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SCARR v. SCARR 1971 (2) BLR 44 (HC)
Citation: 1971 (2) BLR 44 (HC)
Court: High Court
Case No:
Judge: Rooney ACJ
Judgement Date: November 19, 1971
Counsel: Mr Richards Lyons for Plaintiff
Flynote
Husband and wife - domicile
Headnote
The Plaintiff who was born in the United Kingdom had come to Botswana in October, 1970 on a
five years contract of employment. Although his wife, the Defendant, had left Botswana and
returned to the United Kingdom, the two children of the marriage were with the Plaintiff in
Gaborone. When Plaintiff left the United Kingdom to come to Botswana he sold his house and
furniture. In his passport, which he renewed in 1971, he gave Botswana as his country of
permanent residence. He stated positively in Court that he had formed a settled intention of
remaining in Botswana with his children and he regarded Botswana as his permanent home.
Held:
Plaintiff, on a balance of probabilities, had proved that he had established a domicile of choice in
Botswana.
Case Information
Undefended Action for Restitution of Conjugal Rights.
Mr. Richard Lyons for Plaintiff.
Judgement
Rooney, A.C.J.
This is an uncontested action for divorce in which the Plaintiff, who is the husband, seeks an
Order calling upon the Defendant to restore conjugal rights to him and, failing compliance
therewith, a decree of divorce on the grounds of malicious desertion.
For the Court to exercise jurisdiction in this case it must be satisfied that the Plaintiff, who was
born in the United Kingdom, has established a domicile of choice in Botswana. In Murray v.
Murray (1926-53. H.C.T.L.R. 48) Huggard, C.J., in a case before this Court, said:
"The jurisdiction to hear applications for divorce, or to grant the relief sought, depends entirely
on the domicile of the husband. The Court has no jurisdiction unless the Court is satisfied that
the husband is domiciled in the Protectorate."
There has been no change in the law since that date and it is necessary to decide whether or not
the Plaintiff is domiciled in Botswana.
The only evidence as to domicile was given by the Plaintiff himself. He told the Court that he
came to this country in October, 1970, to take up an appointment as a Project Officer with the
Botswana Development Corporation. He has signed a 5-year contract with the Corporation. He
possesses a Degree in Economics from London University and his work is concerned with
economic planning. He considers that at this stage of development, Botswana offers both interest
and scope for a person qualified
1971 (2) BLR p45
ROONEY ACJ
in this field. The Plaintiff is now 31 years of age; he was married in 1965 and there are two
children of the marriage; both these children are at present in his custody and the elder one is
attending school at Gaborone.
His wife has already left Botswana and returned to England. The parties lived in Nigeria for a
short period commencing in 1968. The Plaintiff explained that the reason for going to Nigeria
was that there were difficulties in his marriage which he thought might be resolved by a sojourn
abroad. He returned with his wife to England and there it was decided to return to the Continent
of Africa. The Plaintiff answered an advertisement in The Times of London which led to his
coming to Botswana. When he left England he sold his house and furniture and purchased new
furniture in Botswana with a grant made to him by his employers. He has no further financial
connections with England. He earns a salary of R6,000.00 a year in this country and considers
that the prospects for the future are good, even if the Botswana Development Corporation does
not retain his services after the end of his present contract. He renewed his passport on the 22nd
September, 1971, with the British High Commission in Gaborone and it is indicated thereon that
Botswana is his country of permanent residence. He states further that he has made enquiries
about the acquisition at some future time of citizenship and the purchase of land in this country.
He states positively to the Court that he has formed a settled intention of remaining in Botswana
with his children and he regards this country as his permanent home.
The law regards the acquisition of a domicile of choice is no different in this country than it is in
South Africa or in England. The law is well stated in the head-note to the case of Eilon v. Eilon
(1965 (1).SA 703), thus:
"The onus of proving a domicile of choice is discharged once physical presence is proved and it
is further proved that the de cujus had at the relevant time a fixed and deliberate intention to
abandon his previous domicile, and to settle permanently in the country of choice. A
contemplation of any certain or forseeable future event on the occurrence of which residence in
that country would cease, excludes such an intention. If he entertains any doubts as to whether he
will remain or not, intention to settle permanently is likewise excluded."
