him his desire to marry his daughter and he agreed saying that since they were in Love, he should pay the dowry and could then take a Wife. her as Then again both parties agree, corroborated by their witnesses that dowry was paid and that before all of it was paid, the respondent went into cohabitation with the petitioner and the respondent said that, as the custom was, they were regarded as husband and wife. In my view, payment of dowry before the man takes a woman to his house as his wife, especially where this payment is made, in part, on the very morning of the going away of the woman, as it is customary among the Baganda for example, is, in the true sense, part of the ceremony of marriage. We have therefore, a ceremony followed by cohabitation of the parties. This evidence on its own would have established a marriage having been contracted but, the element of dowry is important in this issue. In Won V. Dominiko Manano (1958) E. A 124 the Respondent had not paid the amount of dowry demanded by the bride's father and in addition the marriage was not registered. The trial magistrate decided that there was no marriage on the ground of non-registration. On appeal to the High Court, the learned Chief Justice, Sir Andley Mackisack said that,

"The court appears to have relied on a statement by the bride's father that Domminiko had not paid as a great a bride- price as he (the father) had demanded. Had the Central Native Court realised that, whatever the cupidity of the father may have thought a proper bride-price, the husband has paid as much as the law permitted and required, and had in fact paid more than that, I think that the Court must have come to a different decision."

If I am right, as I believe I am, that there was no law, national or local, regulating the amount of dowry to be paid in the Lugbara community of the parties at the time they entered into cohabitation - January 1967, then on

this issue of whether a marriage existed between them on the ground of dowry, the only point to consider is whether a union between a man and a Woman can under customary law be regarded as a valid marriage before all

the fixed amount of dowry is paid.

$\mathcal{L}$

The Customary payments made by a man or his family to a Woman's family for her hand in marriage in the various societies in Uganda and generally in other societies in Africa, have been and continue to be differently referred to as: bride- price bride wealth, Wife-purchase (Rex V. Amkeyo (1917) E. A. L. R. 14, which may be granted as obsolete), marriage consideration, marriage gifts, marriage payments, mahl, or mahari (this term, however, is restricted to payment, in a Mohammedan marriage) and dowry. (with meaning opposite to its meaning in European Countries).

There three use the term "bride There are four local Laws : price." The Budedi Bride-Price Law, Legal Notice No. 259 of 1950; The Bugisu Bride-Price Law, Legal Notice No.176 of 1960; The Sebei Bride-Price Law, Legal Notice No.176 of 1960, and the term "dowry" is used in the Teso Births, Marriages and Deaths Law, Legal Notice No.252 of 1959.

For the sake of consistency in this present case as the parties and their witnesses have used the term "dowry", $\texttt{I}$ will also use the same term. $\mathbf{D}$

First of all, in practically all African Societies, dowry was traditionally and still is but to a decreasing extent, required in the process of a man getting married, Where it was given, it was prima facie evidence of a valid marriage, thus distinguishing the union from a But although the types of casual cohabitation. commodities to be paid as dowry were customarily known and in cattle complex- societies, cattle was certainly the chief commodity, there was, as a rule, no absolute amount or number. The social or economic status of the girl's family and her own characteristics would be for example factors to determine the amount of dowry. On the whole, therefore, the girl's parents or relatives had or have the liberty to suggest any amount on which a compromise would be reached with the boy's family. Just as the girl's relatives have the "liberty" to fix any amount, even, illegally though, in those communities where local laws have set a maximum, as in the case of Sebei or Bugisu; they can waive their customary right to dowry altogether. Thus daughters are given away without dowry to a man because of Friendship between the two families, because of appreciation or being satisfied that he has looked after another wife from the same family well. Similarly, where dowry has been paid only in part, the girl's relatives may forego the balance either expressly or by acquiescence.

On the principles above, it appears to me that the fact alone that all the dowry that was fixed and agreed is not

$\langle \xi \rangle$

$h\vert\vert$ was

paid would not necessarily mean that there is no valid marriage. The intention of the parties, the understanding reached between them, and the bride is taken while there is a balance of the dowry to pay and the subsequent behaviour or understanding of the parties especially an the side of the bride's family, would have to be considered.

In the present case, the parties disagree as to what was the amount of dowry requested by Wania. Having seen the respondent herself in Court defending herself in English and believing her evidence that she was educated up to and had a Certificate in Domestic Science Junior II before the Petitioner approached her father for her hand in Marriage, I am of the view that, considering the characteristics, the dowry requested by Wania must have ben more than that said by the Petitioner to have been paid. The respondent said that the dowry requested was 10 Cattle an 10 goats and Wania said it was 10 head head of goats and Shs.400/=. I consider the of cattle and 10 dowry as testified by Wania to be the amount requested. The petitioner and his witness, the go-between, said that of cattle and 3 goats, to mention only the 5 head far as the principle I am concerned with is Livestock as concerned, were given as dowry. Wania did not deny having received that much. There was therefore a balance of 5 cattle and 7 goats, at the time the respondent head of the petitioner, before the conveyance of the went to respondent as a wife to the Petitioner could be in the opinion of the respondent and Wania, legally completed.

