Nabukalu Florence v Ssemwanga Godfrey Lule (Miscellaneous Cause 4 of 2024) [2025] UGHC 363 (29 April 2025)

THE REPUBLIC OF UGANDA

ÌN THE HIGH COURT OF UGANDA AT LUWERO

HCT-17-FD-GA-004-2024

IN THE MATTER OF THE CHILDREN ACT CAP 62

AND

IN THE MATTER OF AN APPLICATION FOR A GUARDIANSHIP ORDER BY NABUKALU FLORENCE

NABUKALU FLORENCE :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

VERSUS

SSEMWANGA GODFREY LULE :::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

RULING

Background

This is an Application for Legal Guardianship of a sixteen-year old male child, Ssemwanga George William by his biological mother, Nabukalu Florence. The application was brought under Article 26(1) and139 of the Constitution of the Republic of Uganda, Section 14(1) and 33 of the Judicature Act, Sections 2, 3, 4, 5 & 43A of the Children Act, Section 98 of the Civil Procedure Act and Order 52 Rules 1 and 2 of the Civil Procedure Rules. The Applicant in the instant Application is seeking the following orders;

- i. The Applicant be granted a guardianship order in respect of Ssemwanga George William (minor). - ii. The Applicant be allowed to rent out the property situated in Kyegombwa village Kasaala Parish, Butuntumula subcounty in Luwero district for the minor's maintenance and welfare. - iii. The Respondent be directed to vacate the property in clause (ii) above. - iv. A permanent injunction restraining the Respondent from selling, mortgaging, donating or pledging as security any part of the subject property. - v. A protection order against the Respondent restraining and prohibiting the Respondent from any further harassment and violence against the Applicant. - vi. Costs of the Application.

In the affidavit in support of the Application, the Applicant states that she is the biological mother of the child while the Respondent is the biological father of the child. She also stated that much as she has stayed with the Respondent for the last twenty-one years, they have only been cohabiting and together, they have 3 children.


The child, Ssemwanga George William, is the registered owner of a kibanja comprised in Bulemezi county, Butuntumula Sub-county, Kasaala Parish, Kyegombwa village. The land was developed by both parents of the child and has thereon a residential house where the entire family has been staying. However, the mother of the child was evicted from the house by the father of the child, which, according to the Applicant, has made it difficult for her to take care of the children. It is for this reason that the Applicant has brought this Application seeking a guardianship order to enable her to rent out the suit property where her family is residing to enable her obtain resources to take care of her son, Ssemwanga George William.

Representation

The Applicant was represented by FIDA Uganda, Luwero office, while the Respondent was not represented.

Determination of the Application

It should be noted that the Respondent in this matter did not file an affidavit in reply to the Application, nor make any submissions to the claim made by the Applicant, despite being served with both the Chamber Summons and the hearing notice of this matter. The Respondent appeared once in Court on 1st April, 2025 and the matter was adjourned in his presence to 7th April, 2025. He did not appear in Court at the next hearing on 7 th April 2025 and on that date, court made an order for the matter to proceed exparte under Order 9 Rule 11 (2) of the Civil Procedure Rules. Further, since the facts and evidence on record have not been denied or controverted, it shall be taken that they are admitted. (See Speke Hotel 1996 Limited (T/A Speke Hotel Apartments Vs Sheila Nadege A. K. A Don Zella Miscellaneous Application No. 456 Of 2022)

I will adopt the submissions raised by the Applicants as stated below;

- 1. Whether it is in the child's best interests for the order to be granted. - 2. Whether the Applicant is suitable to be granted an order for legal guardianship. - 3. What remedies are available in the circumstances.

Issues 1 and 2

I will handle issues 1 and 2 jointly.

A perusal of the orders being sought demonstrates that this is an application to appoint a guardian in respect to the proprietary rights of a minor. It is trite law that for one to deal with the property of a minor, they must apply to the court to be appointed as a guardian of that minor. (*See IN THE MATTER OF ATUHEIRWE PAULINE MUHUMUZA HCTFD-MC-0010-2009; IN THE MATTER OF GUARDIANSHIP IN RESPECT TO THE PROPRIETARY RIGHTS OF ABUBAKAR LWANGA AND LWANGA ANISHA (MINORS) HCT-05-FD-MC-0031-2023.)*

This application is based on the fact that the minor is not yet of the requisite age to enter into transactions that are by law required to be done by a person who has attained a particular age.


When the court is determining an application to appoint a guardian in respect of the proprietary rights of a minor, it must, in my opinion, consider and interrogate the following;

- a) The age of the minor. - b) The relationship of the applicant to the minor. - c) The nature of the minor's property. - d) The purpose of the application. - e) The best interests of the minor.