In this case the Court has before it a direct declaration of intention and certain surrounding
circumstances. In Dicey's Conflict of Law, 8th Edition, at page 96, the following passage occurs:
"Direct declarations of intention call for special comment. The person whose domicile is in
question may himself testify as to his intention, but the court will view the evidence of an
interested party with suspicion. Declarations of intention made out of
1971 (2) BLR p46
ROONEY ACJ
court may be given in evidence by way of exception to the hearsay rule. The weight of such
evidence will vary from case to case. To say that declarations as to domicile are "the lowest
species of evidence" is probably an exaggeration. The present law has been stated as follows:
"Declarations as to intention are rightly regarded in determining the question of a change of
domicile, but they must be examined by considering the persons to whom, the purposes for
which, and the circumstances in which they are made, and they must further be fortified and
carried into effect by conduct and action consistent with the declared expression." Thus in some
cases the courts have relied to some extent on declarations of intention in deciding issues as to
domicile, indeed, in one case the declaration was decisive. But in other cases the courts have
refused to give effect to the declarations on the ground that they were inconsistent with the
conduct of the propositus: a domicile cannot be acquired or retained by mere declaration. The
courts are, in particular, reluctant to give effect to declarations which refer in terms to "domicile"
since the declarant is unlikely to have understood the meaning of the word. Declarations which
are equivocal have little effect: thus a declaration of intention to reside permanently in the United
Kingdom is no evidence of the acquisition of a domicile of choice in any of the countries which
are included in the United Kingdom, although it might be evidence of the abandonment of a
domicile elsewhere. In order to determine where a person was domiciled at a particular time, the
court may take into consideration his conduct after that time. But of course such evidence is not
decisive."
This passage can be compared with the view of Solomon, J.A., in the case of Webber v. Webber
(1915 AD 239 at 250) which reads:
"Now the present case differs in this respect that here the person whose intention had to be
ascertained was himself a witness in the case. And naturally his evidence as to his own intention
is the very best that could be given. He himself would know with certainty what was in his own
mind; no one else possibly could. And in such a case the enquiry seems to resolve itself to a great
extent into a question of credibility."
From these authorities I would conclude that where a party to proceedings, in which the issue of
domicile is a factor, gives evidence in positive and unequivocal terms in regard to the
abandonment of his domicile of origin and his intention to acquire a new domicile, his evidence
should not be rejected on the sole ground that he has a strong motive for giving it, provided
1971 (2) BLR p47
ROONEY ACJ
that he appears to the Court to be a credible witness and there is nothing in his conduct which is
inconsistent with his testimony.
I am satisfied that that is the case here. That the Plaintiff is a credible and honest witness and that
his declaration of intention in regard to domicile is sincere. There is nothing in his conduct which
is inconsistent with his statement of intention. I consider that the Plaintiff has established on the
balance of probabilities that he has acquired a domicile of choice in Botswana and it is
competent for this Court to exercise jurisdiction in respect of the dissolution of his marriage.
A rule nisi will issue as prayed.Rooney, A.C.J.
This is an uncontested action for divorce in which the Plaintiff, who is the husband, seeks an
Order calling upon the Defendant to restore conjugal rights to him and, failing compliance
therewith, a decree of divorce on the grounds of malicious desertion.
For the Court to exercise jurisdiction in this case it must be satisfied that the Plaintiff, who was
born in the United Kingdom, has established a domicile of choice in Botswana. In Murray v.
Murray (1926-53. H.C.T.L.R. 48) Huggard, C.J., in a case before this Court, said:
"The jurisdiction to hear applications for divorce, or to grant the relief sought, depends entirely
on the domicile of the husband. The Court has no jurisdiction unless the Court is satisfied that
the husband is domiciled in the Protectorate."
There has been no change in the law since that date and it is necessary to decide whether or not
the Plaintiff is domiciled in Botswana.
The only evidence as to domicile was given by the Plaintiff himself. He told the Court that he
came to this country in October, 1970, to take up an appointment as a Project Officer with the
Botswana Development Corporation. He has signed a 5-year contract with the Corporation. He
possesses a Degree in Economics from London University and his work is concerned with
economic planning. He considers that at this stage of development, Botswana offers both interest
and scope for a person qualified
1971 (2) BLR p45
ROONEY ACJ
in this field. The Plaintiff is now 31 years of age; he was married in 1965 and there are two
children of the marriage; both these children are at present in his custody and the elder one is
attending school at Gaborone.
