[2025] UGHC 409

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KABALE CIVIL SUIT NO. 36 OF 2022

## RUZINDANTARO TADEO ::::::::::::::::::::::::::::::::::::

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### **VERSUS**

### THE SCHOOL MANAGEMENT COMMITTEE 15 **BISHOP ASILI MEMORIAL NURSERY &** PRIMARY SCHOOL :::::::::::::::::::::::::::::::::::

#### JUDGMENT OF HON. JUSTICE KAROLI LWANGA SSEMOGERERE 20

## **Brief Facts:**

Ruzindataro Tadeo, ("Plaintiff"), father of a minor brought this action $25$ against the School Management Committee of Bishop Asili Memorial Nursey and Primary School ("Defendant") in 2022 for the following declarations. For ease of reference I will refer to the School Management Committee, and the school as "Defendants".

- 30 (a) A declaration that the action of the defendant releasing to a stranger a a minor child without the plaintiff's knowledge and consent was illegal and in breach of the defendant's duty of care; - (b)A declaration that the action of the defendant releasing a minor child to a stranger and putting her into the custody of a stranger without the plaintiff's knowledge and consent was illegal and in breach of the welfare principles laid down in the Children Act, [now Cap 62 of the Laws of Uganda];

Plaintiff prayed for an award of punitive damages, exemplary damages, costs and any other reliefs. I have deliberately abbreviated the allegations in 40

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the plaint to focus on the reliefs sought by the plaintiff. In February 2014, 5 Plaintiff enrolled his daughter in Bishop Asili Memorial Nursery and Primary School. In the meantime, plaintiff's marriage to the minor's mother ended in divorce. It is important to note that the minor's mother, Kilande Mercy is not party to these proceedings.

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On April 25^th, 2018, Plaintiff visited the Defendant school where his minor attended school only to be informed that the minor had been taken by her mother, his ex-wife, Kilande Mercy. Plaintiff had not been informed by the defendant's school of the fact of this removal. He opened a case of child theft at Kabale Central Police Station vide SD Ref 57/26/4/2018.

Subsequent to the filing of the complaint at Police, the Defendants provided to the Plaintiff an end of term report confirming that the minor had only sat for two examinations at the school and did not conclude her examinations. Plaintiff was denied access to the minor's school belongings. Police 20 proceeded with investigations vide Criminal Reference "CRB" 949/2018. There was little traction until the Regional CID officer advised the Plaintiff to seek redress from the courts of law.

Plaintiff obtained a letter dated April 19^th, 2018 in the names of the mother $25$ Kilande Mercy written to the defendants requesting that the minor child be taken for medical treatment at Mulago Hospital. It appears at the time of writing this letter, the mother had already left the country, on April 18^th, 2018. The travel history obtained from the Directorate of Citizenship and Immigration Control of the Ministry of Internal Affairs on December 10^th, 30 2019 shows entries of her departure from Entebbe International Airport.

At the time of filing of the suit, Plaintiff did not have physical custody of his daughter, the minor. He claimed emotional, pyschological distress and nervous breakdown.

Defendant's denied the Plaintiff's claim in toto. Defendant claimed the two parents had joint custody and denied breach of any duty of care owed to the Plaintiff. Defendant also averred the minor had stomach issues upon which she was released on April 19^th, 2018 for treatment. The Defendant's Written Statement of Defence in paragraph 6 conceded they were no longer in possession of the minor. They defended their actions on two fronts, first

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in pararaph 6(e) of their Written Statement of Defence that they could not $\mathsf{S}$ have suspected that the minor's mother would take her beyond the requested time. Second, and in the alternative that their actions promoted the best interests of the minor child in paragraph 7(iii) of their Written Statement of Defence. Defendant denied any of the damages claimed by the Plaintiff.

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This is not the first of lawsuits between the parties. An earlier lawsuit by the Plaintiff against the Board of Governors of Bishop Asili Memorial Nursery and Primary School and the mother Kilande Mercy, vide High Court Civil Suit No. 20 of 2018 filed in this honourable court was withdrawn on September 13, 2022, after a ruling in Miscellaneous Application No. 37 Of 2021 arising out of this prior suit declared the suit incompetent as the 1^st defendant was a non-existent entity and the failure to serve the minor's mother Kilande Mercy.

