[2024] UGHC 643

10

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT ARUA

## FAMILY CAUSE NO. 0001 OF 2024

## IN THE MATTER OF AN APPLICATION FOR A GUARDIANSHIP AND CUSTODY ORDER IN RESPECT OF OPAKRWOTH PRAISE JOSEPH AGED 14 AND **MUGISHAPAMUNGU ISREAL EMMANUEL AGED 8 (MINORS)**

ORIBI JOB::::::::::::::::::::::::::::::::::::

#### **VERSUS**

# TUAPE CHRISTINE:::::::::::::::::::::::::::::::::::: BEFORE HON. JUSTICE COLLINS ACELLAM

#### **RULING**

### **Brief Introduction**

This is an application brought by Notice of Motion under Article 139(1) of the 1995 Constitution, Sections 14,33 and 39 of the Judicature Act Cap. 13, Section 3, 43B, 73 of the Children Act (as amended), Rule 19 (1), (2) (H) & (3) of the Children (Family and Children) Court Rules, Section 98 of the Civil Procedure Act Cap . 71 and Order 51 Rules 1 & 3 of the Civil Procedure Rules S. I 71-1 for orders that;

# a) ORIBI JOB be appointed as the legal guardian of OPAKRWOTH PRAISE JOSEPH and MUGISHAPARWOTH ISREAL EMMANUEL aged 14 and 8 years respectively.

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### b) ORIBI JOB be granted custody of OPAKRWOTH PRAISE JOSEPH and MUGISHAPARWOTH ISREAL EMMANUEL.

## Grounds On Which the Application Is Based.

The grounds in support of the application are contained in the affidavit of the Applicant, ORIBI JOB deponed on the 15^th of Feb, 2024 and briefly states:

- 1) That the Applicant is the Paternal Uncle of the minors, and he is fully prepared to be responsible for their welfare. - 2) That the biological father of the minors, a one OCAMA KIZITO KACWINY has since passed on. - 3) That their biological mother, the Respondent is in another relationship elsewhere and unwilling to take care of them. - 4) That the minors have been in the custody of their maternal grandmother who is too old to look after them. - 5) That it is in the best interest of the minors that the Applicant be appointed as the minor's legal guardian and subsequently be granted custody. - Grounds in Opposition

In opposition to the Application, the Respondent, TUAPE CHRISTINE, the biological mother 40 to the Minors deponed an affidavit in reply on the 25^th of March 2024 briefly that.

1) That the Application is tainted with falsehood which court should dismissed.

- 2) That she is the biological mother of the minors and her late husband died untimely during which he was bedridden for 2 years before his death, a period in which the Applicant was in Kampala. - 3) That the Applicant's motive is selfish, malicious and defamatory with intent to snatch the children from her. - 4) That she has never abandoned her children as they are staying with her mother, and she provides for all their needs without fail and visit them regularly. - 5) That the Applicant despite being their uncle has never extended a single support towards the children clear enough to prove his care towards them. - 6) That she is more than capable to take care of her children's needs as they remain in her custody and the Applicant can support if he so wishes as they will have visitation rights. - 7) That the elder brother to the minors has never been in the Applicant's custody but rather stayed with his father's friend OCHAYA JONAS until 2020 when he went to stay with his Aunt ATYERO GRACE till date. - 8) That the Applicant's sole interest is in the property left behind by her late husband for his children. - 9) That its on that ground that the Applicant and his family excluded her from the process of obtaining Letters of Administration to her late husband's estate much as he was legally married to her because of their greed for properties. - 10) That the Application in itself is not in the interest of the children as the motive behind the Application is to take charge and dispose of the property left by her late husband in the name of educating the children with education and support which she is already giving without any hesitation or complaints. - 11) That the Applicant is of questionable character as he is actually unemployed hence not suitable to have custody of the children as she is not tired of taking care of her children who are equally not complaining. - 12) That it is only just that the Application be dismissed with costs against the Applicant for it being frivolous in nature.

### Grounds in Rejoinder

- $35^{\circ}$ In rejoinder, the Applicant contends that the Respondent has failed to explain why her mother, who resides in Opoko Village, Ojigo Parish, Wadelai sub county, Pakwach District has custody of the minors and not her, a resident of Ajono-Yivu village, Eruba Parish, Vurra sub county, Arua District. - He further adds that the eldest son, MERVIN MUNGURIEK has been looked after by him and not the Applicant ever since he was a minor till date, and he has continuously taken care of his 40 school fees and necessities while he was in Pokea Minor Seminary and later St. Kizito Secondary School, Bugolobi since 2019 after the death of his father thereafter he lived with him during the subsequent covid-19 lockdowns.

