BRUNO KIWUWA Vs. IVAN SERUNKUMA AND JULIET NAMAZZI THE HIGH COURT AT KAMPALA (KASULE, J.) CIVIL SUIT No. 52 of 2006 MAY 5, 2007Download the case here in pdfDomestic Relations-Marriage-Marriage between parties from same clanBaganda custom-Whether parties can lawfully contract marriage under MarriageAct, Cap 251.Domestic Relations-Marriage-Marriage between parties from same clanBaganda custom-Whether parties can lawfully contract marriage under laws ofUganda.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-requisiteto marriage under Marriage Act, Cap 251 and Marriage of Africans Act, Cap 253. Domestic Relations-Marriage-Customary Marriages-Custom-Definition ofcustom-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 andsecond defendants on grounds that both defendants, like the plaintiff, being Bagandaby tribe, belonging to the same clan of "Ndiga" that is to say, sheep, could notlawfully by reason of an obtaining custom, contract such a marriage. According to theplaintiff such marriage is abominable, immoral, unethical, illegal and uncustomary. Theissues that came up for consideration inter alia were; whether the defendants beingBaganda by tribe, and as such members of the same clan of "Ndiga", could marryunder the Marriage Act, Cap 251, or any other laws of Uganda and whether failure toconduct a formal introduction ceremony and obtaining consent from the parents is apre-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 theCourt to take judicial notice of the same, it has to be proved in evidence. In thiscase, it was admitted that as Baganda by tribe and being of the same clan, a customexists and applies to both defendants that, a Muganda man and a Muganda womanof 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. Inorder to be recognized as customary law, it must be reasonable in nature and itmust have been followed continuously, and as ifit were a right, since the beginningof legal memory. (iii) Customary law must be in conformity with the Constitution; the supreme lawin Uganda. Any custom inconsistent with the Constitution is void to the extent ofthe inconsistency. (iv) The Marriage Act, Cap 251, recognizes the validity of a customary marriagebecause at some point one can turn a customary marriage into a civil marriage andone cannot contract a customary marriage if married under the Marriage Act, Cap251. The Marriage Act therefore takes cognisance of the operation ofthe marriagecustomary laws. The Act does not exclude the observance of a customary law orpractice by those intending to contract the type of marriage the Marriage Actallows. In this case, the custom in issue constituted lawful cause under the MarriageAct to successfully challenge the marriage of both defendants under the MarriageAct, Cap 251. (v) Since the advent of the colonial era and Christianity (and Islam), nativeUgandans kept to their customs in marriage, it became necessary for the religionsto give due recognition to some of these customs in the celebration of marriage.Thus marriage celebrated under the Marriage Act becameacombination of bothwhat is religious and what is customary, while remaining essentially a church or acivil marriage and not a customary one. The Court takes judicial notice of thisnotorious fact of the fusion of what is religious and what is customary as obtainingin Uganda in celebrating marriages under the Marriage Act. The customary lawdid not allow them to marry both being members of the same clan. (vi) The Marriage Act, Cap 251 provides for challenging an intended marriageunder the Act, on many other grounds, independent of the prohibited degrees ofconsanguinity. It does not follow therefore that once a couple satisfies the test ofprohibited degrees of consanguinity, their intended marriage cannot be challengedon other grounds, such as violating the customs of clan mates not marrying eachother. (vii) There is no reason why the custom in issue can apply to a customary marriageand yet cannot apply to a marriage under the Marriage Act when, whether underthe Marriage Act or the Customary Marriage (Registration) Act, the defendantsremain of the same tribe and the same clan. The custom ought to apply in bothcases. In both cases its violation makes the marriage void. (viii) A custom is repugnant to justice and morality if it causes aversion anddisgust 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 andgood conscience. (ix) It is a custom of the Baganda as a tribe that before a marriage is contracted, itis preceded by an introduction ceremony.Judgment entered for plaintiff. Legislation considered: Customary Marriage (Registration) Act, Cap 248, Section 11 (d) and second scheduleEvidence Act, Section 101Hindu Marriage and Divorce Act, Cap 250, Section 1 (a)Judicature Act, Cap 13, Sections 14 and 15Judicature Act, No. 11 of 1967, Section 3 (2) b (ii)Magistrates Courts Act, Cap 16, Sections 1 (a), 10Marriage and Divorce of Mohammedans, Cap 252Marriages Act, Cap 251, Sections 10 (c), 12, 13, 21, 29,36, 49, 50Marriage of Africans Act, Cap 253Penal Code Act, Cap 120, Section 149 (1)The Constitution of the Republic of Uganda, 1995, Articles 2, 31, 32 (2), 37, 43, 246Cited cases: Kinami Vs Gikanga [1965] EA 735Magwi Kimito Vs Gebeno Werema [1985] TLR 132Marko Kajubi Vs Kulanima Kabali Ext A34 1944RVs Amkeya [1917] EALukwago Vs Kizza and Another [1999] 2 EA 142Virginia Edith Wamboi Otieno Vs Joash Ochieng ongo and Omolo Sirange [1982]KAR 1049Other legal materials referred to:The Application of Customary Law in Uganda: By Professor Joseph M.N. Kakooza: Inthe Uganda Living Law Journal of the Uganda Law Reform Commission: Volume. 