Whether where there is only a part payment of dowry a marriage is valid is a matter that is governed by the customary law of a given community.

In Case V. Ruguru (1970) E. A.55, evidence was given that under the Embu customary law a marriage ceremony between an Embu Woman and a Man of another tribe is not complete till half of the dowry, other things being equal, is Amulan Ogwang V. Edward Ojok, Civil Appeal No. paid. IN 50 of 1969, the girl's father demanded 20 head of cattle, The boy's (respondent's father) said 10 goats 8 hoes. that it would be difficult to find cattle. Thereupon, the girl's father said that he would accept shs.250/= in lieu of each head of cattle and for the inconvenience of getting the cattle himself, he demanded another 4 head of cattle or equivalent cash. The respondent's father paid shs.2,000/= and the balance was to follow. The daughter went into cohabitation with the respondent. As the balance was not forthcoming, the girl's father hired a lorry and collected his daughter from and gave back shs. 2000/= to the respondent's best-man. Because the girl had been made pregnant before the marriage had been completed, i.e. before all dowry had been paid, the girl's father sued the respondent for compensation. A

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magistrate Grade III awarded shs.140/= compensation and shs.10/= costs on the ground that as all the dowry had paid, there was no marriage. A grade II not been Magistrate confirmed this Judgment. The Chief Magistrate

allowed the respondent's appeal on the ground of the principle "Volenti non fit injuria." The girl's father appealed to the High Court. Salads, J., as he then was, I look (5° 1 lin 62° held that,

"The customary law was that a girl was not validly married until full bride-price had been paid. The father of the bride was therefore entitled to compensation for the pregnancy which occurred before the marriage was validly contracted."

This Judgment led to the writing of a comment by Mr. Obol-Ochola (Marriage Payment Under Customary Law) - in Uganda High Court monthly Bulletin, No. 142 of 1971. I will not go into the various academic and interesting views and arguments of the learned writer: He quoted from the Iteso- by J. C. D. Lawrence two decide cases among the Iteso but I have not been able to read these in the original. In Edigu V. E. Okello, High Court Civil Revision No.88 of 1952, the parties reached agreement on dowry to be paid and the Ikisina (payment for the breasts) which was itself made. The bride went into cohabitation. The bride's father then demanded some more cattle and during these negotiations, the bride's father took her by force.

It was held that the girl was a lawful wife of the groom and the father had no right to take her away. In S. Elasu V. Odiery, Ochero Sub-county Court case No. 11/51, dowry was not paid in full and the bride became pregnant. As the payment had not been completed, the girl was given by her father to another man. Her previous man was the legitimate father of the child; the mother was validly married to him then although all dowry had not yet been paid. The writer concludes that:-

"It is indeed, to be stressed that customary law on the subject, as elsewhere, has not been static; it has adopted or engrafted a more flexible and realistic rule and therefore has now adopted the idea of payment by instalment because of the ever soaring rate of marriage payment. As soon as the first instalment is accepted by the father of bride, there is submitted, a valid

## marriage under customary law."

In a very recent revision Order in Uganda V. Kuranimo Oliya and Sophia W/O Opio, Criminal Revision NO.10 of 1974, my brother Judge, Manyindo, J. held that "since the full dowry had not been paid in the instant case, Sophia (A2) was therefore legally not a married woman." The facts were that the two accused were charged with adultery contrary to sections 150A (1) and 150A (2) of the Penal Code respectively. For a conviction to stand under either of these sections, the woman must be married. There was evidence that the marriage was a customary one; that payment of the dowry was not completed and that the marriage had not been registered

with the appropriate authorities. The learned Judge referred to Wongo V. Dominiko Mano (supra) that "Sir Audley Mckisack, C. J., as he then was, held, quite rightly in my view, that a customary marriage is not a valid marriage until the dowry has been paid in full."