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This matter came before me for final disposal on April 16, 2025 and court made directions for all the parties including the minor to appear before court, on May 16, 2025 in addition court requested appeareance of two additional third parties. The first was the Probation and Social Welfare Officer. Kabale District and the second, Phionah Rukundo who was in custody of the minor from 2018 to 2023 when the child was recovered and she was granted custody by way of a consent order entered before this honorable court in Miscellaneous Application No. 001 of 2023 on September 29^th, 2023. Ms. Phionah Rukundo wrote to court on May 12, 2025, pleading a litany of reasons that court found it insufficient and contradictory. These are: (a) that she was heavily pregnant, with a due date in late June or early July 2025; (b) that she had ongoing exams at Makerere University ending on May 17, 2025; and (c) that she had not been facilitated to travel and was financially constrained with her children's fees.

Given the fact that the case involved a minor, and special procedures now in place to cater for the testimony and appearances for vulnerable persons, court heard the matter on May 19, 2025.

Representation: 40

Plaintiff was represented by Mr. Godwin Masereka of M/S Elgon and Co. $\mathsf{S}$ Advocates and Mr. Nahabwe Timothy M/S Twikirize and Co. Advocates. Defendant was represented by Mr. Justus Muhangi of M/S Justus Muhangi and Co. Advocates. All parties were in court.

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### Other appearances:

In addition, the affected minor was present in court. The Senior Probation and Social Welfare Officer, Kabale District, Ms. Monica Muhummuza presented her report on the minor. 15

## Disposal of the Main Action:

- At the hearing of the case on May 19, 2025, court proceeded to hear direct 20 testimony. The first witness called to the stand was Monica Muhummuza, Probation and Social Welfare Officer, Kabale District, whose report is on file with the court, filed on the same day. Briefly she stated that she first got involved in the matter in September 2023, when she received a call from the family in charge at Kabale Police to receive a child who had been $25$ delivered at her office and required a place of abode, secure and protective and the child had an ongoing matter in court and at police. She stated that - Assistant Inspector of Police ("AIP") Margaret Kamiranga handed over the minor to her, and the minor was 14 years old. The Officer stated that the information she got from the minor was to the effect that she was not being $30$ treated well by her father whom she did not grow up with, and she was beaten sometimes for bed-wetting and that sometimes, the beating came from her step mother as her father looked on. She also stated the minor bad - been chased from school for lack of school feees. The minor stated that she lived with Fionah Rukundo a close friend to the mother, in Gayaza and she 35 attended school at St. Juliana's. The witness was accordingly discharged.

The second witness was the minor herself. She stated she lived in Mbarara with her dad. She stated she attended Immaculate Heart Nyakibale School in Rukungiri district and was in Senior 3 at the school. In response to direct questions from court, about any issues living with her dad, she stated that there were none. She told court her dad was paying her fees, and everything

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and that her mother was in South Africa. She told court she is not in touch $\overline{5}$ with her mum. On the circumstances of her removal from the defendant's school, she stated on the day she left the defendant's school, she was taken by the matron to the dormitory. She was given to Fiona Rukundo who took her to Kampala to get medication in 2018. No medication was ever administered to her. She added she did not have access to her dad. She told $10$ court she was reunited with her dad in 2023. In response to direct questions whether she had any issues with her dad ever since, she replied in the negative. None of the two witnesses were challenged in cross examination. Having observed the two witnesses in the stand, observed their demeanor, on the stand, I find the two witnesses truthful, with respect to their 15 individual testimonies.

Court had brief addresses from the parties and granted a brief adjournment in light of the minor's testimony which answered the main questions of fact in the plaintiff's claim and directly controverted the defendant's defence that $20$ their actions were in the best interests of the minor. On return to court, defendant counsel admitted to liability for the defendant's actions, and offered to make an apology to the plaintiff. Both counsel confirmed to court they had failed to agree on the amount of compensation. Court directed that the parties file submissions accordingly, which they have

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## Discussion and Analysis:

- Determining what is in the best interests of the child is the overriding and 30 guiding principle in resolving disputes involving minors, cutting across, save where criminal allegations are involved. - From the onset, court must caution itself in matters involving children not to become a party or litigant itself. In determining matters involving the 35 interests of the child, it is important for court not to misdirect itself by mixing up matters involving children with disputes that exist between the parents of the child. I fail to find justification why, divorce proceedings between the parents are part of court's record. If there was a grant of custody or denial of custody, that could be extracted simply in a decree of 40 court.

- The test of what is in the best interests of the child is an objective one. It is $\mathsf{S}$ provided in the written law of Uganda. In this case, even though liability was admitted by the defendant, it is important to frame this issue for proper disposal as follows: - $10$ (a) What rights, duties and responsibilities of the plaintiff were violated by the defendant between 2018 and 2023 when the child was removed from the school by the actions of the defendant? - (b) What are the appropriate remedies to compensate the Plaintiff for this violation?

