Wakilii

Re M(an infant)

Supreme Court · [1995] UGSC 16 · 1995 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Appeal to the Supreme Court from the High Court's dismissal of an adoption petition
Decision
Adoption order granted in favour of the appellants; High Court ruling set aside

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Holding

The Supreme Court held that the word 'resident' in section 4(5) of the Adoption of Children Act, being undefined, must be construed liberally and purposively in light of the Act's object of promoting the welfare of the infant. Ugandan citizens who own and keep a permanent home in Uganda but work temporarily abroad remain resident in Uganda for adoption purposes; a person may have more than one residence, and temporary absence does not destroy residence. The High Court erred in following the restrictive English authority and holding that the appellants, who maintained a permanent home at Bbunga while employed abroad, were not resident in Uganda. The appeal was allowed and an adoption order substituted.

Facts

The infant was orphaned: his mother was killed by his father in 1987, and the father died on remand in 1988 awaiting trial for the murder. With no traceable relatives, a magistrate committed the infant to Sanyu Babies Home in Kampala. In 1989 the Buganda Road Magistrate's Court committed the infant to the care of the appellants, a married couple, who fostered him thereafter. The first appellant, Fredrick Kiyingi, was employed by UNIDO in Austria, where the couple lived with the infant, but they owned a permanent home at Bbunga near Kampala and returned to Uganda on leave each year. In 1994 the appellants petitioned the High Court for an adoption order. Byamugisha J found the appellants and infant were Ugandan citizens of the requisite ages, the parents' consent was unobtainable (deceased), and adoption would be for the infant's welfare, but dismissed the petition on the sole ground that the appellants and infant were not resident in Uganda within section 4(5) of the Adoption of Children Act.

Issues

  1. Whether the appellants and the infant were resident in Uganda within the meaning of section 4(5) of the Adoption of Children Act (Cap 216), so as to qualify for an adoption order.
  2. What meaning should be given to the word 'resident' in section 4(5) of the Adoption of Children Act.

Orders

  • Appeal allowed.
  • Ruling of the High Court (Byamugisha J) set aside.
  • Adoption order granted to the appellants.
  • Appellants to bear the costs of the appeal.

Key headnotes

Family Law — Adoption — Residence requirement under section 4(5) of the Adoption of Children Act
The residence requirement in section 4(5) of the Adoption of Children Act requires only some substantial presence in, or permanent connection with, Uganda; a Ugandan citizen who keeps a permanent home in Uganda but works temporarily abroad remains resident in Uganda and qualifies to adopt.
Statutory Interpretation — 'Residence' — Liberal and purposive construction of an undefined statutory term
Where 'resident' is not statutorily defined, residence is a question of fact to be determined on the circumstances of each case, and the term must be construed according to the object and intent of the particular legislation rather than by importing a meaning given to it under a different statute.
Family Law — Adoption — Welfare of the infant as paramount consideration
In adoption proceedings, as in other matters relating to children, the best interests and welfare of the child are the paramount consideration, and the provisions of the Adoption of Children Act should be interpreted liberally to enhance the benefit and protection of infants to be adopted.
Statutory Interpretation — Residence — A person may have more than one residence
A person may have two or more residences and reside in each; a temporary presence does not by itself create residence, and a temporary absence, depending on the circumstances, does not deprive a person of an established residence.

Legislation cited (6)

  • Adoption of Children Act (Cap 216) s.4(5)
  • Adoption of Children Act (Cap 216) s.5(b)
  • Adoption of Children Rules, Form I
  • British Adoption Act 1950 s.2(5)
  • National Assembly (Election) Act
  • Resistance Councils and Committees (Elections) Regulations 1989 reg.15

Cases cited (13)

  • Re an Adoption Application [1951] 2 All E.R. 930
  • Re an Adoption Application [1952] 1 Ch 16
  • Fox v Stirk [1970] 3 All E.R. 7
  • Sinclair v Sinclair [1967] 3 All E.R. 882
  • Opoya v Uganda [1967] E.A. 745
  • Re W (1946) (unreported)
  • Re W. Bowie Exp. Bruell, 16 ChD.484
  • Commissioner General of Income Tax v Noorani [1969] E.A. 685
  • Waseru v Kiromo [1969] E.A. 172
  • Sir George Armoutoghi v Commissioner of Income Tax [1967] E.A. 312
  • Partington vs. Partington
  • R v Fermanagh Justices [1897] 2 I.R. 563
  • Adoption Cause No. 1 of 1993, in the matter of Yvonne Kamahuna (An Infant)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.