Wakilii

Richard Irumba v Florence Irumba (Civil Appeal 45 of 1995)

Supreme Court · [1997] UGSC 31 · 1997 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from the High Court's appellate decision in a divorce matter originating in the Magistrate Grade I court
Decision
Appeal dismissed; order remitting the divorce cause to the original court to proceed with the trial confirmed

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Holding

The Supreme Court held that the reference in section 4(2) of the Divorce Act to the law applied in matrimonial proceedings in the High Court of Justice in England means the English law as it stood on 1 October 1904 when the Divorce Ordinance came into force, not English law as amended from time to time; words such as "for the time being" would have been needed to apply current law. Section 3(2) of the Judicature Act did not automatically apply the English Matrimonial Causes Act 1950, and any applied law operates only so far as the circumstances of Uganda permit under section 3(3). The appeal was nonetheless dismissed and the order remitting the cause to the trial court confirmed.

Facts

The parties married on 25 August 1990 at All Saints Cathedral, Kampala. On 22 February 1993, about two and a half years into the marriage, the wife (respondent) petitioned for divorce in the Magistrate Grade I court at Mengo on grounds of repeated adultery, cruelty and desertion. The husband (appellant) filed a cross-petition and raised a preliminary objection that the petition was premature, the marriage being less than three years old and the petition having been presented without the leave of the court. Counsel for the respondent argued that the three-year rule had been replaced in England by a one-year rule under the Matrimonial and Family Proceedings Act 1984. The Magistrate Grade I overruled the objection, and the High Court, on first appeal, upheld that ruling and remitted the cause for the divorce hearing to proceed. The husband appealed to the Supreme Court on the principal ground that the petition should have been dismissed as premature.

Issues

  1. Whether the law applied in matrimonial proceedings in Uganda under section 4(2) of the Divorce Act is the English law in force on 1 October 1904 when the Divorce Ordinance was enacted, or the English law as amended from time to time.
  2. Whether the one-year rule under the Matrimonial and Family Proceedings Act 1984 of England applies in Uganda, or the three-year rule under the Matrimonial Causes Act 1950.
  3. Whether the petition for divorce was premature for having been presented before three years of marriage without the leave of the court.

Orders

  • Appeal dismissed.
  • Order of the lower court remitting the case to the original court to proceed with the trial confirmed.
  • Respondent granted half the costs of the appeal.

Key headnotes

Family Law — Divorce Jurisdiction — Reception of English Matrimonial Law
The reference in section 4(2) of the Divorce Act to "the law applied in matrimonial proceedings in the High Court of Justice in England" means the English law in force on 1 October 1904 when the Divorce Ordinance was enacted, not the English law as amended from time to time.
Statutory Interpretation — Adoption of External Law by Reference — Absence of "for the time being"
Where a statute adopts an external body of law by reference without words such as "for the time being" or "applicable from time to time", the reference is to that law as it stood at the date the adopting enactment came into force, not as subsequently amended.
Statutory Interpretation — Applied Law — Subject to Circumstances of Uganda
Under section 3(3) of the Judicature Act 1967, English law applied in Uganda is in force only so far as the circumstances of Uganda and its peoples permit and subject to such qualifications as circumstances render necessary.
Statutory Interpretation — Judicature Act s.3(2) — Written Law in Force
Section 3(2) of the Judicature Act 1967 does not automatically apply the English Matrimonial Causes Act 1950 as a written law in force in Uganda.

Legislation cited (13)

  • Divorce Act s.4
  • Divorce Act s.4(2)
  • Divorce Ordinance 1904 s.4
  • Judicature Act 1967 s.3(2)
  • Judicature Act 1967 s.3(3)
  • Matrimonial Causes Act 1950 (England) s.2
  • Matrimonial and Family Proceedings Act 1984 (England)
  • Interpretation Decree 1976 s.9(1)
  • Interpretation Act (Cap. 16) s.3
  • Magistrates Act 1970 s.8
  • Uganda Order in Council 1902 s.15(1)
  • Uganda Order in Council 1902 s.20
  • Africa Order in Council article 13

Cases cited (3)

  • Hassanali Dedhar vs. the Special Commissioner and Acting Commissioner of Lands 1957 EA 104
  • Mohamed Abdulla vs. Khoja Juma Khamis (1909 - 1910) UPLR 83
  • A. D vs. G. D (1955) 28 KLR 210-212
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.