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I turn to the first issue:

## (a) What rights, duties and responsibilities of the plaintiff were violated by the defendant between 2018 and 2023 when the child was removed from the school by the actions of the defendant?

The Constitution of Uganda has detailed provisions on the rights to the family and rights of children. Article 31(4) of the Constitution states that the responsibility of caring for and bringing up children lies with the parents of the child. It states as follows:

" It is the right and duty of parents to care for and bring up their children."

- The Constitution, as a matter of law presumptively vests the right to custody 30 of children in their natural parents. The laws of Uganda also recognise the right to adoption, but this does not apply in the instant case. Article 31(5) of the Constitution states as follows: - "Children may not be separated from their families or the persons 35 entitled to bring them up against the will of their families or those persons, except in accordance in the law." [Emphasis mine].

The Uganda National Parenting Guidelines, 2018 in paragraph 3.1 add an important element to the dimension of "well to do" and "not so well to do 40 parents". They stipulate that parents are treated equally in the comprehension and interpretation of their duties. First, the guidelines

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provide at page 19; that "children are to be loved unconditionally." Second, $\mathsf{S}$ they provide that "all the needs of the children are to be provided according to the available family resources."

I wish to add, courts or government agencies cannot substitute their own judgment on these two matters by taking opinions on each parent's $10$ available resources to make decisions that ought to be made by the parents. In short, economic distress, disciplining of children, how parents confront shortage of economic resources is all within the province of parenting. Courts and government can only intervene where there is child neglect, and failure of duties of a parent to a child under Section 5(1) of the Children Act. $15$

I make a finding as a matter of fact and law, that absent any evidence to the contrary, the plaintiff is the father of the minor who was separated from him against his will for the (5 year)period (2018-2023) alleged in the main action.

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I also find that no harm has been occasioned to the child from 2023 to 2025 when the minor testified in court at the time of this hearing. The minor testified that she was with the father and his consort/companion, and was all right.

The failure of Fionah Rukundo to appear in court in accordance with the summons, diminuted any mitigating circumstances in favour of the defendants in the apportionment of liability. She failed to appear and explain under what circumstances she took a child who did not belong to her for 5 years!

This fact of involuntary separation of father and the minor is admitted by the defendants in their own pleadings and submissions to this honourable court. I also make a specific finding that the testimony of the Probation and 35 Welfare Officer, a useful element to investigate possible abuse under Section 67 of the Children Act, did not controvert the pleadings by the respective parties. The testimony of the child is to the effect that she was taken by Fionah Rukundo not her mother; Blessing Kukundane on the day she was removed from school absent consent of the father, who had enrolled her in 40 school and was paying her school fees.

$\bigoplus_{\mathbf{A}}$ - I also wish to highlight other provisions of the Constitution that show that $\mathsf{S}$ other human rights were violated in consequence of this action by the defendants. Article 34(1) of the Constitution lists first of the rights of the child states as follows: - "Subject to the laws enacted in their best interests, children shall have the $10$ right to know and be cared for by the parents, or those entitled by law to bring them up." [Emphasis mine].

Parents may delegate any of these rights to a third party, to act on their behalf. This is the foundation of the common law precept, in loco parentis, $15$ in short they act on behalf of the parents. For the benefit of further elaboration, I cite the following apprehension of this situation in an article, authored by R. A. G. O'Brien, *Parents and Education*, published in a journal, The Catholic Lawyer, Volume 2, Number 4, (1956) where he states at page 282, the following: $20$

"The earliest cases in which the relations between parties and their children were considered, so far as I seem, so far as I have I have been able to discover, those concerned with guardianship. There was guardianship by nature, which of course was held to belong to the parents exclusively, and guardianship for the purposes of maintenance, which it was decided by Mr. Justice Danby in the reign of Edward IV, could not be claimed by a stranger." [Emphasis mine].

Uganda's principal act on children, the Children Act, Cap 62, the "Children 30 Act" emphasizes the same position. Section $5(1)(a)$ of the Children Act states:

"It shall be the duty of a parent, guardian or any person having custody of a child to maintain that child, and in particular, that duty gives a child the right to education and guidance."

Section 6 of the Children Act dictates parental responsibility. It states:

"Every parent or guadian shall have parental responsibility for his or her child." 40

I find as a matter of fact and law, that the defendants were in violation of $\mathsf{S}$ the duty of loco parentis when they handed over the minor child to a stranger. The defendants were in loco parentis, in the place of both parents, especially the plaintiff, the father who had enrolled the minor in school; and the mother. Black's Law Dictionary 7^th Edition at page 787 defines in loco parentis as:

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"in the place of a parent, instead of a parent; charged facetiously, with the parent's rights, duties and responsibilities."