Regarding the learned Judges reference to the decision of Sir Audley Mckisack, C. J. as he the was, I respectfully disagree with him. In my opinion, there is no statement expressly or by implication in the Judgement of Sir Audley that a "a customary marriage is not valid until the dowry has been paid in full." Indeed the evidence was that the respondent had paid more that the dowry "permitted and required " by the local law. But this amount was less than " whatever the cupidity of the father may have thought a proper bride -price." It was, as I see it, because of the former that Sir Audley held that the marriage was valid, thus taking Judicial notice of the Custom that where dowry is paid there is prima facie evidence of marriage.

into a state of marriage is a Xalthough entering contractual process involving two parties as it is in an ordinary contract, a contract of marriage is a special kind in a number of respects especially in the case of a customary, marriage contract in which the contract is normally formed between parties not personally and directly affected by it but by parents or relatives. Be that as it may, I see no reason why the normal principle that title to a subject matter in a contract does not pass to the purchaser until payment in full is made unless agreed otherwise either at the time of the formation of the contract or payment of the first instalment or when the balance is due but not paid, I see

$i$ tu no reason why, this principle does not essentially apply to a contract of marriage under customary law. ( I am by no means comparing or equating a person, a woman, to ordinary commodities in contract).

IN consideration of the various decisions and views above, there are, in my view, three situations regarding the institution of dowry: The girl's family may request for no dowry at all and the marriage will be valid. Secondly, where the parties have agreed on any amount of dowry have adopted the maximum permitted by local law, or where there is one, the marriage is not valid unless the girl's family either expressly or by acquiescence waives its' right to the balance.

It will appear therefore that payment of dowry is not an essential requirement but is of evidential value in the validity of a customary marriage. Failure to pay it. where requested by the girl's family, only makes that marriage voidable, on the initiative of the girl's family alone.

as the present case is concerned, it is the third As far situation above that is relevant. I have already said

that I find it as a fact that the dowry demanded was as testified by Wania i.e., 10 head of cattle and 10 head of goats, taking the livestock alone for the purpose of this issue. The question now is : Did Wania forego the balance dowry: i.e. 5 head of cattle and 7 head of goats. of the The evidence is that the parties got married in January, 1967 with the knowledge though not blessing of the father of the girl since he concedes the petitioner approached him for his daughter and he agreed on condition that dowry was paid. He says that the petitioner "stole away" his daughter just because he took her away before all the dowry was paid. The parties lived together, though with perhaps more than the normal tear and wear of marital life, till April, 1972 when the respondent returned to her father and the petitioner sued the father for what appears to me to be restitution of Conjugal rights in his wife. In his defence, the father said that he did not take or in any way persuade the respondent to leave the petitioner.

There is no evidence from him or even from the respondent that Wania ever demanded or counter claimed before the magistrate the balance of the dowry. Instead, he would have been happy to see the respondent return to the

petitioner. Although I take notice of the custom that instalments of dowry where not fixed in terms of tome of payment, may run over years or even in extreme cases for the life-time of the husband, in this particular case, I am satisfied that the circumstances indicated that Wania had waived his right to the balance of the dowry

I hold therefore that there was a valid marriage between the parties.

The second issue is whether the petitioner, who has the burden of proof, has established to the satisfaction of the Court that a ground exists upon which a decree of Divorce could be granted.

Under section 5(1) of the Divorce Act, a husband has only one ground upon which he may petition for divorce and that is adultery. The Petitioner, the husband, alleges in paragraph 5 of the petition:-

"THAT the respondent had committed adultery with diverse men and in particular one Ambrose Buzele, the Co-respondent named herein."

The burden of proof is upon the petitioner and although adultery is a criminal offence in Uganda ( Section 150 A of the penal Code), in divorce proceedings, as my brother Judge Saied J., has quite rightly held in Edward Kakuuka V. Aliet Yudesi Kyoyanga (1972) 2 U. L. R. 66, the burden of follows the principle applied in civil cases, that it is, proof by balance of probabilities.

The petitioner's evidence is that after the respondent left him, she became pregnant and realised the pregnancy

in August 1972. Later he learned that she had delivered a child. He concluded that it was Buzele who had made her pregnant from the company he was keeping with the respondent and the house Buzele had bought for her in Arua and the bull he had paid as a fine to her father. These were of course denied by her father and Wania.

"In Taylor V. Taylor ( supra) Wilson J. said that, "... there is a tendency in this territory (Tanganyika, as it was then) amongst petitioner's to take it for granted that the Court will assume on the slightest possible evidence of association that the parties named in a divorce petition have been guilty of adultery. That is an entirely mistaken

$\tilde{\mathcal{L}}$

idea. In England, the Judges require definite evidence of illicit affection or familiarities sufficient to support an inference of quilty intercourse. The standard of proof is no less exacting here."

The evidence of very much of the same mind. $I$ am association alleged by the petitioner, even if it had not been denied by the respondent, would not be sufficient to prove adultery between the respondent and Buzele. I am satisfied, however, that the respondent left the home of the petitioner in April 1972 and that the petitioner had no access to her since that month till November, 1972 about which time the respondent said she conceived while living apart from her husband. The birth of the child out of wedlock, to which the petitioner testified and the admitted, is evidence of adultery by the respondent respondent. I am therefore satisfied that the petitioner has established a ground for the decree nisi to be granted.

