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Home > Judgments > 2011 archive

Lukandwa v Birungi [2011] EWCA Civ 1520

Judgment on an appeal brought in the course of proceedings for nullity.

The parties married in 2005 and had two children. The issue in the nullity proceedings was whether the wife had a valid and undissolved marriage, which the husband alleged had taken place in Uganda in 1999. The husband's nullity petition was rejected at first instance, the Recorder finding that no such marriage had occurred.

The appeal centred around documents which the husband claimed were copies of the wife's marriage certificate from the 1999 union. Prior to the initial trial, the husband had produced photocopies of the purported marriage certificate, and then at trial had provided to the judge a document which purported not only to be a certified copy of the marriage certificate, but also purported to have been authenticated by the Ugandan Consular Office. The Recorder concluded that the document was "probably a forgery", and gave no weight to it in reaching his conclusion.

McFarlane LJ gave the lead judgment of the court. His Lordship concluded that the Recorder had erred in determining the document to be a forgery on the evidence available to him; rather, there was a rebuttable presumption that the document was valid, and it was for the wife to challenge it as she saw fit. The appeal was therefore allowed.

Summary by Stephen Jarmain, barrister, 1 Garden Court Family Law Chambers


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Case No: B4/2011/0179
Neutral Citation Number: [2011] EWCA Civ 1520
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRADFORD COUNTY COURT
(MR RECORDER HILL)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17 November 2011

Before:

LORD JUSTICE THORPE
LORD JUSTSICE PITCHFORD
LORD JUSTICE MCFARLANE

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Between:

RICHARD LUKANDWA 
Appellant

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JEMIMAH BIRUNGI 
Respondent

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(DAR Transcript of
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Mr Jafar (instructed by Direct Access) appeared on behalf of the Appellant.

Miss Geddes (instructed by McManus Seddon) appeared on behalf of the Respondent.


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Judgment
 
Lord Justice McFarlane:
1. This is an appeal brought by a husband, Dr Richard Lukandwa, in the course of proceedings for nullity against his wife, as she is currently under English law, Ms Jemima Birungi.  The case had a substantial history in the Bradford County Court in relation to an earlier divorce petition issued by the husband petitioner but, upon him becoming aware of the suggestion that his wife had undergone a form of marriage in her home country of Uganda before he married her, he stayed the divorce process and issued the current petition for nullity.

2. The marriage in this country took place between the husband and wife (as I shall call them) on 14 February 2005.  The marriage continued and as a result of the marriage two children were subsequently born.  The issue, however, before this court and as it was before Mr Recorder Hill (who conducted a trial of the nullity petition on 5 January 2011 in Bradford County Court) was whether or not the wife had undertaken a valid marriage in Uganda on 16 July 1999 to a man referred to as Mr Kizito.  At the hearing before the learned Recorder the petitioner husband acted in person.  It should be recorded that the petitioner is a man clearly of intellect and professional acumen.  He is a medical practitioner and he presented a very thoroughly argued and carefully word processed case to the judge, backed up by a range of evidential material both in the form of affidavits and other documents and, as it turned out, via oral evidence over a video link by witnesses in Uganda. 

3. The case, in a nutshell, for the husband rested inevitably upon the evidence he had been able to collect at arm's length because, of course, he was not a witness to or a party to or in any way a possessor of direct knowledge about what did or did not take place in Uganda in or around 1999.  What he did have were two primary sources of evidence.  The first was the affidavit evidence that I have described and in particular, as it turned out over the video link, oral evidence from a local Imam, Sheikh Mbogo, who had purported to conduct a form of marriage between the wife and Mr Kizito.  The husband also had  a one-page document headed "Certificate of Marriage" dated 16 July 1999 which purported to relate to the alleged marriage. 

