Lubega Joseph Wasswa v Judith Tuhaise (FC Guardianship Application 54 of 2023) [2024] UGHC 35 (31 January 2024)

| $\mathbf{2}$ | THE REPUBLIC OF UGANDA | |----------------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | $\overline{4}$ | IN THE HIGH COURT OF UGANDA AT KAMPALA<br>(FAMILY DIVISION) | | 6<br>8 | <b>LEGAL GUARDIANSHIP CAUSE NO. 54 OF 2023</b><br>(ARISING FROM FAMILY CAUSE NO. 151 OF 2020) | | 10 | IN THE MATTER OF THE CHILDREN ACT CAP 59 (AS AMENDED) | | 12 | IN THE MATTER OF CHILDREN LUBEGA JEROME HANNINGTON AGED 10 YEARS<br>AND LUBEGA JOHANNA ELSIE AGED 12 YEARS | | 14 | LUBEGA JOSEPH WASSWA :::::::::::::::::::::::::::::::: | | | <b>VERSUS</b> | | 18<br>20 | JUDITH TUHAISE :::::::::::::::::::::::::::::::::::: | | | Before: HON. LADY JUSTICE DR. CHRISTINE A. ECHOOKIT | | 22 | | | 24 | <b>RULING</b><br><b>BACKGROUND:</b> | | 26 | The Petitioner petitioned for Legal Guardianship of 2 minors viz. Lubega Jerome Hanington<br>and Lubega Johanna Elsie. The petitioner was brought under Sections 3, 43A and 43B of the<br>Children Act and Section 98 of the Civil Procedure Act. The petition is supported by an affidavit | | $\mathbf{S}$ | sworn by the Petitioner. | | 30 | <b>HEARING AND REPRESENTATION:</b> | | | The Petitioner was represented by M/s Shonubi Musoke & Co. Advocates while the | | 32 | Respondent was represented by Counsel Susan Nabatte. The Petitioner filed written<br>submissions. | | 34 | | | | <b>ISSUES FOR THE DETERMINATION OF THIS COURT:</b> | | 36 | 1. Whether the Petitioner has furnished sufficient cause for grant of Legal quardianship to him. |

Whether costs should be provided for. $\scriptstyle\scriptstyle\rm IIIIII$ 38

DETERMINATION OF THE ISSUE BY THIS COURT

- Issue 1: Whether the Petitioner has furnished sufficient cause for grant of Legal 40 guardianship to him. - Section 3 and the 1^st Schedule of the Children Act stipulates welfare and guiding principles for 42 a child. These include the child's physical, emotional and educational needs. Section 4 of the Children Act sets out the rights of a child, which includes the right to express his or her views, 44 belief or opinion on any matter that affects his or her wellbeing. Under section 5 of the Children Act, it is the duty of a parent, guardian or any person having custody of a child to maintain that 46 child. This goes with parental responsibility under section 6 of that Act.

Under Section 43A of the Children Act, an application for Legal guardianship can be made by a citizen of Uganda, which Lubega Joseph Wasswa is as shown in his petition. In MA. No. 004 50 of 2017 at Arua High Court, Hon. Justice Stephen Mubiru stated in his ruling that a guardian is a person who is given power to make decisions for another person because he or she is 52 considered not competent to decide for himself or herself. A guardian must always act in the best interest of the ward. The Petitioner cited the case of; In Re: Deborah Joyce Alitubeera & 54 Richard Masaba (Civil Appeal No. 70 of 2011) [2012] UGCA 4 which also supported the best interest of the child as the primary consideration in all actions concerning children. 56

Lubega Joseph (as called Lubega Joseph Wasswa in the petition) is the biological father of the 58 2 minors Lubega Jerome Hannington (11 years old) and Lubega Johannah Elsie (13 years old).

The original birth certificates of the 2 minors were presented in court as was a NIRA Form 1 of 60 notification of change/error in the information in the register, whose intent is to apply for change of father's name to add "Waswa". The Petitioner relied on the case of; In the Matter of an 62 Application for Guardianship by Nakazindo Dorothy (Family and Children's Cause No. 1 of 2022) [2022] UGHCFD 2, in support of the argument that a biological parent of a minor is a 64 $\overline{q}$ suitable person for the grant of guardianship, in the best interest of the minor.