I would like to comment on the evidence of the respondent denying that Buzele was the father of her child and that she had slept with him at any time, in other words, that Buzele is not the Co- respondent as alleged by the petitioner.

Section 6 of the Divorce Act says;-

"where the husband is the petitioner, he shall make the alleged adulterer a co- respondent to the petition unless he is excused by the Court from so doing on one of the following grounds:-

(a) that the respondent is leading the life of a prostitute, and that he knows of no person with whom the adultery has been committed: or,

(b) that he does not know the name of alleged adulterer although he has made due efforts to discover it; or

It seems to me that the intention of the Legislature was on mere being divorced wives against to protect allegations of adultery where a husband may simply enter into collusion with another man to act as a co-respondent

or convince at an actual adultery with his wife. Thus, in my opinion, where the wife does not answer the petition and does not appear to defend herself, failure to join the Co-respondent would not be fatal to the petition unless there is collusion between the spouses. But where the wife defends, failure to join the Co- respondent would be fatal unless excused by the Court as provided above.

Where however, as here , the petitioner joins a person as a Co- respondent in good faith who turns out not to be one, as I believe Buzele is not, this is not fatal to the petition.

The third issue is that the Court must be satisfied that there is no absolute bar against the decree being granted or if any discretionary bar exists, the Court has to consider whether discretion could be exercised in favour of the petitioner. Since I have held that the petitioner has not proved that there was adultery between the respondent and the alleged Co-respondent Buzele, and I believe the disclosure of the respondent herself that Buzele was not the father of her child, it follows, as I believe that the petitioner sought the identity of the man who made her pregnant from her and she refused, that the petitioner did not know the man who made her pregnant leading to the birth of that child. He could not therefore have connived at that adultery. There could equally be no collusion with an unknown adulterer. The petitioner testified that he had no sexual intercourse with her after leaving him in April. There has therefore ben no condonation. From the demeanour and evidence of the parties and their witnesses, I am satisfied that there was no collusion in the prosecution of this suit.

There remains the question of discretionary bars.

Section 9 of the Divorce Act provides that if the Court is satisfied that there is no bar of connivance or condonation or collusion against the petitioner the court shall pronounce a decree nisi for the dissolution of the marriage : provided that the Court shall not be bound to if it finds that there exists a discretionary bar do so of: adultery by the petitioner, unreasonable delay by him in seeking the decree, or Cruelty to the respondent, or desertion before the respondent's adultery complained of.

From this provision of section 9, it is clear that the matrimonial offence of adultery, Cruelty or desertion or conduct conducing and the procedural failure of unreasonable delay in presenting or prosecuting the petition, operate only against the petitioner. It is the petitioner who must come to the Court with clean hands if he seeks the discretion of the Court. It is irrelevant

therefore, it seems to me, taht the respondent may have conduced the petitioner to commit adultery.

Now, I will consider each of the above as a discretionary bar against the petitioner. Adultery: first of all , the marriage of the parties was a customary marriage. Under Customary law including that of the Community to which the parties belong, in particular, there is no limit to the number of women a man can have as his bewedded wives. only his personal capacity and material resources It is evidence that the petitioner him. There is no to limit a civil monogamous marriage ceremony while went through with the respondent, or after she left him but before the presentation of or during the hearing of the petition. The petitioner said that he got another woman as he was the respondent had left The him. suffering after respondent said that the Respondent had other wives. The evidence indicate that these were wives married under customary law. Although a man married under customary law can commit adultery when he commits sexual intercourse married woman other than his wife, there is no with a evidence in this case that the petitioner had a Love a woman outside his matrimonial circle. I am affair with satisfied therefore that there is no discretionary bar of adultery against the petitioner.

Secondly, was the petitioner guilty of unreasonable delay on presenting or prosecuting the petition. Delay in this case runs from the time the petitioner was aware of the adultery-ground of the petition. Being just suspicious that your partner in marriage is in love with another person is not enough to supply the required evidence for presenting a petition. Delay cannot therefore be said to a petitioner from the time of mere against $start$ It only starts from the moment is there suspicions. certain evidence of illicit intercourse. The petitioner said that it was in August 1972 when he realised that the respondent was pregnant. Until then, he had semn the respondent in company with Buzele at social gatherings. The petition was presented on September 25, 1973 about a year later. Before the end of the year, it was fixed for hearing but removed at the convenience of the Court. I am satisfied taht there was no unreasonable delay on the the petitioner in presenting or prosecuting the part of petition.

