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Francis Xavier Jawee V Cleophas Kabajwara Jawee (Civil Appeal No. 0010 of 2005) [2012] UGHC 400 (20 June 2012)
- Citation
- [2012] UGHC 400
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- High Court of Uganda
- Panel
- Owiny-Dollo, J
- Case number
- Civil Appeal No. 0010 of 2005
- Language
- English
More details
- Court
- High Court of Uganda
- Panel
- Owiny-Dollo, J
- Case number
- Civil Appeal No. 0010 of 2005
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that although the respondent had provided evidence of adultery, cruelty, and desertion by the appellant, she had condoned the acts by continuing to have a sexual relationship with her husband after discovering his adultery. The court held that condonation of the matrimonial offence precluded the grant of a divorce decree. Furthermore, the respondent had persevered in the marriage despite the appellant's conduct, and the petition was brought after an unreasonable delay. The trial Magistrate erred in granting a decree nisi for divorce. Instead, the appropriate remedy was an order of judicial separation, as expressly prayed for in the alternative by the respondent. The court therefore set aside the decree nisi and substituted it with an order of judicial separation. No order as to costs was made due to the family nature of the dispute.
Court disposition
appeal_allowed_in_part
Orders
- The decree nisi for divorce granted by the trial Magistrate is set aside.
- An order of judicial separation is substituted in place of the decree nisi.
- There is no order as to costs in this court or the court below.
02
Material facts
Parties
Francis Xavier Jawee
AppellantCleophas Kabajwara Jaawe
Respondent03
Procedural history
Posture
Civil Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the evidence adduced proved adultery by the appellant.
- 02
Whether the alleged adultery, if proved, had been condoned and whether the petition was brought after unreasonable delay.
- 03
Whether there was sufficient evidence of desertion or cruelty to justify the grant of divorce.
Party arguments
- Applicant
- The appellant argued that the trial Magistrate erred in law and fact by finding that adultery was proved, that any such adultery had been condoned by the respondent, and that the petition was brought after unreasonable delay. The appellant also contended that there was insufficient evidence of desertion or cruelty to warrant a divorce decree.
- Respondent
- The respondent maintained that the appellant committed adultery, cruelty, and desertion, providing detailed evidence of these acts. The respondent argued that the trial Magistrate correctly found in her favor and that the decree nisi for divorce was properly granted.
05
Court’s reasoning
Legal principles
- 01
Family law principles; see also relevant Ugandan case law on condonation.
Condonation of matrimonial offences such as adultery bars a petitioner from relying on those acts as grounds for divorce.
- 02
Family law statutes and judicial precedents.
A decree nisi for divorce should not be granted where the petitioner has condoned the acts complained of or where there is unreasonable delay in bringing the petition.
- 03
Family law statutes and practice.
Judicial separation may be granted as an alternative remedy where divorce is not appropriate due to condonation or other factors.
06
Ratio, limits and disposition
Ratio decidendi
The court found that although the respondent had provided evidence of adultery, cruelty, and desertion by the appellant, she had condoned the acts by continuing to have a sexual relationship with her husband after discovering his adultery. The court held that condonation of the matrimonial offence precluded the grant of a divorce decree. Furthermore, the respondent had persevered in the marriage despite the appellant's conduct, and the petition was brought after an unreasonable delay. The trial Magistrate erred in granting a decree nisi for divorce. Instead, the appropriate remedy was an order of judicial separation, as expressly prayed for in the alternative by the respondent. The court therefore set aside the decree nisi and substituted it with an order of judicial separation. No order as to costs was made due to the family nature of the dispute.
Obiter and limits
- The perseverance of the respondent in the marriage despite the appellant's conduct was notable and influenced the court's view on condonation.
- Family matters require sensitivity, and the court will not ordinarily make orders as to costs in such disputes.
Court disposition
appeal_allowed_in_part
- The decree nisi for divorce granted by the trial Magistrate is set aside.
- An order of judicial separation is substituted in place of the decree nisi.
- There is no order as to costs in this court or the court below.
Source and reliance status
High Court of Uganda
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court of Uganda
Judgment
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA; AT FORT PORTAL
CIVIL APPEAL No. 0010 OF 2005
(Appeal from the judgment and decree of His Worship Karemani J. Karemera Magistrate Grade 1, in FPT Divorce Cause No. 0003 of 2000, dated the 17th of February, 2005)
FRANCIS XAVIER JAWEE ::::::::::::::::::::::::::::::::::::::::::: APPELLANT
*VERSUS*
CLEOPHAS KABAJWARA JAAWE:::::::::::::::::::::::::::: RESPONDENT
BEFORE: - THE HON. MR. JUSTICE ALFONSE CHIGAMOY OWINY – DOLLO
JUDGMENT
The Respondent herein had petitioned Court to have her marriage to the Appellant herein either dissolved or a judicial separation ordered, on grounds of adultery cruelty, and desertion. The learned trial Magistrate found for the Petitioner and allowed the petition; and granted a decree nisi in the divorce cause. It is against this decision that the Appellant as the aggrieved party has appealed; seeking this Court's order that the order granted by the Court be set aside. The grounds of appeal are that:–
- 1. The trial Magistrate erred in law and in fact when he held that the evidence adduced revealed adultery. - 2. The trial Magistrate erred in law in granting divorce on alleged adultery, if it had been proved, such adultery had been condoned and the petition had been brought after unreasonable delay. - 3. The trial Magistrate erred in law and in fact in holding that there was evidence of desertion or cruelty as to lead to divorce.
At the hearing of the petition, the Petitioner gave a litany of events to prove adultery, cruelty, and desertion by the Respondent (now Appellant). The Appellant who had attended Court during the examination in chief of the Petitioner, and had through his lawyer cross examined her, however defaulted in appearance when it was his time to testify; upon which the Court proceeded to deliver judgment in default. The learned trial Magistrate found for the Petitioner that adultery had been proved and proceeded to grant a decree nisi.
Ordinarily, all the grounds of the petition would have failed on the sole ground of the Petitioner's having condoned such acts. She continued to have sexual relationship with the husband even after she had effectively found him red handed in bed with another woman. She persevered for the entire period of her marriage with the husband's torturous deeds which are brought out in evidence and were never controverted. I think, the learned trial Magistrate hastened to issue a decree nisi when the Petitioner had expressly prayed alternatively for an order of judicial separation. In the event I set aside the order of the trial Magistrate and substitute therefore an order of judicial separation. Being a family matter there will be no order as to costs here and in the Court below.
Alfonse Chigamoy Owiny – Dollo
JUDGE
20 – 06 – 2012
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