I have already outlined the parent's rights, duties and responsibilities in the $15$ law applicable in Uganda, in the Constitution, the Children Act and further elaboration in the Uganda National Parenting Guidelines, 2018.

Black's Law Dictionary 7^th Edition at page 787, defines loco parentis, as:

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"Loco parentis exists when a person undertakes care and control of another in absence of such supervision by the latter's natural parents and in absence of formal legal approval, and is temporary in charater is not be likened to an adoption which is permanent."

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In the instant case, the defendants managing a boarding school undertook to care and control the minor in the absence of such supervision by the minor's parents. There were in the position of the plaintiff, charged with the parent's rights, duties and responsibilities, and in the absence of formal legal approval, could not arrogate to themselves the right to give away, the minor to a third party without the plaintiff's consent.

Further that in the course of a five year period from 2018 to 2023 they denied the child the right to guidance from the father; and deprived the plaintiff of his constitutional and statutory right to care for their child under 35 Article 31(4) of the Constitution. Lastly, that the resulting act of separation of the child from her father and placement in the hands of the stranger violated both the rights of the child and the father in contravention of **Article 31(5) of the Constitution** and entitles the plaintiff to redress.

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I also find as a matter of law, that the correct procedure by the plaintiff $\mathsf{S}$ would have been to seek redress under Article 50(1) of the Constitution, which states:

"Any person who claims that a fundamental or other right or freedom guaranteed under this Constitution has been infringed or threatened, is $10$ entitled to apply to a competent court for redress which may include compensation." [Emphasis mine].

There is no need to delve into the procedural laws for enforcement of these rights, for this cause of action which is amenable to judicial review.

## (b) What are the appropriate remedies to compensate the Plaintiff for this violation?

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Counsel for the Plaintiff in their submissions maintained their claims for general damages, punitive damages and exemplary damages. They cited a number of authorities in support of their proposition specifically the requirement of compensation for a wrongful act of the defendant set forth in *Uganda Commercial Bank v Kigozi, 2002 1 EA 305*, and the principle of

- $25$ restitutio integrum, "that the plaintiff be restored as far as money can do it" set forth in Nasif Mujib & Another v Attorney General Civil Suit No. 160 of $2014.$ - In support of their claim for punitive damages, counsel characterised the 30 behavior of the defendant as deserving of this award for outrageous conduct and as a deterrence to similar actions in the future. Lastly, the plaintiff maintained their claim for exemplary damages, by stating the defendant's actions were so high handed and egregerious as to warrant further sanction beyond compensation. They cited in support of their 35 proposition, *Angella Katatumba v The Anti-Corruption Coalition of Uganda, Civil Suit No. 307 of 2022*, which restated the principle of award of exemplary damages, to the effect that "exemplary damages would be awarded for arbitrary and unconstitutional action by government officials." And second, "Where the conduct of the defendant is calculated to procure 40 some benefit at the expense of the Plaintiff."

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Counsel for the Defendant after admitting liability, stated they were tricked $\mathsf{S}$ by the mother of the child, Kilande Mercy who used her friend Rukundo Fiona to pick the child from the defendant school. Counsel also stated the child was recovered with the help of the school. I must state at the onset. this is a great improvement from the pleadings earlier reproduced in the brief facts. However, the remainder of the submissions in paragaph 1.3 $10$ which need not be reproduced here; are a vain attempt to induce court into a subjective analysis of what from court's findings in answering the first issue was a simple and plain vanilla violation of the plaintiff's rights. In conclusion, counsel for the defendant offered the plaintiff UGX 5 million as $15$ damages.

I have appreciated both submissions and in arriving at the awards below, taken the following into account. First, is the immense public interest in the matter, which restates for the record the clear hierarchy of the law in Uganda on matters pertaining to the rights and responsibilities of parents in Uganda.

Most importantly these rights belong to two parents (mother and father) and can only be taken away with the consent of both parents. Second, I must take into account the fact that the child was missing from the father for $25$ a period of 5 years. Under a different legal regime, other offences not before us would have led to guilty pleas or terms of imprisonment or both. Child abduction is a serious matter and this is what happened in this case. Third, I must emphasise the duty schools have to parents, that when in possession of the child, they are in loco parentis to the child, i.e. they act as 30 parents, nothing as drastic as what happened would have occurred if the father was informed that a stranger had come to pick his daughter from the defendants' school. This duty to inform the father was the defendant's who were in loco parentis in relation to the minor.

