BRUNO KIWUWA Vs. IVAN SERUNKUMA AND JULIET NAMAZZI
THE HIGH COURT AT KAMPALA (KASULE, J.)
CIVIL SUIT No. 52 of 2006
MAY 5, 2007
Domestic Relations-Marriage-Marriage between parties from same clanBaganda custom-Whether parties can lawfully contract marriage under Marriage Act, Cap 251. Domestic Relations-Marriage-Marriage between parties from same clan
Baganda custom-Whether parties can lawfully contract marriage under laws of Uganda. Domestic Relations-Marriage-Customary Marriages-Introduction ceremonyBaganda custom-Whether failure to conductformal introduction ceremony is a prerequisite to marriage under Marriage Act, Cap 251 and Marriage of Africans Act, Cap 253.
Domestic Relations-Marriage-Customary Marriages-Consent from parents-Failure to obtain consent-Whether obtaining consent from parents is a pre-requisite to marriage under Marriage Act, Cap 251 and Marriage of Africans Act, Cap 253.
Domestic Relations-Marriage-Customary Marriages-Custom-Definition of custom-What are the prerequisites for recognition of custom as customary law.
The plaintiff instituted this suit to challenge the celebration of marriage of the first and second defendants on grounds that both defendants, like the plaintiff, being Baganda by tribe, belonging to the same clan of "Ndiga" that is to say, sheep, could not lawfully by reason of an obtaining custom, contract such a marriage. According to the plaintiff such marriage is abominable, immoral, unethical, illegal and uncustomary. The issues that came up for consideration inter alia were; whether the defendants being Baganda by tribe, and as such members of the same clan of "Ndiga", could marry under the Marriage Act, Cap 251, or any other laws of Uganda and whether failure to conduct a formal introduction ceremony and obtaining consent from the parents is a pre-requisite to contract a marriage under the provisions of the Marriage Act, Cap 251.
Held:
(i) It is settled that where customary law is not documented or so notorious for the Court to take judicial notice of the same, it has to be proved in evidence. In this case, it was admitted that as Baganda by tribe and being of the same clan, a custom exists and applies to both defendants that, a Muganda man and a Muganda woman of the same clan cannot contract a marriage as between themselves.
(ii) A custom is defined as a practice that has been followed in a particular locality in such circumstances that it is to be accepted as part of the law of that locality. In order to be recognized as customary law, it must be reasonable in nature and it must have been followed continuously, and as ifit were a right, since the beginning of legal memory.
(iii) Customary law must be in conformity with the Constitution; the supreme law in Uganda. Any custom inconsistent with the Constitution is void to the extent of the inconsistency.
(iv) The Marriage Act, Cap 251, recognizes the validity of a customary marriage because at some point one can turn a customary marriage into a civil marriage and one cannot contract a customary marriage if married under the Marriage Act, Cap 251. The Marriage Act therefore takes cognisance of the operation ofthe marriage customary laws. The Act does not exclude the observance of a customary law or practice by those intending to contract the type of marriage the Marriage Act allows. In this case, the custom in issue constituted lawful cause under the Marriage Act to successfully challenge the marriage of both defendants under the Marriage Act, Cap 251.
(v) Since the advent of the colonial era and Christianity (and Islam), native Ugandans kept to their customs in marriage, it became necessary for the religions to give due recognition to some of these customs in the celebration of marriage. Thus marriage celebrated under the Marriage Act becameacombination of both what is religious and what is customary, while remaining essentially a church or a civil marriage and not a customary one. The Court takes judicial notice of this notorious fact of the fusion of what is religious and what is customary as obtaining in Uganda in celebrating marriages under the Marriage Act. The customary law did not allow them to marry both being members of the same clan.
(vi) The Marriage Act, Cap 251 provides for challenging an intended marriage under the Act, on many other grounds, independent of the prohibited degrees of consanguinity. It does not follow therefore that once a couple satisfies the test of prohibited degrees of consanguinity, their intended marriage cannot be challenged on other grounds, such as violating the customs of clan mates not marrying each other.
(vii) There is no reason why the custom in issue can apply to a customary marriage and yet cannot apply to a marriage under the Marriage Act when, whether under the Marriage Act or the Customary Marriage (Registration) Act, the defendants remain of the same tribe and the same clan. The custom ought to apply in both cases. In both cases its violation makes the marriage void.