His wife has already left Botswana and returned to England. The parties lived in Nigeria for a
short period commencing in 1968. The Plaintiff explained that the reason for going to Nigeria
was that there were difficulties in his marriage which he thought might be resolved by a sojourn
abroad. He returned with his wife to England and there it was decided to return to the Continent
of Africa. The Plaintiff answered an advertisement in The Times of London which led to his
coming to Botswana. When he left England he sold his house and furniture and purchased new
furniture in Botswana with a grant made to him by his employers. He has no further financial
connections with England. He earns a salary of R6,000.00 a year in this country and considers
that the prospects for the future are good, even if the Botswana Development Corporation does
not retain his services after the end of his present contract. He renewed his passport on the 22nd
September, 1971, with the British High Commission in Gaborone and it is indicated thereon that
Botswana is his country of permanent residence. He states further that he has made enquiries
about the acquisition at some future time of citizenship and the purchase of land in this country.
He states positively to the Court that he has formed a settled intention of remaining in Botswana
with his children and he regards this country as his permanent home.
The law regards the acquisition of a domicile of choice is no different in this country than it is in
South Africa or in England. The law is well stated in the head-note to the case of Eilon v. Eilon
(1965 (1).SA 703), thus:
"The onus of proving a domicile of choice is discharged once physical presence is proved and it
is further proved that the de cujus had at the relevant time a fixed and deliberate intention to
abandon his previous domicile, and to settle permanently in the country of choice. A
contemplation of any certain or forseeable future event on the occurrence of which residence in
that country would cease, excludes such an intention. If he entertains any doubts as to whether he
will remain or not, intention to settle permanently is likewise excluded."
In this case the Court has before it a direct declaration of intention and certain surrounding
circumstances. In Dicey's Conflict of Law, 8th Edition, at page 96, the following passage occurs:
"Direct declarations of intention call for special comment. The person whose domicile is in
question may himself testify as to his intention, but the court will view the evidence of an
interested party with suspicion. Declarations of intention made out of
1971 (2) BLR p46
ROONEY ACJ
court may be given in evidence by way of exception to the hearsay rule. The weight of such
evidence will vary from case to case. To say that declarations as to domicile are "the lowest
species of evidence" is probably an exaggeration. The present law has been stated as follows:
"Declarations as to intention are rightly regarded in determining the question of a change of
domicile, but they must be examined by considering the persons to whom, the purposes for
which, and the circumstances in which they are made, and they must further be fortified and
carried into effect by conduct and action consistent with the declared expression." Thus in some
cases the courts have relied to some extent on declarations of intention in deciding issues as to
domicile, indeed, in one case the declaration was decisive. But in other cases the courts have
refused to give effect to the declarations on the ground that they were inconsistent with the
conduct of the propositus: a domicile cannot be acquired or retained by mere declaration. The
courts are, in particular, reluctant to give effect to declarations which refer in terms to "domicile"
since the declarant is unlikely to have understood the meaning of the word. Declarations which
are equivocal have little effect: thus a declaration of intention to reside permanently in the United
Kingdom is no evidence of the acquisition of a domicile of choice in any of the countries which
are included in the United Kingdom, although it might be evidence of the abandonment of a
domicile elsewhere. In order to determine where a person was domiciled at a particular time, the
court may take into consideration his conduct after that time. But of course such evidence is not
decisive."
This passage can be compared with the view of Solomon, J.A., in the case of Webber v. Webber
(1915 AD 239 at 250) which reads:
"Now the present case differs in this respect that here the person whose intention had to be
ascertained was himself a witness in the case. And naturally his evidence as to his own intention
is the very best that could be given. He himself would know with certainty what was in his own
mind; no one else possibly could. And in such a case the enquiry seems to resolve itself to a great
extent into a question of credibility."
From these authorities I would conclude that where a party to proceedings, in which the issue of
domicile is a factor, gives evidence in positive and unequivocal terms in regard to the
abandonment of his domicile of origin and his intention to acquire a new domicile, his evidence
should not be rejected on the sole ground that he has a strong motive for giving it, provided
1971 (2) BLR p47
ROONEY ACJ
that he appears to the Court to be a credible witness and there is nothing in his conduct which is
inconsistent with his testimony.
I am satisfied that that is the case here. That the Plaintiff is a credible and honest witness and that
his declaration of intention in regard to domicile is sincere. There is nothing in his conduct which
is inconsistent with his statement of intention. I consider that the Plaintiff has established on the
balance of probabilities that he has acquired a domicile of choice in Botswana and it is
competent for this Court to exercise jurisdiction in respect of the dissolution of his marriage.
A rule nisi will issue as prayed.