4. In the lead up to the hearing before the Recorder that document had been produced as a photocopied exhibit to various affidavits filed by the husband.  The original of the document was apparently never available to the husband and obviously not to the court in the course of evidence.  In the run up to the hearing and at the time that the paperwork will have been seen by the wife and her lawyers prior to the hearing, the nearest to authentication that that documentation came was a handwritten endorsement at the top right hand corner certifying that the document was a true copy of "the original".  That is signed by a registrar of the Sharia Muslim Council of Uganda and dated 12 October 2009.  That endorsement was backed up by a letter or formal certification headed "To whom it may concern", apparently signed by the same individual who has a very distinctive signature and who gives his name as Sheikh Twaibu Ali Mpanso.  That letter is also dated 12 October 2009.  That letter attributes a certificate number to the much photocopied document of 208, but the document itself, where the space would normally be for the number is, certainly on the copies we have seen in the bundle, unable to be deciphered. 

5. The wife's case was that she knew Mr Kizito and she had a relationship with him during the year following the date of the alleged marriage.  She became pregnant by him and towards the end of 2000, shortly prior to the Muslim festival of Ramadan, Mr Kizito had wished for the Sheikh to conduct some form of religious ceremony which, in some way, gave an endorsement -- or, to use the word used by the Recorder, a "blessing" -- to the state of affairs that was represented by their relationship and her state of pregnancy.  However, she said, she had no intention to marry Mr Kizito and the ceremony that was undertaken was not a marriage and she did not accept the authenticity of the certificate which of course is dated the previous year, July 1999. 

6. For the purposes of this judgment given to determine the appeal today it is not necessary for me to go into more detail as to the extensive factual evidence that the judge heard or indeed the conclusions to which he came upon the internal detail of that material.  To summarise the conclusion of the judge's decision, he noted all of the evidence that I have just summarised.  He discounted the validity of the Sheikh's evidence; he seems to have formed a favourable view of the credibility of the wife.  He found as a fact that she did not intend to undertake a ceremony of marriage at any stage in this period and, crucially, he went on to find at paragraph 24 of his judgment that the certificate was of no evidential value in these terms.  At paragraph 24 he said this:

"As for the certificate, this is not a document which proves itself.  It is a copy of something but of itself it is insufficient to establish that there was a marriage on 16 July 1999.  At the very least the court would need to see the original of which this is a photocopy.  This poor quality photocopy does not establish a marriage between this Respondent and Mr Haji Kizito.  Indeed, it is the Respondent's case that the document is a forgery.  Although it has been certified as a true copy, it seems probable that it is merely a copy of a forged document.  Certainly, it is not adequate to prove a marriage in an English court."

7. In terms the learned Recorder went on to find that the document was probably a forgery and he expressed himself to be satisfied that there was no ceremony of marriage in Uganda on 16 July 1999.

8. The parties before this appeal, both represented by counsel -- Miss Geddes, who acted for the wife before the Recorder, and Mr Jafar, who now acts on behalf of the husband -- have focused on one single point.  That course of action was determined by the fact that Mr Jafar identified the point I am about to describe as a preliminary point and this court considered it had enough validity to require Ms Geddes to address it without us hearing from either counsel as to the ordinary -- if I can call them that -- criticisms and benefits for each side that they wish to draw attention to in the learned Recorder's judgment. 

9. The point raised on behalf of the husband is this:  in distinction to the photocopies of the purported marriage certificate that had been available prior to the hearing, the husband handed to the Recorder a document which contained three additional certifications on its face.  The document handed in, bearing those additions, was not itself a photocopy of these additional stamps and words but a top copy with the different stamps appearing, as we can now see looking at it ourselves, in different colours.  The stamps were in order:  first of all the authentication, again by a different registrar at the Sharia Council, certifying that the document was a true copy of the original and that is dated 17 December 2010.  Below that in a printed form, no doubt from some form of template, the following words appear, "Certified true copy: [then there is a gap] Assistant Registrar General of Marriages" and in the middle of the gap at something of an angle is another stamp with the name Juliette Nagawa Luggya and then a handwritten signature and a date which is again 17 December 2010.  The final stamp is dated 30 December 2010 and purports to be that of the Consular Office of the Ugandan High Commission in London.  Next to that stamp, indeed overwriting it in places, are the following words, "This is to confirm that this copy of Certificate of Marriage was authenticated by the Assistant Registrar General of Marriages" and that is apparently signed by someone at the Consulate. 

