Santhumayor v Santhumayor Ferris and another
[1959] 1 EA 204 (HCU)
Division: HM High Court for Uganda at Kampala
Date of judgment: 4 February 1959
Case Number: 5/1958
Before: Sir Audley McKisack CJ
Sourced by: LawAfrica
[1] Divorce – Domicil – Abandonment of domicil of origin – Acquiring fresh domicil – Burden of proof – Evidence – Declaration of intention to reside permanently in Uganda.
Editor’s Summary
The petitioner, a citizen of India, came to Uganda in 1954, on a temporary employment pass. He was employed as a clerk with a bank in Kampala, his contract being for six years expiring in 1962. In 1957 the petitioner married the respondent who had lived all her life in India until she came to Uganda. In 1958 he petitioned for a divorce whereupon the respondent applied to the court to dismiss the petition on the ground that the petitioner was not domiciled in Uganda. The court heard evidence on this issue from which it was established that the petitioner had all his family ties in India and had taken no positive step which would point to an intention to remain in Uganda indefinitely, but he had declared his intention to remain in Uganda permanently to two individuals who gave evidence to that effect.
Held – the burden of proving a change from the domicil of origin to a domicil of choice is not light and taking all the factors into consideration the petitioner had failed to prove that he had acquired a Uganda domicil with that “perfect clearness” which English cases prescribe as necessary before the court can accept that the domicil of origin has been lost.
Petition dismissed.
Cases referred to in judgment
(1) Zanelli v. Zanelli (1948), 64 T.L.R. 556.
(2) Boldrini v. Boldrini, [1931] All E.R. Rep. 708; [1932] P. 9.
(3) Cruh v. Cruh, [1945] 2 All E.R. 545.
(4) Will v. Will, Uganda High Court Divorce Cause No. 3 of 1954 (unreported).
George Bernard Gordon v Martha Nyamate Gordon [1965] 1 EA 87 (HCT)
Division: High Court of Tanzania at Dar-Es-Salaam
Date of judgment: 7 November 1964
Case Number: 4/1964
Before: Reide J
Sourced by: LawAfrica
[1] Divorce – Domicil – Domicil of choice – Animus manendi – Petitioner born in England – Petitioner employed by Government of Tanganyika on pensionable terms – Possibility of employment being terminated – Petitioner ordinarily resident in Tanganyika for 18 years – Petitioner’s assets in Tanganyika including a building – Petitioner married to an African lady – Intention to stay in Tanganyika so long as employment available – Intention to return to England ultimately – Whether petitioner had acquired domicil of choice.
Editor’s Summary
The petitioner in a divorce suit was born in England and in 1946 at the age of 22 came to Tanganyika as an Assistant District Officer appointed by the British Colonial Office on permanent and pensionable terms. In 1952 the petitioner married the respondent, an African, and had most of his assets in Tanganyika including a building. The petitioner averred that he had retained his domicil of origin and the respondent averred that the petitioner had acquired a domicil of choice in Tanganyika. At the hearing the petitioner stated that if his employment was terminated he would try to find other employment in Tanganyika or failing that, in East Africa, and that when he could not any longer find employment he would return to England. The petitioner also stated that he had never at any time formed an intention of remaining in Tanganyika for the rest of his life, but had always meant to return ultimately to England to end his days there.
Held – although the petitioner had been resident in Tanganyika for 18 years and had most of his interests and ties in Tanganyika and could be said to have “joined a new society” this fell far short of establishing or even of raising a presumption that he had abandoned his domicil of origin, and that he was domiciled in England.
Aslanidis v Aslanidis and Schumacher [1967] 1 EA 10 (HCU)
Division: High Court of Uganda at Kampala
Date of judgment: 12 December 1966
Case Number: 7/1966
Before: Russell J
Sourced by: LawAfrica
[1] Divorce – Domicile – Domicile of choice in Uganda – When acquired.
[2] Domicil – Divorce – Domicil of choice in Uganda – When acquired.
Editor’s Summary
On a petition by a wife based on the respondent husband’s domicil in Uganda it was proved (partly by the evidence of the respondent himself) that he came to East Africa in 1946 with a Greek domicil of origin, that he moved from Kenya to Uganda in 1957 and had resided there continuously since (apart from occasional visits abroad) and that he was the sole proprietor of a business in Uganda. The respondent also testified that he intended to stay indefinitely in Uganda and to make his permanent home there.
Held –the respondent (and therefore the petitioner) had acquired a domicil of choice in Uganda.
Decree nisi granted.
Cases referred to in judgment:
(1) Frederick King v. Elsie May Rigby King and Thomas Smith (1940), 7 E.A.C.A. 1.
(2) Thornhill v. Islay Thornhill and Another, [1965] E.A. 268.
Field v Field [1964] 1 EA 43 (CAN)
Division: Court of Appeal at Nairobi
Date of judgment: 4 February 1964
Case Number: 28/1963
Before: Sir Trevor Gould Ag P, Crawshaw Ag VP and Crabbe JA
Sourced by: LawAfrica
Appeal from: The Supreme Court of Kenya – Kennedy, J.
[1] Divorce – Domicil – Petition by wife – Abandonment of domicil of origin by husband – Acquisition of domicil of choice – Allegation by wife that husband domiciled in Kenya disputed by husband – Standard of proof required – Extent of onus on wife – Husband a tenant farmer – Declaration of intention not to return to England – No evidence given by husband.
Editor’s Summary
The appellant petitioned for dissolution of her marriage with the respondent alleging that the matrimonial
domicil was Kenya, and gave evidence that the respondent was born in England and his domicil of origin was in England; that in 1959 the respondent sold all his assets including his house in England; that he came to Kenya in June 1959 and became a tenant farmer under the Settlement Board; that the respondent had declared many times his intention not to return to England in any circumstances and his desire to stay in Kenya. The question of domicil was put in issue by the respondent in his answer and by agreement the issue was tried separately. After the appellant had given evidence counsel for the respondent stated that he was not calling any evidence. The trial judge held that the respondent had abandoned his domicil of origin but he was not satisfied that the appellant had proved with “perfect clearness” that she had a Kenya domicil. On appeal it was argued that the trial judge had required too high a standard of proof and that he had erred in his appreciation of the evidence.
Held – the judge had erred in his evaluation of the evidence and the change of domicil had, in all the circumstances of the case, been established with clarity.
Appeal allowed.
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