Wakilii

Daws v Mackenzie Daws (Divorce Cause No. 12 of 1954)

East African Court of Appeal · [1954] EACA 125 · 1954 Petition Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Undefended divorce petition on grounds of adultery
Decision
Petition for divorce dismissed; adultery not proved to the satisfaction of the court

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the statutory standard of proof under section 9 of the Matrimonial Causes Ordinance requires the court to be satisfied on the evidence that adultery has been proved, applying the test of the guarded discretion of a reasonable and just man. The proof must be strict, satisfactory and conclusive, though not necessarily to the criminal standard of beyond reasonable doubt. Where a respondent fails to appear, the court may consider this circumstance but need not take it strongly against the party as proof of guilt, particularly where no prima facie case has been established. Petition dismissed as adultery not proved to the court's satisfaction.

Outcome

Petition for divorce dismissed; adultery not proved to the satisfaction of the court

Facts

The petitioner sought divorce on grounds of adultery, alleging his wife lived with a co-respondent at the Princess Hotel for 18 days as man and wife. The respondent was served but did not enter an appearance. The petitioner obtained leave to bring the petition within the three-year limitation on grounds of exceptional hardship caused by the respondent's alleged drinking, scandalous conduct, and violence. The petitioner did not personally witness any adultery. The evidence consisted of testimony from the hotel manager who produced a hotel register showing an entry for 'Mr. and Mrs. E. E. Johnson' and identified the respondent from a photograph shown to him. The register appeared incomplete and suspicious, with unexplained gaps and the relevant entry uniquely printed rather than handwritten. No corroboration of the manager's identification was provided, and the petitioner gave no details about when or how the photograph was shown to the manager.

Issues

  1. What is the standard of proof required to establish adultery in an undefended divorce petition under the Matrimonial Causes Ordinance?
  2. To what extent should the failure of a respondent to appear and give evidence in disproof of adultery be taken as probative of guilt?
  3. Whether the petitioner proved adultery on the evidence adduced, including hotel register entries and photographic identification?

Orders

  • Petition dismissed.

Rules and key headnotes

Divorce — Standard of Proof — Statutory Test
Section 9 of the Matrimonial Causes Ordinance enacts a statutory standard of proof requiring the court to be satisfied on the evidence that the case for the petitioner has been proved, which is distinct from the criminal standard of proof beyond reasonable doubt.
Divorce — Adultery — Standard of Proof
An acceptable standard of proof for adultery in divorce proceedings is that of the guarded discretion of a reasonable and just man leading him to the conclusion that adultery was proved. The proof must be strict, satisfactory and conclusive, requiring more than a probability, but need not reach the criminal standard of leaving only a remote possibility in favour of the act not being committed.
Divorce — Civil Nature of Proceedings
A suit for divorce is a civil and not a criminal proceeding. The standards and rules of criminal procedure do not automatically apply to divorce suits, and the burden of proof, while strict, is not necessarily the same extraordinary weight required in criminal cases.
Failure to Give Evidence — Matrimonial Proceedings
Where a respondent in a divorce petition does not appear to give evidence in disproof of adultery, the court is entitled to take into account all the circumstances connected with the failure to give evidence, but need not take the failure strongly against the party as proof of guilt. The weight to be attached depends on whether a prima facie case has been established and the particular circumstances of the case.
Documentary Evidence — Hotel Registers — Suspicious Documents
Where a hotel register produced as evidence contains unexplained gaps, isolated entries in different format from other entries, and lacks corroboration, the court is entitled to entertain grave doubts as to its authenticity and may find it worthless as evidence.
Identification — Photographic Evidence — Burden of Proof
Where identification of a party depends entirely on a hotel manager recognizing a person from a photograph, and the standard of proof requires the court to be satisfied, the petitioner must provide sufficient detail about when and how the photograph was shown, whether it was a good likeness, and the circumstances of identification. Failure to provide such details may result in the court not being satisfied as to identification.

Legislation cited (6)

  • Matrimonial Causes Ordinance (Cap. 145) s.9
  • Matrimonial Causes Ordinance (Cap. 145) s.3
  • Matrimonial Causes Ordinance (Cap. 145) s.34
  • Matrimonial Causes Act 1937 s.4
  • Supreme Court of Judicature (Consolidation) Act 1925 s.178
  • Matrimonial Causes Act 1950 s.32(3)

Cases cited (14)

  • Ginesi v Ginesi [1948] P 179
  • Churchman v Churchman [1945] P 44
  • Fairman v Fairman [1949] P 341
  • Davis v Davis [1950] P 125 (CA)
  • Gower v Gower [1950] 1 All ER 804 (CA)
  • Poyser v Poyser [1952] 2 All ER 949 (CA)
  • Wright v Wright (1948) 77 CLR 191
  • Miller v Minister of Pensions [1947] 63 TLR 474
  • Mordaunt v Moncrieffe (1874) LR 2 Sc & Div 374 (HL)
  • Loveden v Loveden (1810) 2 Hag Con 1
  • Rix v Rix (1777) 3 Hag Ecc 74
  • Williams v Williams (1798) 1 Hag Con 299
  • Ross v Ellison or Ross [1930] AC 1 (HL)
  • Spring v Spring and Jiggins [1947] 1 All ER 886

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Daws v Mackenzie Daws (Divorce Cause No. 12 of 1954) [1954] EACA 125 (1 January 1954)
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.