Case in focus: Alfred Tako Kenyi Odubusa v Apika Jacqueline High Court Divorce Cause No. 94 of 2022
Decided by: Kitariisibwa-Katunguka, J
Court: High Court of Uganda (Family Division)
Date of decision: 6th June, 2024
Brief Facts
The Petitioner filed a petition for dissolution of marriage in the High Court of Uganda.
Before hearing the main petition, the Respondent raised a preliminary objection that the petition offended Section 2(a) of the Divorce Act, Cap. 144 on the ground that the Petitioner was not domiciled in Uganda at the time of filing.
The objection was based on the Petitioner’s pleadings describing him as a national and resident of Juba, South Sudan.
The Petitioner claimed that though he had property in South Sudan, he was domiciled in Uganda by choice where he rented his matrimonial home and had some other properties.
Issue
- Whether the Petitioner was domiciled in Uganda at the time of presenting the divorce petition as required by Section 1(a) of the Divorce Act.
Ruling
- Definition of Domicile
Court relied on the case of Robinah Erina Kagaya Kiyingi V Doctor Aggrey Kiyingi High Court Civil Appeal No. 41 of 2004, to define the word domicile as the country in which a person is or presumed to be permanently resident, the place of a person’s permanent home.
Further, domicile is defined as ‘The place at which a person has been physically present and that the person regards as home; a person’s true, fixed, principal, and permanent home, to which that person intends to return and remain even though currently residing elsewhere.’ per the 11th Edition of the Black’s Law Dictionary at page 614.‘
(At page 3 of the Ruling)
- Elements of proving Domicile
The court ruled that domicile requires two essential elements. Physical residence in a country and an intention to reside there permanently or indefinitely.
(Citing Nygh on Conflict of Laws in Australia 7th edition (Lexis Nexis, Australia, 2002) [13.18])
(At page 4 of the Ruling)
- Admission of domicile in the Petitioner’s Pleadings
The Petitioner’s own pleadings stated that he was a national and resident of South Sudan, which contradicted his claim of domicile in Uganda.
(At page 4 & 5 of the Ruling)
- Failure to discharge burden of proving intention to reside permanently
The Petitioner failed to prove an intention to reside indefinitely in Uganda at the time of filing the petition.
(At page 4 & 5 of the Ruling)
- Insufficiency of property ownership and past residence to prove domicile
Ownership of property, past residence, or temporary presence in Uganda was insufficient to establish domicile.
(At page 5 of the Ruling)
- Domicile as a jurisdictional prerequisite in divorce proceedings
Since domicile is a jurisdictional prerequisite, the failure to prove domicile rendered the petition incompetent.
Accordingly, the preliminary objection was upheld, and the divorce petition was dismissed for want of domicile in Uganda.
The court made no orders as to costs.
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Also, read the full judgment at ULII Alfred Tako Kenyi Odubusa v Apika Jacqueline High Court Divorce Cause No. 94 of 2022
