THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(FAMILY DIVISION)
FAMILY CAUSE NO. 68 OF 2019
IN THE MATTER OF TREVOR MUGUMU (CHILD)
AND
IN THE MATTER OF AN APPLICATION FOR LEGAL GUARDIANSHIP BY NAMWANGA BETTY (APPLICANT)
BEFORE: HON. LADY JUSTICE KETRAH KITARIISIBWA KATUNGUKA
RULING
Introduction
[1] This is an application by Namwanga Betty for an Order for guardianship brought under Articles 139 (1) of the Constitution, Section 98 of the Civil Procedure Act Cap. 71; Sections 14, 33 and 39 of the Judicature Act Cap 13; and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules SI 71 – 1, for orders that the applicant be appointed legal guardian of the child Trevor Mugumu so as to receive compensation from Uganda National Roads Authority which intends to access full right of way to construct a road on a portion of kibanja situate at Katongole Zone, Muyenga Bukasa, Makindye Division, Kampala District, registered in the name of the child.
[2] The grounds for this application are set out in the affidavit deponed by Namwanga Betty, and are briefly that; part of the land under which Uganda National Roads Authority (hereinafter UNRA) is going to construct a road is a kibanja bought for and in the names of Trevor Mugumu; that UNRA seeks to compensate the child in order to access full right of way to construct a road through a portion of the child’s kibanja and had executed an undertaking with the child represented by the applicant; that UNRA advised the applicant to procure a court order to act for and on behalf of the child prior to any compensation; that the proceeds of the compensation will be put to education and purchasing an alternative kibanja for the child; that the legal guardianship order is sought so as to administer the child’s property.
The Applicant represents herself.
Supporting documents
[3] Attached to the application are the National ID of the applicant, birth certificate of the child; UNRA undertaking; copy of the sale agreement of the suit land; and LC 1 letter from Bukasa Katongole Village.
The facts of the case appear to be;
[4] That the applicant is the biological mother of the child and caters for all his needs; that the father of the child died in 2014; that the applicant bought the suit property for and on behalf of the child in 2009 when the child was 5 years old; that UNRA now seeks to compensate the child for the suit property as it intends to construct a road on the suit property; that the applicant now seeks a guardianship order so as to be able to receive the compensation for the suit property on the child’s behalf.
The issues for resolution are;
1. Whether this court has jurisdiction to entertain this matter.
2. Whether it is in the best interests of the child that the applicant be granted a guardianship order.
THE LAW
Jurisdiction.
[5] Article 139(1) of the Constitution provides;
‘The High Court shall, subject to the provisions of this Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by this Constitution or other law’.
Section 14 (1) of the Judicature Act provides;
‘The High Court shall, subject to the Constitution, have unlimited original jurisdiction in all matters and such appellate and other jurisdiction as may be conferred on it by the Constitution or this Act or any other law’.
Section 33 of the Judicature Act provides;
‘The High Court shall, in the exercise of the jurisdiction vested in it by the Constitution, this Act or any written law, grant absolutely or on such terms and conditions as it thinks just, all such remedies as any of the parties to a cause or matter is entitled to in respect of any legal or equitable claim properly brought before it, so that as far as possible all matters in controversy between the parties may be completely and finally determined and all multiplicities of legal proceedings concerning any of those matters avoided’.
Section 98 of the Civil Procedure Act cap. 71, provides;
‘Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of this court’.
O. 52(1) of the Civil Procedure Rules provides;
‘All applications to the court, except where otherwise expressly provided for under these Rules, shall be by motion and shall be heard in open court’.
This court therefore has jurisdiction to entertain this application.
The position of the law;
[6] The position of the law is that when considering issues to deal with children, their welfare is paramount, pursuant to Article 34 of the Constitution of the Republic of Uganda, Section 3(1) of the Children Act, Article 3(1) of the United Nations Convention on the Rights of the child (which Uganda ratified in 1990); Article 4(1) of the African Charter on the Rights and the Welfare of the Child (which Uganda ratified in 1992). This position has been fortified by courts who have held that in all matters concerning children, the best interests of the child shall be the primary consideration, (see the case of Mark Siduda Trevor (an infant) Family Cause No. 213 of 2014 and the case of Deborah Joyce Alitubeera Civil Appeal No. 70 of 2011.
According to Bromley's Family Law, 8th Edition, at page 336,
“…the children’s welfare is the court’s sole concern, and other factors are relevant only to the extent that they can assist the court in ascertaining the best solution for the child….”
[7] Article 26 (1) of the Constitution of Uganda provides;
‘Every person has a right to own property either individually or in association with others’.