In his petition, the Petitioner stated that he and the Respondent executed a divorce decree nisi. A divorce consent judgement was attached to Petitioner's affidavit in support of the petition and 68 was endorsed by court on 14^th of March 2023. The terms of the consent judgement included that the matrimonial property consisting of kibanja land with a house and boys' quarters 70 (measuring approximately 180ft x 149ft and another land of approximately 100ft x 84ft, both situate at Bukasa A- Biira, Temangalo, Kiira Municipality, Wakiso District), be held by the 72 Petitioner in trust for the benefit of the 2 minors until their transfer into their names when they reach majority age. 74

Court required production of the sale agreements for the said 2 kibanjas to show that they were $76$ indeed bought by the parties. An agreement of 11^th September 2011 in respect of the land measuring 180ft x 149ft was presented; and the agreement of 2^nd January 2014 in respect of 78 the land measuring 100ft x 94ft were presented to court. The buyer in both agreements is stated as Lubega Joseph Wasswa the Petitioner. 80

The Petitioner relied on the authority of; In Re Adriko Reuben (a Minor) (Miscellaneous Civil 82 Application No. 8 of 2016 [2016] UGHCFD 10, where it was held that when appointing a guardian, court ought to consider the capabilities and potential conflict of interest of the 84 proposed guardian. He submitted that he is gainfully employed by La Cedri Bureau De Change. His employment identity card issued on 26^th of February 2022 and expiring on 31^st December $\omega$ 6 2024, as well as his national identity card with NIN CM82100101QFH expiring on 27th of November 2024, were shown. Both identity cards bear the name Lubega Joseph Wasswa. The 88 Petitioner's employment contract with La Cedri Bureau De Change dated 31^st December 2023 for the duration of another one year as a Volt Manager/General Duties, was also shown. 90

The Petitioner also stated that he is a law abiding citizen with no criminal record. He showed a 92 clearance certificate dated 31^st of May 2023 and a certificate of good conduct by the Uganda $\mathbf{Q}$ Police Force. There is also attached to the affidavit in support of the petition, a recommendation 94 by the Welfare and Probation Officer of Wakiso District Local Government dated 2^nd May 2023

recommending the Petitioner for grant of guardianship on the ground that he is the biological 96 father of, and sole provider for, the 2 minors, and that he is a fit and proper person for the grant.

The Respondent who is also the mother of the 2 minors wrote a letter to court dated 24th of January 2024 stating her consent to guardianship by the Petitioner in the terms of the divorce 100 consent judgement.

It is evident, therefore, that the Petitioner has the best interest of the 2 minors at heart as he applies for guardianship in respect of the 2 kibanjas, and that the welfare of the minors is being 104 taken care of by the parents. This Court is possessed of inherent powers under section 98 of the Civil Procedure Act to make such orders as may be necessary for the ends of justice or to 106 prevent abuse of the process of Court. Under section 33 of the Judicature Act, I am pleased to grant the application as it is in the best interest of the minor. 108

Issue 2: Whether costs should be provided for 110

Considering that this application concerns the welfare of the children of the 2 parties, and that there seems to be no contention between them, I will not make any order as to costs. 112

CONCLUSION: 114

In the premises, I hereby order that:

- a) The Petitioner (Lubega Joseph Wasswa also known as Lubega Joseph in the children's 116 birth certificates) be and is hereby granted legal guardianship over the 2 minors Lubega Jerome Hannington (11 years old) and Lubega Johannah Elsie (13 years old). 118 - b) The matrimonial property consisting of kibanja land with a house and boys' quarters 120 (measuring approximately 180ft $x$ 149ft and another land of approximately 100ft $x$ 84ft, both situate at Bukasa A- Biira, Temangalo Kira Municipality, Wakiso District), shall be 122

held by the Petitioner in trust for the benefit of the 2 minors until their transfer into the names of the 2 minors when they reach majority age.

c) There is no order as to costs. 126

I so order. 128

Delivered on this 31^St day of Tanvay $\ldots\ldots2024.$ 130

Lady Justice Dr. Christine A. Echookit

Judge. 134

$\mathcal{L}$

The right of appeal explained. 136