Machumilane v. Bushambali (PC) Civ. App. 25-M-70; 22/4/70; Seaton J.

Machumilane v. Bushambali (PC) Civ. App. 25-M-70; 22/4/70; Seaton J.

The appellant alleged that he married the respondent’s daughter under the Marriage Ordinance, Cap. 109 according to Christian rites. That the marriage was Christian has been challenged by the respondent who claims that the marriage was contracted under customary law. The appellant however produced the marriage certificate to support his version of the story. It was accepted as a fact that the appellant and his wife, the respondent’s daughter, lived together as husband and wife for about 29 years. There is no issue of the marriage. Sometime in October, 1968 the respondent’s daughter parted company with the appellant, allegedly because of the latter’s cruelty. Since then the wife has continued to stay apart from the appellant in spite of his repeated requests that she return. In the result, the appellant sued the respondent for the “recovery” of his wife. The issues were: - (a) was the marriage between the parties established and if so, what type of marriage was it? (b) Had the primary court jurisdiction to entertain such a suit? (c) Could it be said that the respondent was a proper party to sue?

            Held: (1) “Both courts below found that the appellant had married the defendant’s daughter according to Christian rites and the appellant did produce a marriage certificate to support his contention. The respondent sought to prove that the marriage was made under customary law because he gave Shs. 40/- as dowry but it seems he gave this to the priest and the money was really paid for marriage fees. In the absence of express evidence of the customary rites that were performed and in the absence of any explanation as to why the marriage certificate produced in court by the appellant should not be believed, I see no reason why I should not abide by the findings of both courts below. In the result, I am satisfied that the marriage was a Christian marriage under the Marriage Ordinance, Cap. 109.” (However) ……. Can it be said that the primary court had jurisdiction to hear it and make any determination on it? The salient characteristics of an African marriage in its traditional form are that polygamy is allowed, that there is payment of bride-price and that a customary marriage is usually capable of being dissolved by an extra-judicial procedure and without the limitations imposed by a rigidly defined set of grounds of divorce: [Arthur Phillips: Journal of African Law, 1959, Vol. 3] A different marriage is provided under the Marriage Ordinance, Cap. 109. The Ordinance marriage is strictly monogamous, a union for life of one man and one woman to the exclusion of all others. This necessarily follows the definition of marriage in the celebrated case of Hyde v. Hyde (1866) L.R.I.P.D. 130 at p. 133 per Lord Penzance. For reasons that must be discovered from the minds of the legislators, this marriage can only be dissolved by a procedure under Cap. 364. This Ordinance,

However, leaves the courts to provide other forms of matrimonial relief such as judicial separation and restitution of conjugal rights. Section 3 of the Matrimonial Causes Act Cap. 364 provides that:- (j)urisdiction under this Ordinance shall, subject to the provisions of this Ordinance or any rules made under this Ordinance, be exercised by the Court in accordance with the law applied in matrimonial proceedings in the High Court of Justice in England.’ The interpretation section under Cap. 364, that is section 2, defines ‘Court’ to mean the ‘High Court’ provided that in respect of matrimonial causes between Africans it means a Resident Magistrate’s Court. Accordingly, only the High Court and a Court of Resident Magistrate have been seized with jurisdiction to offer remedies in case arising out of the Marriage Ordinance. (3) “The Magistrate’s Court Act, Cap. 537 lay down the jurisdiction of primary courts. Under section 14 of this Act, a primary court has jurisdiction in proceedings (a) of a civil nature where the law applicable is customary law or Islamic law including those for the recovery of civil debts, rent or interest due to the Republic, Government, etc. it is obvious that as the Christian marriage is not governed by customary or Islamic law but by the general law, the primary court cannot entertain a suit involving such marriage. In any case, as stated above, the Matrimonial Causes act, Cap. 364, which govern Christian Marriages, do not include a primary court as a court competent to offer relief in Christian marriages. There is yet no written law which confers jurisdiction on the primary courts to try case in which a marriage under Cap. 109 is in issue. For the above reasons, I am satisfied that the primary court had no jurisdiction to entertain this suit.” (4) “It becomes unnecessary for this Court to look into whether the respondent was the proper party to sue. However, for avoidance of any doubt, it must be made clear that the procedure by which a husband sues his father –in – law for restitution of conjugal rights when in fact such conjugal rights are in respect of the wife is certainly wrong. The procedure open to the appellant was to petition against the wife in a Resident Magistrate’s Court. Thus the respondent was wrongly made a defendant in the courts below.” (5) …… Through a competent court can pronounce a decree of restitution of conjugal rights (which rights are unknown to customary law) it cannot force the wife to go back to the husband. In the result, his last hope may be to institute proceedings for divorce or judicial separation.” (6) Appeal dismissed.