10. Miss Geddes tells the court that that document was produced for the first time either at the beginning of or even during the hearing before the Recorder.  She, for her part, had prepared the case for the wife, as well she might, by looking at the detailed entries on the photocopied certificate and pointing to areas of vagueness or downright illegibility and forwarding a case which sought to highlight the unsatisfactory nature of that document.  Plainly from his conclusion the learned Recorder was on board, as it were, with many of those points. 

11. Mr Jafar's argument today is that the hearing before the Recorder proceeded on a legally impermissible basis.  He submits that the question of whether or not any celebration of marriage taking place in Uganda was or was not valid is a matter for Ugandan law and the Ugandan authorities.  It determines the status of two individuals under Ugandan law and where, as now here, there is a certificate which is authenticated by the Muslim Council and then separately by the authorities of the Ugandan State through the stamp of the Assistant Registrar and subsequently the confirmation as to the authenticity of that stamp by the Consular office here in London, the document raises itself above a mere photocopy of an earlier certificate to one which is an authorised declaration by the State as to the fact that a marriage in the terms of the information recorded on the form took place on 16 July 1999.

12. In expressing my description of Mr Jafar's point I wish to make it clear that certainly for my part today in hearing this appeal I have not come to a concluded view that his submission is entirely and thoroughly well-founded.  It might well be but, just as the Recorder was not, we have not been afforded submissions and consideration of the principles of private international law, any relevant case law or, indeed, any very detailed consideration of the registration arrangements in Uganda.  We note that there is a civil statute in Uganda, the Marriage and Divorce of Mohammedans Act 1906, which seems to establish a publicly examinable register of marriages which suggests that there may be a document in a different form to this one which might well answer the very question which is at the heart of this case.  There may well be other matters -- matters of law and evidence -- which the court would need to consider.  So in allowing this appeal which I, for my part, would do, I am in no way expressing a concluded view upon the ultimate validity of this document.  Mr Jafar does not, however,  need to go that far in order to succeed before us today.  His submission is that the Recorder failed to appreciate the significance of  the production of a State authenticated certificate -- which this photocopy had, by 5 January become -- and this led the Recorder into error.

13.  In the course of submissions we have given the lay label of "trump card" to this document.  As I say, whether or not it was, it was a matter for the county court to evaluate.  However, the Recorder simply did not engage in that process.  He involved himself in looking at the various points designed on behalf of the wife to undermine the sub-detail in relation to the material within the form without standing back and looking at it as an instrument in its own right with the validity which may attach to it as a result of the State authentication apparently given by the recent stamps and signatures.  In my view that was an erroneous course for the Recorder to take. 

14. Albeit given the fact that the husband was in person and the case had been set up on a different basis, it is understandable that the progress of the proceedings moved forward as they did,  it would in my view be a heavy thing for a court at county court level in the jurisdiction of England and Wales, as my Lord, Lord Justice Thorpe, said in the course of submissions, to declare a document which has been authenticated by various organisations in the Ugandan State as "a forgery".

15. It therefore seems to me that at a very preliminary stage the process set off in the wrong direction, and on the wrong basis before the Recorder in Bradford in January.  The question of the validity of this document should have been at the forefront of the court's mind, not in terms of the detail within it but as a document in itself.  There should have been, in my view, a presumption in favour of both the validity of the document and therefore the validity of the information that it authenticated, namely the fact that a marriage between the wife and Mr Kizito had taken place on 16 July 1999.  If the wife wished to challenge that then the ball was in her court to do so.  She may now go about that in investigating further in Uganda or making representations there.  She may well now seek to do so by arguing matters of private international law.  That should have been the starting point; it was not.  The Recorder was therefore in error and I would allow the appeal.

Lord Justice Pitchford:
16. I agree.

Lord Justice Thorpe:
17. I also agree.

Order:  Application granted.