Babirye & Another v Nakiranda & 4 Others (Civil Suit 15 of 2022) [2024] UGHCFD 44 (20 May 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)

# **CIVIL SUIT NO. 015 OF 2022** (ARISING OUT OF FAMILY CAUSE NO. 295 OF 2013)

| | $\mathbf{2}$ | FLORENCE BABIRYE JENNIFER LUBUGA | <pre>!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!</pre> | | |----|----------------|--------------------------------------------|-------------------------------------------------|--| | 15 | | VERSUS | | | | | | NAKIRANDA MARIAM | | | | | $\mathbf{2}$ . | RASHID LUSWA T/A BETHEL HOUSE ORPHANAGE | | | | | | JAMIN JOHN MOHLER | DEFENDANTS | | | | | KARA DAWN MOHLER | | | | 20 | | THE ATTORNEY GENERAL | | |

### Before: Hon. Lady Justice Dr. Christine A. Echookit

### RULING ON A PRELIMINARY OBJECTION

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## **BACKGROUND:**

The 1st plaintiff is the biological mother of Tibagerwa Rose Patience. The 2nd plaintiff is the biological mother of Fatia Jimbo and Hamuza Kirya. The plaintiffs and the 1st defendant are biological sisters. It is the plaintiffs' case that the said children were in the habit of living with their aunts from time to time; and that while the children of the plaintiffs stayed with the 1st defendant, the defendants jointly and/or severally changed the children's names as follows; Tibagerwa Rose Patience became Nalubega Patience. Fatia Jimbo became Namatovu Margaret and Hamuza Kirya became Kasozi Kenneth.

The plaintiffs claim that on or about the 17th day of July 2013, the 1st defendant connived with a 35 one William Kigwana, the Local Council Chairperson of Kamwanyi LC, Mpunge Parish in Mukono District to author a letter falsely claiming that the 3 children were orphans born to the 1st defendant as their biological mother and Godfrey Bukenya as their late father. The plaintiffs

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allege that a one James Ntege the Senior Probation Officer of Mukono Probation and Welfare $\mathsf{S}$ Office also connived with the 1st defendant in like manner; and subsequently, false birth certificates for the 3 children were obtained.

The plaintiffs further allege that the $2^{nd}$ defendant connived with the $1^{st}$ defendant and obtained a care order from the Chief Magistrate's Court in respect of Nalubega Patience vide Family 10 Cause No. 133 of 2013, Kasozi Kenneth vide Family Cause No. 134 of 2013 and Namatovu Margaret vide Family Cause No. 139 of 2013. They claim that the 1st and 2nd defendants wrongfully, illegally and fraudulently purported to consent to the application for and the grant of a legal guardianship order in respect of the all children to the $3rd$ and $4th$ defendants. Consequently, on 18th day of November 2013, court granted legal guardianship of the 3 children 15 to the 3rd and 4th defendants who then took the 3 children to the United States of America.

In her defence, the 1st defendant stated that the plaintiffs agreed to have their 3 children taken to the orphanage (of the $2^{nd}$ defendant) for purposes of better education and that the plaintiffs agreed to change of names of the children. The 2nd defendant stated that the 2nd defendant took 20 the 3 children to his orphanage and agreed to their adoption by the 3rd and 4th defendants; that the children were then taken by the 3rd and 4th defendant to the United States of America where they were adopted; and that it was later in 2015 that he discovered at Kayunga Police Station where the 1st defendant had been detained that she was not the biological mother of the 3 children. 25

Counsel for the defendant then raised a Preliminary Objection on the jurisdiction of this court as against the $3rd$ and $4th$ defendants.

#### HEARING AND REPRESENTATION: 30

The plaintiffs were represented by counsel Ssawava Beatrice holding brief for counsel Katushabe Edrine. Counsel Kabonesa Evelyn Hellen represented the defendants. Written submissions on the Preliminary Objection were filed for the 3rd and 4th defendants.

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### ISSUES FOR THE DETERMINATION OF THIS COURT:

1. Whether the $3rd$ and $4th$ defendant submit to the jurisdiction of this court.

# DETERMINATION OF THE ISSUE BY THIS COURT:

It was submitted for the 3rd and 4th defendants that they were not at any time resident in Uganda 10 nor have they worked for gain or done business in Uganda so as to be subject to the jurisdiction of this court as envisaged under section 15 of the Civil Procedure Act. The 3rd and 4th defendants also contend that the adoption orders for the children given in the United States override the guardianship order granted by Uganda.

I find this issue quite intriguing in the sense that the $3rd$ and $4th$ defendants obtained legal guardianship over the three children in Uganda and now when the issue of propriety of the guardianship is being questioned, they contend that they are not subject to the jurisdiction of this court and that the adoption order in the United States overrides the legal guardianship order obtained in Uganda. If such reasoning where to be adopted, then no court would be able to investigate circumstances such as in this case, where the plaintiffs who claim to be biological

mothers of the minors who were allegedly fraudulently adopted by other persons, cannot find justice.

For clarity, I will herebelow quote section 15 of the Civil Procedure Act. The said section 25 provides;

# "15. Other suits to be instituted where defendants reside or cause of action arises

Subject to the limitations in section 11 to 14 every suit shall be instituted in a court within the local limits of whose jurisdiction—

(a) the defendant or each of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain;

(b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, if in such case either the leave of the court is given, or the defendants who do not reside or carry on business, or personally work for gain, as provided in paragraph (b), acquiesce in that *institution; or*

## (c) the cause of action, wholly or in part, arises.

Explanation 1 - Where a person has a permanent dwelling at one place and also a temporary residence at another place, he or she shall be deemed to reside at both places in respect of any cause of action arising at the place where he or she has the temporary residence.

Counsel for the 3rd and 4th defendants quoted Explanation 1 above to support their contention that the 3rd and 4th defendants were not at any time resident in Uganda nor have they worked for gain or done business in Uganda.

Granted that section 15 of the Civil Procedure Act provides that jurisdiction is determined by residence or where a person has worked for gain or done business, it is clear from the said provision that, that is just one facet of jurisdiction - the other is provided in paragraph (c) which provides for where *the cause of action*, wholly or in part, arises.

It is evident from the facts of this case that the 3rd and 4th defendants obtained legal guardianship over the 3 minors in this court; and the said guardianship order is being contested by the plaintiffs. The 3rd and 4th defendants cannot conveniently now state that this court has nothing to do with the 3 minors whom they have adopted under the United States law. To allow such reasoning would be to negate the principles of law that enable a matter to be interrogated where the cause of action arose. Indeed, the adoption in the United States is premised on the legality

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of the legal guardianship granted in Uganda. The 2 cannot be separated. Hence, in order to $\mathsf{S}$ interrogate the propriety of the legal guardianship, this court is bound by law to allow the main suit to proceed to be heard.

### **CONCLUSION:**

- In the premises, I overrule the preliminary objection raised by the 3rd and 4th defendants and 10 order that; - a) The 3rd and 4th defendants be and are hereby subject to the jurisdiction of this court for purposes of the suit in regard to the propriety of their legal guardianship over the 3 minors to wit Nalubega Patience, Kasozi Kenneth and Namatovu Margaret now changed to Hadassah Nalubega Mohler, Judah Nole Kasozi Mohler and Maizie Jo Namatovu Mohler after adoption. - b) The suit shall be set down for hearing. - I so order. 20

Dated at Kampala this.................................... .2024.

Hon. Lady Justice Dr. Christine A. Echookit Judge.

The right of appeal explained.