He contends that the eldest son has since joined KISUBI SEMINARY with the help of his paternal uncle, the Rt. Reverand Raphael P'MONY Wokorach, soon to be Arch Bishop of Gulu

Arch Diocese and that it is not true that the Respondent has ably taken care of the children as OPAKRWOTH PRAISE has had school arrears from St Thomas Education Centre, his previous school.

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$\mathsf{S}$

That the Respondent has not shown whether or not MUGISHAPAMUNGU ISREAL is in $5.$ school or alive as alleged and the academic progress of OPAKRWOTH PRAISE JOSEPH performance is abysmal.

The Applicant concludes that he is gainfully employed at Regina Mundi Catholic Aid Foundation Limited and whatever property the deceased left to them is theirs and he has no interest in it and the minors shall be looked after by the whole family.

### Representation

During the trial, the Applicant was represented by *M/S Kania & Alli Advocates & Solicitors* whereas the Respondent was represented by FIDA (U) Legal Aid Clinic.

Before I proceed to the merits of the Application, I want to note that I have perused through the application and all their supporting documents/affidavits and affidavit in reply, Both 15 Counsel for the Applicant and Respondent filed their submissions which I have duly put into consideration to come up with this ruling. There were rejoinders made on record. I shall now proceed to enlist the issue in contention.

#### **ISSUES**

- 20 1. Whether special circumstances exist to warrant the grant of an order appointing the Applicant as the legal guardian of the minors herein. - 2. Whether special circumstances exist to warrant the grant of custody of the minors herein to the Applicant. - 3. What remedies are available to the parties. - 25 Determination of the Issues

### I shall determine Issue 1 and 2 jointly

Whether special circumstances exist to warrant the grant of an order appointing the Applicant as the legal guardian of the minors and custody of them.

#### Position of the law

A guardian is defined in Section 1 of the Children Act to be a person having parental 30 responsibility for a child.

Section 43A (1) provides for legal guardianship of children in Uganda by citizens of Uganda. 43B (a) envisages that such an application may be made by any person above the age of 18 years and shall be made to the high court.

- In the case of Ayla Mayanja; High Court Misc. Cause No. 20 of 2003, the court noted that any 35. of the following persons may apply for guardianship: - Biological parents. $(i)$ - $(ii)$ Any relative. - Any person not related to the child. $(iii)$ - $(iv)$ Any adult person of sound mind.

In the instant case, the Applicant is a Paternal Uncle to the minor born of the year 1978. National Identification has been filed on record to prove the Applicant to be of 45 years, adult of sound mind with interest to take on responsibility for the minor children.

In the Matter of Application of Guardianship by Rod-rigo Boniface, the court stated, inter $\mathsf{S}$ alia, that:

> "a guardian can be anyone: relative, friends of the family, or other people suit-able to raise the child ... For an applicant to qualify as a guardian, he or she must be an adult of sound mind, should have genuine interest in the child's welfare, there must not exist any conflict of interest between the applicant and the child, and the applicant must be physically able to fulfil the responsibility(ties), must be able to handle the physical demands of raising a child, must have enough time to care for the children, must not be likely to exploit or abuse the children ... should have values or morals the court should feel comfortable with."

- In light of the facts, the Applicant seeks grant of legal guardianship of the minors on grounds 15 that their biological father has since passed on and the children's biological mother is in another relationship elsewhere unwilling to take care of the minors who have been left in custody of their maternal grandmother who is too old to look after them. This view is disputed by the Respondent, the Minor's biological mother who refutes that she is able and willing to take care - of her children and the Applicant, and other relatives can render help if they so wish but her 20 children are well catered for in their basic needs.

It is trite law that when considering the issues to deal with children, their welfare is paramount as stipulated under Section 3(1) of the Children's Act (as amended). In all matters concerning children, the best Interest of the child shall be the primary consideration. The Principle was upheld in the decision of *Deborah Joyce Alituubera*, Civil Appeal No. 70 of 2011.