(viii) A custom is repugnant to justice and morality if it causes aversion and disgust to the principles of good behaviour and as to what is reasonable and fair. A custom which is repugnant violates natural justice, equity and good conscience. In this case, the custom that parties from the same clan cannot contract a marriage, is not barred and is not in conflict or inconsistent with the Marriage Act, Cap 251, or with any other written law. It is also not repugnant to natural justice, equity and good conscience.
(ix) It is a custom of the Baganda as a tribe that before a marriage is contracted, it is preceded by an introduction ceremony. Judgment entered for plaintiff.
Legislation considered:
Customary Marriage (Registration) Act, Cap 248, Section 11 (d) and second schedule Evidence Act, Section 101 Hindu Marriage and Divorce Act, Cap 250, Section 1 (a) Judicature Act, Cap 13, Sections 14 and 15 Judicature Act, No. 11 of 1967, Section 3 (2) b (ii) Magistrates Courts Act, Cap 16, Sections 1 (a), 10 Marriage and Divorce of Mohammedans, Cap 252 Marriages Act, Cap 251, Sections 10 (c), 12, 13, 21, 29,36, 49, 50 Marriage of Africans Act, Cap 253 Penal Code Act, Cap 120, Section 149 (1) The Constitution of the Republic of Uganda, 1995, Articles 2, 31, 32 (2), 37, 43, 246
Cited cases:
Kinami Vs Gikanga [1965] EA 735 Magwi Kimito Vs Gebeno Werema [1985] TLR 132 Marko Kajubi Vs Kulanima Kabali Ext A34 1944 RVs Amkeya [1917] EA Lukwago Vs Kizza and Another [1999] 2 EA 142 Virginia Edith Wamboi Otieno Vs Joash Ochieng ongo and Omolo Sirange [1982] KAR 1049 Other legal materials referred to: The Application of Customary Law in Uganda: By Professor Joseph M.N. Kakooza: In the Uganda Living Law Journal of the Uganda Law Reform Commission: Volume. 1, No. 1 of 2003 Dictionary of Law, 4th Edition, Oxford University press by Elizabeth A. Martin, Page 122
JUDGMENT OF COURT
The Plaintiff instituted this suit to prevent celebration of the marriage of the first and second Defendants on the ground that both defendants, like the Plaintiff, being Baganda by tribe, belonging to the same clan of "Ndiga" i.e. Sheep, cannot lawfully by reason of an obtaining custom, contract such a marriage. It is the Plaintiff's case that such a marriage "is abominable, immoral, unethical, uncustomary, illegal": paragraph 20 of the plaint. The first Defendant a male, aged 29 years, is a medical doctor.
The second Defendant a female, aged 30 years is a Makerere University graduate of Agriculture (Economics) employed by International Food Policy Research Institute, Kampala. The Plaintiff asserts to be the biological father of the second Defendant It is an admitted fact that both Defendants planned to celebrate a marriage in Holy Matrimony on 24th June 2006 at St. Francis Chapel, Makerere University, Kampala. This suit was then instituted on 23rd June 2006. Court issued an Interi Order staying the intended marriage pending disposal of this suit Both Defendants filed a joint written statement of defence. The second Defendant denied the Plaintiff as her biological father. She however admitted that the Plaintiff cared and supported her from birth to completion of her university education. She claimed, the Plaintiff did so under the mistaken belief that she, the second Defendant, was his biological daughter.
Since her father was not the Plaintiff, but one Akiiki, a Mutoro by tribe, the second Defendant contended she did not belong to the "Ndiga" i.e. Sheep clan of the Plaintiff. There was thus no custom applying to her, to stop her from marrying the first Defendant The Defendants also contended that a marriage between the two of them, as clanmates, if this was the case, would merely be culturally repugnant, but not illegal as the written law of prohibited degrees of consanguinity did not cover then. 30 35 40 Further, both Defendants being 21 years and above, old, the consent ofthe Plaintiff to their marriage was unnecessary.
On 12th July 2006, before Court, the Plaintiff and the second defendant agreed, and subsequently took a DNA test. The Report of the DNA test was filed in Court by consent on 26th October 2006.