Regarding the allegations of cruelty against her, the petitioner said that he never gave her trouble while they lived together, he never beat her the eyes asa she alleged and he never told her that if she did not leave him, he would make her crawl in suffering. On the other hand, the respondent referred to a number of occasions when the petitioner ill-treated her and inflicted pain on her with a stick. It was because of these beatings,

quarrels and threats of being made to suffer more, she said, if she stayed on, that she left him. Her father said that at one time a fine had to be paid by the

petitioner for beating the respondent but it was never paid.

There is no proof of these alleged beatings and threats of suffering besides the word of the respondent and Wania. It seems to me, having seen both parties in Court, that it was basically the incompatibility of the spouses springing from the wide gap in their educational standards, that eventually damped their marital bliss of the first three years. Although I would not go to the extent of saying that the husband of the class of the petitioner or, indeed any husband for that matter, has a prerogative of beating his wife as submitted in Boota Singh s/o Nranjan Singh V. R. (1960) E. A. 638, I would venture to say taht the degree of marital wear and tear varies with the class of the spouses. In the lower class of society, it is grater. Considering the social class of the parties in this case, I am not inclined to hold that this husband was cruel to this woman. In other words, the individual spouse, in our society, should be considered in light of the social environments he or she lives in deciding whether he or she has suffered cruelty. It may be asked whether the petitioner inflicted cruelty on the respondent through denying her sexual intercourse as she alleges. The simple answer is that legal cruelty is not proved by the evidence adduced before me.

Fourthly, was there desertion by the petitioner? It seems taht what operates as a bar, to me absolute or discretionary, must be a matrimonial misconduct such as would render injustice to the other spouse or better still supply a ground for petition for Divorce or Judicial Separation. In the case of desertion, it is not legally desertion so as to act as a ground on its own for judicial separation or as a partial ground in favour of a wife only, till taht desertion, as defined in law, has run for a minimum of two years. The evidence in this case is that two years had not yet accrued so asa to raise the consideration of the issue of whether the petitioner was in constructive desertion.

$\cdot)$

There remains then only one other possible discretionary bar: conduct conducing by the petitioner. The respondent said that after she had left the petitioner, she was sexually frustrated and so she committed adultery in or about the month of November 1972 when she said she conceived. It is not disputed that the respondent was living apart from her husband since April 1972 but the petitioner denies having given her a justifiable cause to I have already held that there is no evidence leave him. of cruelty on the part of the petitioner as could have justified the respondent to leave him. Instead, there is evidence taht the petitioner sued the respondent's father for the return of his wife. Under these circumstances, I am not moved to hold that the petitioner's conduced the respondent to commit the adultery which is the ground of this petition. Could the fact that he did not give her support while she lived apart work as conduct conducing?

2.2

The respondent does not say that she committed adultery so as to get support from her paramour. Mere failure of a husband to give his wife the necessaries of life while living apart when she has sufficient means of her own. it seems to me, would not be such conduct as could be regarded as conducing her to commit adultery, see for example: Francis Charles Noel Malleappah $v.$ Pauline Malleappah & K. Sreedhaman (1943) I T. L. R.741.

In the result, I am satisfied that the petitioner has proved his case. Decree nisi is hereby granted.

Now, there remains the incidental issues $\verb|of|$ damages, costs, custody of Children of the marriage, alimony pendete lite and the return of the dowry and the maintenance of the children.

On the issue of damages, I have held that the petitioner has not proved that Buzele ever committed adultery with the Respondent: he is therefore not a Co- respondent. Counsel for the petitioner has also waived the petitioner's prayer for damages against Buzele because he was not served. No damages are therefore awarded.

On costs, counsel for the petitioner submitted that the respondent herself said that the petitioner had made her go up and down and he should pay the costs.

The general principle is that the successful party should have his costs paid by the other. But in my opinion, where a spouse has led to litigation where the dispute could be settled otherwise, then the party who is responsible for the litigation would be liable for the costs. The marriage was under customary law. It could

therefore quite legally have been dissolved under customary law outside the walls of this court. Evidence has been adduced that the petitioner has all along refused to the go to respondents father for reconciliation- the first step, particularly ion i customary marriages, failing which divorce discussions and arrangements could have been made. I find as a fact therefore that it is the petitioner who was liable for the coming up of this litigation. Furthermore, the Court has discretion to order costs for the guilty wife. See: Cogle V. Cogle Moynagh (1930) 12 KLR 105. The petitioner will therefore pay the full costs of the suit. Secondly, there is no reason why this petition was not, in the first instance filed in the magistrate Court. The costs will therefore be on magistrate Court scale.

