Bujara v Bujara (Civil Appeal 81 of 2002)

Court of Appeal · [2004] UGCA 21 · 2004 Appeal Dismissed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Second appeal from High Court decision dismissing appeal against divorce decree granted by the Chief Magistrate's Court

Decision

Appeal dismissed; High Court decision upholding the divorce decree affirmed

The full judgment

Read the complete, verbatim text of this judgment.

Cited — treatment unverified cited in 3 (treatment unverified) Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed a second appeal challenging a divorce decree. It held that while failure to register a customary marriage does not invalidate it under the Customary Marriage (Registration) Act, a customary marriage must still be proved by evidence of customary ceremonies, and mere mention of other wives is no proof of marriage. The court found no mistrial: the appellant was served, cross-examined the respondent, gave evidence, raised no objection to the divorce, and could have adduced additional evidence on appeal but did not. A retrial would not be ordered as the appellant failed to establish grounds for the court to exercise its discretion judicially.

Facts

The respondent filed a divorce petition in the Chief Magistrate's Court at Kabale seeking dissolution of her marriage to the appellant, celebrated on 12 April 1985 at the District Commissioner's office in Kabale. The petition alleged cruelty and adultery. The appellant filed no reply but appeared, cross-examined the respondent, and gave his own evidence. He stated he had no problem with the divorce provided certain property matters were clarified and that he had three other wives or women, having described himself as a bachelor in the marriage certificate. The magistrate found adultery proved, granted a decree nisi, and ordered the respondent to keep custody of the children and remain in the matrimonial home. The appellant appealed to the High Court, which dismissed the appeal, holding that mere mention of women or wives was no evidence of marriage absent registration under the Customary Marriage (Registration) Act. He appealed further, contending there was no legal marriage because of pre-existing customary marriages, and that a mistrial had occurred.

Issues

Whether the failure to register a customary marriage invalidates such marriage.
Whether the mere mention of other wives or women constituted evidence of a valid customary marriage capable of vitiating the celebrated civil marriage.
Whether there was a mistrial entitling the appellant to a fresh trial.
Whether the trial magistrate failed in his duty to conduct the proceedings impartially and to inquire into the alleged prior marriages.

Orders

Appeal dismissed.
Costs to the respondent here and below.

Key headnotes

Family Law — Customary Marriage — Effect of Failure to Register

Failure to register a customary marriage within the time specified does not render the marriage invalid; the validity of a customary marriage is governed by section 11 of the Customary Marriage (Registration) Act, and non-registration is merely a punishable offence under section 20.

Family Law — Customary Marriage — Proof of Existence

A customary marriage, like any other marriage, must be proved by evidence of the relevant customary ceremonies having been performed; the mere mention of other wives or women is not evidence of a legally valid customary marriage.

Evidence — Burden of Proof — Party Asserting Prior Marriage

The burden of proving the existence of prior marriages lies on the party who asserts them, and a court can only act on the evidence actually adduced by the parties; it is not the duty of the court to infer a valid marriage from a bare mention of wives.

Civil Procedure — Fair Hearing — Role of Court in Unrepresented Proceedings

A court is not an inquirer; where parties choose to proceed unrepresented, the court is entitled to ask questions only on obscure matters to reach a just decision and cannot be faulted for failing to make inquiries on a litigant's behalf.

Civil Procedure — Retrial — Exercise of Judicial Discretion

An order for a retrial is a matter of judicial discretion and will generally be made only where the original trial was illegal or defective and where the interests of justice require it; the principles in Fatehali Manji apply equally to civil cases.

Constitutional Law — Right to Fair Hearing — Article 28(1)

Article 28(1) of the Constitution guarantees a fair, speedy and public hearing before an independent and impartial court, requiring the presiding officer to listen to the evidence and arguments of each side and ensure the trial is conducted according to the rules.

Legislation cited (7)

Divorce Act (Cap 249) s.3
Customary Marriage (Registration) Act (Cap 248) s.6(1)
Customary Marriage (Registration) Act (Cap 248) s.9
Customary Marriage (Registration) Act (Cap 248) s.11
Customary Marriage (Registration) Act (Cap 248) s.20
Divorce Rules (S.I 215-1)
Constitution of the Republic of Uganda 1995 art.28(1)

Cases cited (4)

Hayward v Hayward [1961] 1 All ER 236
Jones v National Coal Board [1957] 2 All ER 155
Yuill v Yuill [1945] 1 All ER 183
Fatehali Manji v The Republic [1966] EA 343

Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.