1,No. 1 of 2003Dictionary of Law, 4th Edition, Oxford University press by Elizabeth A. Martin, Page 122JUDGMENT OF COURT The Plaintiff instituted this suit to prevent celebration of the marriage of the first andsecond Defendants on the ground that both defendants, like the Plaintiff, being Bagandaby tribe, belonging to the same clan of "Ndiga" i.e. Sheep, cannot lawfully by reason ofan 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 ofAgriculture (Economics) employed by International Food Policy Research Institute,Kampala.The Plaintiff asserts to be the biological father of the second DefendantIt is an admitted fact that both Defendants planned to celebrate a marriage in HolyMatrimony 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 stayingthe intended marriage pending disposal of this suitBoth Defendants filed a joint written statement of defence. The second Defendantdenied the Plaintiff as her biological father. She however admitted that the Plaintiffcared and supported her from birth to completion of her university education. Sheclaimed, 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 secondDefendant 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 DefendantThe 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 thewritten law of prohibited degrees of consanguinity did not cover then.303540Further, both Defendants being 21 years and above, old, the consent ofthe Plaintiff totheir marriage was unnecessary. On 12th July 2006, before Court, the Plaintiff and the second defendant agreed, andsubsequently took a DNA test. The Report of the DNA test was filed in Court byconsent 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 Defendantwas a biological daughter of the Plaintiff. 2. The father of the first Defendant is Mr Samuel Kayigwa, a Muganda byTribe, 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 CatherineBinaisa. 7. The first Defendant's biological mother, Ms. Joyce Nsamba, and the secondDefendant's biological mother, Ms Nalongo Ndagire Catherine Binaisa, are notblood sisters. 8. Amongst the tribe of Baganda, a custom obtains that clan-mates i.e. a man anda 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 brideand 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 thesame "Ndiga” i.e. Sheep clan, can lawfully contract a marriage under the MarriageAct, Cap.251. (c) Whether the defendants being Baganda by tribe and being members of thesame "Ndiga"i.e. Sheep clan, can lawfully contract a marriage under the laws ofUganda. (d) Whether failure to conduct a formal introduction ceremony and obtainingconsent from the parents is a pre-requisite to contract a marriage under theprovisions 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 suitParties opted not to adduce any formal evidence by Witnesses. Reliance was on theadmitted 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 Actmay be halted for just cause, and that violating an established custom, such as the onein 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 Bagandaas a tribe as a constitutional right For the Defendants, it was contended that the custom in question do not apply totheir intended marriage which is under the Marriage Act, and not under the CustomaryMarriage (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 theCustomary 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 biologicalfather of the second DefendantThe second and third issues are to be considered together. The two are paraphrasedtogether 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 lawsof Uganda. It is settled that where customary law is not documented or so notorious for court totakejudicial 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, acustom exists and applies to both Defendants that a Muganda man and a Mugandawoman 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 byreason of this custom. "A Custom" is defined as. "A practice that has been followed in a particular locality in such circumstancesthat it is to be accepted as part of the law of that locality. In order to be recognizedas customary law, it must be reasonable in nature and it must have been followedcontinuously, 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.