At conferencing the following matters were agreed upon:-
1. It was conceded as a result of the DNA test Report that the second Defendant was a biological daughter of the Plaintiff.
2. The father of the first Defendant is Mr Samuel Kayigwa, a Muganda by Tribe, of "Ndiga" i.e. Sheep clan.
3. The Plaintiff is a Muganda by tribe and of "Ndiga' i.e. Sheep clan.
4. The first Defendant's biological father is not a blood brother of the Plaintiff.
5. The first Defendant's biological mother is Ms. Joyce Nsamba.
6. The Second Defendant's biological mother is Ms. Nalongo Ndagire Catherine Binaisa.
7. The first Defendant's biological mother, Ms. Joyce Nsamba, and the second Defendant's biological mother, Ms Nalongo Ndagire Catherine Binaisa, are not blood sisters.
8. Amongst the tribe of Baganda, a custom obtains that clan-mates i.e. a man and a woman of the same clan do not contract a marriage as between themselves.
9. Holding a formal, introduction before marriage whereby the families of the bride and bridegroom meet before marriage is a custom of the Baganda as a tribe.
The framed issues are:-
(a) Whether or not the Plaintiff is a biological father of the second Defendant.
(b) Whether the defendants, being Baganda by tribe and being members of the same "Ndiga” i.e. Sheep clan, can lawfully contract a marriage under the Marriage Act, Cap.251.
(c) Whether the defendants being Baganda by tribe and being members of the same "Ndiga"i.e. Sheep clan, can lawfully contract a marriage under the laws of Uganda.
(d) Whether failure to conduct a formal introduction ceremony and obtaining consent from the parents is a pre-requisite to contract a marriage under the provisions of the Marriage Act, Cap.251.
(e) What are the remedies available to the parties?
Both Defendants abandoned the claim in their counterclaim in the suit Parties opted not to adduce any formal evidence by Witnesses. Reliance was on the admitted facts, the DNA test Report the pleadings and annexures thereto.
Respective written submissions were filed.
For Plaintiff, it has been submitted that: celebration of marriage under the Marriage Act may be halted for just cause, and that violating an established custom, such as the one in issue, is such a just cause.
Further, that Article 37 of Constitution and Sections 14 and 15 of Judicature Act, Caр. 13, enjoin Court to enforce the custom in issue as the same are enjoyed by the Baganda as a tribe as a constitutional right
For the Defendants, it was contended that the custom in question do not apply to their intended marriage which is under the Marriage Act, and not under the Customary Marriage (Registration) Act, Cap.248.
The custom was not part of the prohibited degrees of consanguinity under section 149 of Penal Code Act, Cap. 120 and Section 11 (d) and second schedule of the Customary Marriage (Registration) Act.
Court will proceed to resolve the issues framed.
As to the first issue, the DNA test report, accepted by both sides to the case, established that the Plaintiff was biological father of second Defendant.
The first issue is therefore resolved by declaring that the Plaintiff is the biological father of the second Defendant The second and third issues are to be considered together.
The two are paraphrased together as:-
Whether both Defendants being Baganda by tribe, and as such members of the same 'Ndiga' i.e. Sheep clan, can marry under the Marriage Act Cap.251, or any other laws of Uganda.
It is settled that where customary law is not documented or so notorious for court to takejudicial notice of the same, it has to be proved in evidence: KIMANI VS. CIKANGA [1965] E.A. 735.
In this case, it is admitted that as Baganda by tribe and being of the same clan, a custom exists and applies to both Defendants that a Muganda man and a Muganda woman of the same clan cannot contract a marriage as between themselves.
The issue for resolution is whether, given the provisions of the Marriage Act, Cap.251, or any other written lavvs, such a marriage under the Marriage Act is still illegal by reason of this custom.
"A Custom" is defined as.
"A practice that has been followed in a particular locality in such circumstances that it is to be accepted as part of the law of that locality. In order to be recognized as customary law, it must be reasonable in nature and it must have been followed continuously, and as if it were a right, since the beginning of legal memory."
See a Dictionary of Law, 4th Edition, Oxford University Press: Editor Elizabeth A. MARTIN: P.122.