I will now analyze the evidence on the court record guided by the considerations above;

a) The age of the minor

As I have already stated above, the Legal Guardianship Order being sought in this Application can only be granted by the court where a child is involved. Section 2 of the Children Act defines a child to mean a person under the age of 18 years. The evidence on court record in paragraph 2 of the affidavit in support as well as the birth notification of the child of Ssemwanga George William annexed as *Annexture D* proves that Ssemwanga George William was born on the 15th of May 2008 which makes him 16 years old. Ssemwanga George William is therefore below the age of 18 which qualifies him to be a child under the law. This means that this court has jurisdiction to consider this application for the appointment of a guardian for purposes of renting out the minor's property on behalf of the minor.

b) The relationship of the Applicant to the minor

The Applicant has stated in paragraph 2 of her affidavit in support that she is the mother of Ssemwanga George William which is also evidenced by the birth notification of the child marked as *Annexture D.* The applicant has attached her national identity card which is *Annexure A* to the affidavit in support of the application to prove that she is a Ugandan citizen. From the evidence adduced on court record, it is confirmed that the Applicant is the biological mother of Ssemwanga George William. Section 6(1) of the Children Act confers parental responsibility of the child on the Applicant who is his parent because it presumes that a parent will act in the best interests of the child by virtue of their relationship to him.

c) The nature of the minor's property

The evidence on the Court record in paragraph 10 of the affidavit in support of the application and annexure "G" thereon, shows that the subject property comprised in a Kibanja located in Bulemezi county, Butuntumula Sub county, Kasaala Parish, Kyegombwa village belongs to Ssemwanga George William. This means that any dealings in the land must have the input of the child since he owns the land. However, since the minor is not in a position to transact or give legally binding input with regard to the dealings on the land, it is prudent that a legal guardian is appointed to deal with the proprietary rights of the child and facilitate the dealings in the land if found necessary.


d) The purpose of the application

The evidence on court record in paragraph 15 of the affidavit in support of the Application is that the child was in senior one class. The Applicant further informed court that currently, the child is undergoing skill training in mechanics, a fact which was not contested by the Respondent, and as such shall be taken to be the correct position. The applicant contends that she wants to rent out the property and use the proceeds to cater for the minor's welfare, meet his education fees and other basic needs. The Applicant further states that she has been single-handedly providing for the child's welfare since her husband has been engaging in alcoholism and gambling coupled with being violent towards the Applicant and has also threatened violence towards the children. I consider the purpose of this Application worthwhile since it is focusing on raising money to cater for the child's welfare and his education.

e) The best interests of the minor.

Section 3 (1) of the Children Act states that the welfare of the child shall be the paramount consideration whenever determining any question in respect of the upbringing of a child, the administration of a child's property or the application of any income arising from that administration. This necessitates considering the evidence on record and, where it is possible, interacting with the children to obtain their views. The interaction with the children who can speak and understand is important because it also enables the children to know that there is an application to deal with their property.

I have taken note of the special circumstances revolving around this case. First of all, I have noted that there are aspects of domestic violence that have manifested in the evidence before this Court. The Applicant and the children have been subjected to domestic violence by the Respondent who happens to be the father of the child. This violence can be attributed to alcoholism on the part of the Respondent. I have also noted that it has become difficult for the child to reside in the home in the absence of his mother, the mother having been evicted from the home by the Respondent.

Section 3 (3) of the Children Act states that in determining any question concerning the welfare of the child, the court shall have regard to the physical, emotional and educational needs of the child. Pursuant to above provision, I must state that with the current strife in the family, the physical and emotional state of the child is at very high risk of being affected. Raising a child in a family that is characterized by alcoholism, domestic violence, and possible emotional violence will most likely have a negative effect on the upbringing of the child. Further, it is in the interests of the child that he continues with his educational journey to enable him acquire the knowledge and skill that will nurture him into a responsible member of society.

In conclusion, I find that this is a befitting application for this court to exercise its inherent power to grant a remedy for the good of the child by appointing the applicant as a legal guardian in respect to the proprietary rights of the minor.

Page 4 of 5

Issue 3: What remedies are available in the circumstances?

This Application for legal guardianship of Ssemwanga George William is granted and I hereby make the following orders;

- i. That the Applicant is hereby appointed as the legal guardian of Ssemwanga George William from the date of delivery of this ruling to the 15th day of May 2026, when the child shall become an adult. - ii. The Applicant is authorized to rent out the property comprised on the Kibanja located in Bulemezi county, Butuntumula Subcounty, Kasaala Parish, Kyegombwa village that belongs to Ssemwanga George William. - iii. The Applicant shall use the rental income obtained from the suit property to get an alternative decent home for Ssemwanga George William and cater for the education and welfare of Ssemwanga George William. - iv. The Respondent is hereby ordered to vacate the property comprised on the Kibanja located in Bulemezi county, Butuntumula Sub county, Kasaala Parish, Kyegombwa village that belongs to Ssemwanga George William. - v. A permanent injunction is hereby issued against the Respondent restraining him from selling, mortgaging, donating or pledging as security any part of the Kibanja located in Bulemezi county, Butuntumula Sub county, Kasaala Parish, Kyegombwa village that belongs to Ssemwanga George William.

I so order.

…………………………………………………………………………………..

FARRIDAH SHAMILAH BUKIRWA NTAMBI

AG. JUDGE

Delivered on ECCMIS on 29th April 2025.