Section 11(1) (a) of the Contracts Act, 2010) provides;
‘A person has capacity to contract where that person is—
[8] Section 1 (k) of the Children Act defines a guardian, as a person having parental responsibility for a child; it is also the duty of a guardian or any person having custody of the child to maintain that child;
Section 43H (1) of the Children (Amendment) Act, 2016 provides “...all persons appointed as guardians have parental responsibility for the child …”
Section 1(o) of the Children Act, Cap.59 states that “Parental responsibility means all rights, duties, powers, responsibility and authority which by law a parent of a child has in relation to the child.”
RESOLUTION OF THE CASE.
[9] Having considered the law now the issue for determination is whether it is in the best interests of the child that this application be granted.
[10] The applicant is, according to the availed birth certificate, the mother to the child, and as such she has the constitutional duty to raise and cater for him. The applicant availed to court the original sale agreement wherein she bought the suit property for the child. The LC 1 of Bukasa Katongole where the suit property is situate wrote a letter affirming that the applicant is and has been a resident of Bukasa Katongole Village. However the applicant did not avail to court any evidence by way of letter of the LC 1 whom she testified had witnessed the sale agreement of the suit property.
The child, aged 15 years, appeared in court and informed court that he stays in Bukasa with his mother and that he was present when the land was bought for him although he was still young (5 years old); that he was told to write his name on the sale agreement. He informed court that when the land is sold, he wants another piece of land and that his siblings can share in the proceeds of the sell as well.
The applicant and the child both live on the suit property. The child testified that he is in Senior 3 at Kairos High School and is therefore being cared for by his mother, the applicant. The child’s best interests are exhibited in the applicant who purchased the suit property for the child and intends to use the proceeds from the compensation paid by UNRA to cater for school fees for the child and his two siblings as well as getting another piece of land for the children and constructing a house and rentals thereon.
[12] In my view a biological parent is the best person to provide care for the child and ensure that the child’s rights, including property rights, are protected and preserved until he/she is of age. In most instances the child has come to own property because the parent has gifted or bequeathed it so where a child has property it should in the most ideal situations be protected by the biological parent until the child is of majority age. While most decisions are made on behalf of a child by either a parent or guardian, for example decisions to seek medical assistance, decisions on accommodation, among others, being a biological parent on its own does not automatically entitle a parent to deal in the property of his or her minor child because ownership rights are exclusively person to holder (see Article 26 cited above). To harness the rights of a child to own property and to benefit there from without jeopardising his or her welfare, courts have granted Guardianship orders to biological parents and other people who have demonstrated that their intention is for the welfare of the children who own property, like in this case (See the case of Alya Mayanja (HCMC No. 20 of 2003; In Re Mark Siduda (an infant) Family Cause No. 213 of 2014 and In the matter of an Application for guardianship by Wandera Peter ; Family and Children’s Cause No. 04 of 2017 ).
[13] The consideration is that the applicant should not have interests that are adverse to those of the minor, the subject of the application, and the minor’s physical, emotional and educational needs would be sufficiently met by granting the order. (see In the matter of Nabatanzi Jovia and In The Matter Of An Application For Guardianship by Ronald Kamusiime, Mc. No. 48 Of 2016).
Section 1 of the 1st Schedule under section 3 of the Children Act provides that whenever a court determines any question with respect to administration of a child’s property or application of any income arising from it the child’s welfare shall be of paramount consideration; Section 3(a) provides that the ascertainable wishes of the child should be considered subject to his age. Trevor Mugumu according to his birth certificate is 15 years of age and he informed court that though he was only five years when the land was bought and he was told to write his name on the agreement; that he knows his mother bought him the land and does not object to its sell as long as the proceeds are used to buy him another piece of land, and that his siblings can also share in the money.
Conclusion
[14] I find that the applicant does not display any adverse interests against the child subject of this application. The child has no capacity to transact and therefore receive compensation for the suit property from UNRA. The compensation is the child’s constitutional right pursuant to Article 26(2) of the Constitution. The child’s current circumstances cannot be changed in the negative for as long as the land proposed to be bought from the proceeds of the compensation of the suit land is of a higher value for the better benefit of the child.
I am therefore granting the application and I hereby make the following orders;
- Ms Namwanga Betty is hereby appointed legal guardian of Trevor Mugumu;
- Ms Namwanga Betty is allowed to receive compensation from Uganda National Roads Authority for the child’s land situated at Katongole Zone, Muyenga Bukasa, Makindye Division, Kampala District;
- Ms Namwanga Betty shall use the proceeds from the compensation to cater for the needs of the child and to ensure that the land to be purchased is of a higher value than the suit land;
- Ms Namwanga Betty shall ensure that the interests of the child are always reflected in the property documents, any land and anything bought with the proceeds of the compensation of the suit property and shall ensure that the child’s property reverts to him when he reaches the age of majority.
- That the applicant shall bear the costs of this application.
Dated at Kampala this 11th Day of March 2020.
KETRAH KITARIISIBWA KATUNGUKA
JUDGE