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On the positive part, the child is alive and healthy. Her disposition towards court was friendly, respectful and focused. I find the choice of her current education St. Immaculate's Heart Nyakibale, a great choice, as this institution has made more than its fair contribution to Uganda's civic, political, economic and social life. Nonetheless, the main action by the plaintiff commands court to grant redress under Article 50(1) of the Constitution.

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In respect of the violation of the plaintiff's constitutional rights, I make an award of UGX 25,000,000 (Twenty five million shillings) as general damages to compensate the plaintiff for the negligent acts of the defendants. This award is justified by the long period (five years), the father and the minor daughter were separated from each other by the acts of the $10$ defendant. There was an abuse of trust by the school. Our law and culture abominate the culture of child abduction and restraint must be exercised even in matters of grant of custody by court to one parent to the exclusion of the other. The role of the courts is to assist both parents in enjoying their parental rights, while meeting their parental duties, and responsibilities and not to take sides.

I award interest at the court rate from the date of judgment till payment in full. This award of general damages also compensates the plaintiff for the physical separation from his minor child, and the resulting emotional trauma inflicted upon him.

I find the admission of liability by the defendant in court sufficient cause to deny the claim for punitive damages [Emphasis mine].

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I also find that the claim of exemplary damages must also fail as a matter of law. The authorities cited by the plaintiff, on their own justify the denial of exemplary damages. There was unconstitutional action, actionable under Article 50, but not against government officials [emphasis mine]. Second, no actions by the defendant were calculated to procure some benefit at the $30$ expense of the plaintiff. The rule in Rookes v Barnard, 1964, UKHL 1, the leading case in English law on punitive damages cited by the plaintiffs, and also restated by the East African Court of Appeal in two decisions, Kiwanuka v Attorney General, (1965 EACA 19) and Visram & Khasan v Bhatt (1965 EA 789], accurately states the law on exemplary damages in East Africa. This 35 position is enunciated by Katureebe Bart J. S. C., as he then was in a paper entitled, Principles governing awarding damages in Civil Cases, presented in 2008 to an Induction Course for new Judges. I have no reason to depart from these principles.

As the plaintiff has proved his claim, I award him one half costs of the suit. Defendant should not be unduly punished, for the plaintiff's failure to agree

to terms. Also, defendant saved court's time by admitting liability, and $\mathsf{S}$ agreeing the plaintiff had a right to compensation.

## Comment:

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Uganda has strong family values, articulated in the constitution as the right to family, right to bear and raise children, and the rights of a child. Family life in most contexts, includes child-bearing and raising of children, whether in the context of marriage or outside marriage. The stigma of divorce therefore should not be visited on children. Recent legislation supports this view for example the 2022 amendments to the Succession Act, which begun treating uniformly all children of a decedent regardless of whether they are born in or outside wedlock. Second, are other laws that speak to the subject of the family, including the subject Act here, the Children Act. Ugandan laws no longer talk of legitimate and illegitimate children. The same applies to classification of parents according to their individual economic or social

status.

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The duty of loco parentis exists in a particular context, while schools may act as parents, they can not, and should never supplant the role of parents, $25$ whose rights are protected by our constitution. Often third parties, schools included get involved in matters that are the sole preserve of parents of the child. Second, the Probation and Welfare Officers must understand their role to promote the institution of the family rather than undermine it. The provision of family life, and remains the preserve of the parents, See the 30 decision of the UK Court of Appeal Civil Division in NA v Nottingamshire

"The provision of family life, was not, and by definition could not, be part of the activity of the local authority or the enterprise upon which it was engaged. Family life was not capable of being so regarded, because inherent it was a complete absence of external control over the imposition or arrangement of day to day family routine....................................

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County Council 2015 EWCA Civ 1139, where the Justices of Appeal stated,

This case was poorly managed by court because of the misapprehension of $\mathsf{S}$ the respective roles of the plaintiff, who was the father and the school to whom he had delegated parental responsibilities.

It is the earnest hope that these orders close out a protracted dispute, allow the plaintiff to focus on raising his daughter, and the defendants to repair $10$ their image which has been affected by this matter.

## Findings and Conclusions:

- 1. General damages in the amount UGX 25,000,000 (Twenty five 15 million shillings only). - 2. Interest at the court rate from the date of award till payment in full. - 3. I award one half costs of the suit to the plaintiff.

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I SO ORDER,

DATED AT KABALE this 11th day of June, 2025.

20160aan SSEMOGERERE, KAROLI LWANGA

JUDGE.

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