国家

On the issue of custody, each party has prayed for it. There are two children of the marriage, a boy Bosco Atiku and a girl, Night Draru, aged about 6 and 4 years respectively. Since 1972, when the respondent left the petitioner's home, the two children are living with the respondent. The petitioner has not, according to evidence, given any, maintenance for the children since they left his home. The mother has a comfortable Income,

**Talk**

looked after herself and the Children without she has complaint. Their grandfather, Wania, appears to be happy with his grandchildren being with their mother at his home, where, according to the evidence, which I have no cause to believe, she is staying. The petitioner has also a comfortable income, has another wife or Wives at his home and has himself all along shown love and desire to keep his children with him as indicated for example by his efforts to get them back through the local chiefs. The respondent objects to the children leaving her now because, she says, the petitioner's wife or wives will not like them and so they will not look after them well. The petitioner himself, she says, "was full of dirt" and could not bring them up well. She said, however, that when they are grown up later, he could take them.

Counsel for the petitioner submitted that as the mother was the guilty party, she was not fit to have the custody of the Children. With respect, there is no merit in this argument. There is an evidence that the mother is habitually immoral nor does it follow that once adultery always adultery.

Now, it is a well established principle of law that the

fundamental consideration in deciding which parent or person should have the custody of the child $\quad\quad\texttt{is}\quad\quad$ the the child: the question is: welfare of which $\quad\text{ of }\quad$ $the1$ parents or claimants will better safeguard or ensure the welfare of the child? The welfare is the material and the moral well-being of the child. It is not necessarily because one is rich in money that he will be a better person to look after the children $\mu$ The disposition and psychological attitude towards children, all that the loving and the warm atmosphere in a home from a parent or any other person means more in the up-bringing of a child than all the money in the World. See: Re story ( 1916) 2/ I. R.3238 and RE Hofman, Jofmann, V. Hofmann (1972) E. A. 100. It is however, a recognised principle in customary law taht a claim of the father to the custody of his children especially male Children, unless there would be detriment to the welfare of the child, must prevail over taht of the mother. See Re Zainnab Abdul Sultan Nathoo-An Infant (1959) E. A.917. As far as the custom of the community of the parents is concerned, there is no doubt, and the respondent in agreeing to the children going to the petitioner later concedes to this, that the father or his male relative in his absence should have the custody. There is nothing repugnant in the Custom asa it was well recognised in Re: G. N. (An Infant) (1957) E. A.714. But here again, the welfare of the child must be the paramount consideration. Between the two parents and considering the custom, I would have been moved to give custody to the petitioner were it not for the fact that there is no evidence from the wife or wives $of$ the petitioner as there $\verb|is|$ ${\tt from}$ the father $of$ the respondent, that the children would be welcome. IT is known that children looked after by their father's wife not herself not their natural mother seldom find who is

$\cdot \downarrow'$

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happiness in such a home. Custody is therefore granted to the respondent. As far as right of access to the children is concerned, the petitioner will be at liberty to visit them at their grand-father's home twice a month on Sunday's. This right shall not, however, extend to the Petitioner calling upon the Children to visit him at his home or anywhere else.

Then there is the issue of return of dowry. First of all, there is no question on the jurisdiction of this Court regarding the enforcement of observance of a Custom. Section 8 of the Judicature Act quoted above provides for this. The preliminary question is whether a custom the community of the parties for the return of exists in the dowry on divorce. As my brother Judge, Saied, J. rightly held in Felista Nakawuma and Two Others V. Uganda (1972) I U. L. R. 3 at p.8, before a Court could take Judicial notice of custom, such custom must have ben either already recognised judicially so that no more it is required or, if it is not already $SO$ proof of required or, if it is not already so recognised, the Court must not simply be requested to take judicial notice of it, so as to enable the Court to consider it in Simon Petero Wakiwugulu Kigozi V. issue. Thus as an Njuki, U. L. R. Vol VI. Katende Semioni Lukiiko Per the privy council cases: In reference was made to Eshugbayi Eleko Vs. Government of Nigeria A. I R 1931 at page 253, Lord Atkin observed that,

" It is the assent of the native community that gives a custom its validity and therefore, babarious or mild, it must be shown to be recognised by the native community whose conduct it is supposed to regulate."

And in Effuat Ammisat V. Effuat Krabat A. I. R. 1936 P. C. Lord Maugham said,

" Material customs must be proved in the first instance by calling witnesses acquainted with them until the particular customs have by frequent proof in the courts become notorious that the Courts take Judicial notice of them."

And at page 117 the learned Chief Justice hearing the appeal said,

" It thus appears that although, it is not reasonable or necessary in all cases when native custom is involved to have evidence thereof adduced before the Court, in the present case, there

alleged one of

**Stationary**

was infact clear evidence of the two customs to have been infringed and that evidence from the sources best qualified to speak as to such customs."