According to Bromley's Family Law. 8^th Edition at Page 336, it is stated that

"... the children's welfare is the court's sole concern .... it is therefore paramount for court to establish the relationship between the person seeking legal guardianship and the child in order to ensure that the best interest of the child will be achieved"

- In light of the facts, it's not in dispute that the Applicant is the paternal uncle of the children, 30 OPAKRWOTH PPRAISE JOSEPH and MUGISHAPARWOTH aged 14 and 8 years respectively who are currently with the respondent's mother, a one TUAPE DONNO in Ojigo Central Village, Ojigo Parish, Wadelai sub-county in Pakwach District while the Respondent, $\overline{a}$ their mother lives in Ajono -Yivu village, Eruba Parish, Vurra sub-county, Arua District. - For proof of age of the children, copies of Baptism Cards have been filed on record marked 'D' 35 and 'F'. An Introduction Letter marked "E" of Ojigo Central Village, Ojigo Parish, Wandelai sub-county in Pakwach District filed on record introducing the two minor children and informing court that the two minors live with their grandmother named TUAPE DONINA. The said introductory letter was signed by the LC1 Chairman a one OCAMA FRANCIS. - I wish to point that the law is very clear in regard to welfare of the child, regard has to always be 40 given to the ascertainable wishes and feelings of the children concerned with due regard to their age and understanding, the child's emotional and educational needs, the likely effects of any change in the child's circumstances, the child's sex, age, background and other circumstances relevant to the matter, any harm that the child has suffered or is at the risk of suffering and where - relevant, the capacity of the child's parents, guardian or any other person involved in the case of $45^°$ the child and in the needs of the child. See section 3 (3) of the Children's Act as amended.

Section 43 F (f) of the Children's (Amendment) Act provides that where the child is twelve years of age or above, Court shall before grant of a Guardianship Order satisfy itself that his or her

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$5^{\circ}$ consent to the guardianship was obtained except where its impossible for the child to express his

In light of the facts, none of the children was produced before court to ascertain their wishes in respect to the guardianship order, however, this does not stop court from dealing with the Application in a just manner to ensure their interest and welfare is well catered for.

- I am aware that I am enjoined under Section 20 of the Children Act to obtain and rely on a 10 report of a Probation and Social Welfare Officer on the current situation of the child. On record, there is a report made by the office of the Community Development Officer, Wandelai Sub County Local Government addressed to this honourable court introducing ORIBI JOB dated 19^th January 2024. - The report emphasizes that the most critical need for children is Education where the Applicant 15. wishes to transfer them to St. Kizito Primary School in Ediofe, Arua City where the Respondent

The officer Kimira Innocent further informs this court that there is no dispute in respect to paternity of the children as the Applicant's brother's children but rather the reason as to why the Respondent was chased out of her matrimonial home was still hanging and was never settled.

This is an issue to deal with the interest of the children and not emotional discontent of the parent or relatives of the children. I must also point out that a mother can't be deprived of her children and must be involved in every step of the way. It is only fair that adult members must put their difference aside for the benefit the children.

On perusal of record, I don't see any report from the Probation and Social Welfare Officer. $25$

However, this is a defect in form and not substance. I am alive to the principle that the biological mother is the best person to provide care for the child/children until the minor is of age. See Re-Trevor Mugume, Family Cause No. 6 of 2029.

I agree with counsel for the Applicant that the age and needs of the children are very crucial in this case. It is in the best interest to reside with a parental figure who will take interest in their 30 education and instil the right moral values.

These are young boys who have lost their father at a young age and need guidance to navigate this world to become upright independent citizens of this country.

I wish to point out that in the African culture, children are raised by the whole community, so I believe, its only right that the relatives of the minor children from the paternal side. 35

The effect of a guardianship order is that; it vests parental responsibility of a child in the guardian. The order remains in force until the child in relation to whom it is issued attained the age of eighteen years. And in case of death of the guardian or suffering from infirmity of the body or mind, the guardianship ceases to apply.

In this Application, the Applicant did not disclose his earnings but rather reiterated that the 40 children will be looked after by whole family members and contributions will be made to all their needs by all family members. The Respondent states that she is capable of taking care of their children and she does not deny the paternal uncles or relatives from having access to them.

- Having in mind the provisions of Article 31(4) of the constitution on the right and duty of the $\mathsf{S}$ parents to care for and bring up children together with section 6 (1) of the Children's Act which provides that every parent or guardian shall have the parental responsibility for his or her child coupled with the need to balance the minor's right to education. - In light of the above, I hereby deny the said order but direct that the Applicant and his relatives $\bullet$ be granted Access to the Children to contribute whatever is necessary for the decent upbringing 10

I so order.

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**ACELLAM COLLINS** 15

**JUDGE**

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