Reference may also be made to the case of Marko Kajubi V. Kulanima S. Kabali (1944) 11 E. A. C. A.34, in which Sir Joseph Sheridan, C. J. held, at page 37, that,

" The native community may assent to some modifications of an original custom, but the modification must be made with assent of the native community. It cannot be made by an individual or a number of individuals. Least of all can it be made by a court of Law."

The above four decisions are in my view, relevant to the principle that if a custom has been recognised by $\overline{a}$ community as regarding their social relations then on being proved as such, it is the duty of the court to enforce its observance unless it is against the Law or natural Justice. But if this recognised Custom is already notorious and the Courts have already taken judicial notice of it, then it does not need to be proved.

Now, the question is: Is the custom of return of dowry on divorce recognised by the community of the partaies? If so, does it need proof or not before I can be called upon to enforce it in the present case?

As pointed out above, there is no local law similar to the Teso Births, Marriages and Death law or The Bukedi Bride price Law, for the Lugbara community regarding the return of dowry. It is therefore simply a matter $of$ evidence being adduced by the parties.

The evidence regarding the customs is from the testimony of the respondent and Wania. The respondent said that when Wania was taken to Court (Civil Case No. MA 47 of 1972) for the return of the respondent to him, the Courts decision on the advice of two elders, was that was the respondent was had lived with him and produced children all the dowry could not be returned but only two head of shs. $200/=$ . Wania himself cattle. two goats and corroborated his daughter, adding that normally, if a husband sends a wife away, dowry is not returned but if the wife is the quilty spouse, dowry is returned.

The petitioner does not dispute the custom, indeed he prayed for the return of the dowry through his counsel although previously when the magistrate decided, as the Respondent and Wania testified, he preferred to get back his wife and so he never collected his dowry from Wania.

I have not been able to find a decision of this Court on this Custom, indeed, the practice was formerly for the "non-native Courts" to leave the issue of enforcing return of dowry to "native Courts." In one case before the Principal Court of the then Kingdom of Buganda, Yosiya Kigoyi V. Erisa Kawa & Mary Nanyonga, Principal Court Civil case No.110 of 1950, the plaintiffs wife, after a number of years of living together, was taken away by her father for good without any fault on the part

of the husband, the plaintiff. The plaintiff claimed for a repayment of shs.700/=, allegedly paid by him as dowry from the first defendant, the wifes father. He however failed to prove that he gave so much as dowry. The first defendant admitted that only shs.50/= was given. It was as the first defendant was quite ready to decided that, refund shs.50/=, only that much as dowry should be returned. In another case from Tanganyika, as $\quad\quad\textsf{it}\quad\quad$ was then, Daniel Owino V. Ocharia Bigambo, NO.159 of 1959, 6D. A. L. C.3, the Respondent Ochara paid 16 head of cattle His wife left him while pregnant and went to as dowry. the appellant, Daniel and gave birth to a child while living with Daniel. After that, Ochan purpoted to divorce her. She gave birth to a second child before dowry had been returned to Ochan. It was held that until dowry had been returned, there was no true divorce and therefore, the second child was also Ocharia's child. In the present case, the petitioner is not claiming the child born by the respondent after she left him. Perhaps there is no such custom among the Lugbara or he just does not care. But both these decisions that the custom of return of dowry is generally recognised in African societies where the wife is the guilty spouse.

$\frac{1}{2}$

On the evidence before me, I am satisfied that the custom recognised in the community of the parties. Wania said that dowry is returned if the wife is the guilty spouse, otherwise none is returned at all. The two elders also advised taht as the respondent had produced children, the petitioner could not have all the dowry back. Accept both statements as correct exposition of the custom. As I have already said, I accept the number of livestock mentioned by the father of the respondent as the part of the dowry given. I see no reason why I should disagree with the decision of the magistrate on the advice of the elders that only two head of cattle and two goats and shs. 200/= be returned by Wania to the Petitioner. In the event of his failing to get cattle and goats, he should return their equivalent in money, which according to the evidence of the go-between on the value of the cow and the goat then , would be shs.400/= (for two combination and shs.200/= a total and shs.200/= a total shs.400/= (for two cows) of shs.660/= (shillings six hundreds sixty).

Finally, the respondent prayed for alimony pendento lito and maintenance for the two Children of the marriage. Counsel for the petitioner objected on the ground that the respondent had not put this claim in her reply.

Section 24 of the Divorce Act provides that:-"In any suit under this Act, the Wife, whether or not she has received a protection Order, may apply to the Court for alimony pending the suit and the Court may thereupon make such order as it may deem

just."

Provided that alimony pending the Suit shall in no case exceed one fifth of the husband's average Income for the three years next proceeding the date

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of the Order, and shall continue in the case of a decree nisi of dissolution or nullity of marriage until the decree is made absolute."

And regarding the maintenance of Children, Section 30 provides that:-

" In suits for dissolution of marriage, ...., the

Court may at any stage of the proceedings, ..., make such order as it may think fit, and may from time vary or discharge the said Orders, with time to respect to the Custody, maintenance and education of the minor children of the marriage, or for placing them under the protection of the Court." On the question of procedure, section 4(2) says in part that "such jurisdiction shall, subject to the provisions of the Act, be exercised in accordance with the Law applied in matrimonial proceedings in the High Court of England," The only section in the Act Justice in providing for the procedure is section 31 which says that " subject to the provisions of this Act, all proceedings under this Act shall be regulated by the Civil procedure Act.

I seems to me that for procedure, I must first look to the Act itself; if there is no guidance to the CIVIC procedure Act and if none there, to the Law applied in Matrimonial proceedings in the High Court of Justice in England.

Regarding the procedure for a wife to apply as provided for under section 24 above, the Divorce Act and the Divorce Rules made under section 43 thereof are both silent and so the CIVIC Procedure Act and the Civil Procedure Rules. I turn thereof to the matrimonial procedure rules in the High Court of Justice in England. As I see it, the law of matrimonial proceedings referred to in section $4(2)$ above must be the contemporary Law. As I have been able to discover, the latest law far as applied in matrimonial proceedings in the High Court of Justice in England is in the Matrimonial Causes Rules 1971. Rule 68 $(1)$ says:-

" (1) Any application by a Petitioner or by a

respondent spouse who files an answer claiming relief, for:-

(a) an order for maintenance pending suit, (b) . . . . . . . . . . . . . . . . . . . (c) . . . . . . . . . . . . . . . . . . . $(d) \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \ldots \$ (e) . . . . . . . . . . . . . . . . . . . $(f) \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \cdots \$ shall be made in the petition or answer, as a the case may be.

(2) Notwithstanding anything in paragraph (1), an application for ancillary relief which should have

been made in the petition or answer may be made subsequently.

(a) by leave of the Court, either by notice in form 10 or at the trial,.."

In view of Rule 68 $(2)$ $(a)$ above, it was quite in order for the respondent to make her application for alimony pendente lite at the trial. The quesation know is: Can an Order be made for alimony pendente lite for the respondent in this suit?

First of all, section 24 above provides for a maximum of " One-fifth of the husband's average net Income for the three years proceeding the date of the Order." All that the Court has regarding the Income of the husband is, according to the respondent, that he was earning about shs.5,000/=a month as a general merchant. This is not enouogh evidence upon which to make the Order. Furthermore, it is a principle of law that a husband, s duty to maintain his wife ceases when she commits adultery: See Govier V. Hancock(1796) 6 Term Rep.603. The principle has even been extended to a mere reasonable belief of adultery having been committed: See Chilton V. Chilton (1952) 1 All. E. R. 1322. In Gogle V. Cogle & Moynah (supra), Counsel for the respondent applied for maintenance pendente lite and the respondent had been found, as in the present case, guilty of adultery. As in the section of the Divorce Ordinance, cap. 70 our case, of the then Kenya Laws, did not deal with the question of whether a guilty wife was entitled to alimony till the decree had been made absolute.

The learned trial Judge, referred to the English case of

Dun V. Dunn (1888) 59 L. T.385, in which the Court of Appeal held that where a wife has been found guilty of adulterate, and a decree nisi has been granted agents her, she is not entitled to alimony pendent lite after the date of the decree but the trial Judge has discretion to order it to continue. Cotton L. J., in Dunn v. Dunn (supra) said, "Until adultery has been proved against the wife she is entitled to support, and the Court gives her alimony pendete lite. But when her adultery has been proved though she is still a wife, she has lost that right. Ought not the alimony then to stop at the Verdict?"

In vie of the above, I hold that the Respondent is not entitled to alimony pendete lite. The respondent is, however, at liberty to apply for maintenance up to the date of this decree nisi when she provides the necessary evidence.

Finally, the respondent applied for maintenance for the two Children of the marriage. Section 30 of the Divorce Act, quoted above, empowers the Court on its own motion, at any stage of the proceedings to Order maintenance for the Children of the Spouses. I Order therefore that the

Petitioner shall pay to the respondent shs.200/ $=$ monthly for the maintenance of both children and in addition the Petitioner shall pay the School fees of the Children.

## J. M. Kakooza AG. JUDGE

$6/9/74$

Judgment delivered. Mr. Mugenyi for Petitioner present. Respondent absent.

> J. M. Kakooza AG. JUDGE $6/9/74$