Wakilii

Solamalay v Solamalay (Civil Case No. 147 of 1941)

East African Court of Appeal · [1941] EACA 47 · 1940 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by notice of motion for custody of child under Custody of Children Ordinance, 1926
Decision
Application dismissed for improper procedure

Observed later treatment

No later-treatment classification is recorded for this judgment.

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AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court held that sections 3-6 of the Custody of Children Ordinance, 1926 do not provide for any new procedure in making custody applications. The proper procedure for a father to enforce his right as guardian to custody of his children is by writ of habeas corpus or by petition, not by notice of motion. The application was dismissed as not properly instituted.

Outcome

Application dismissed for improper procedure

Facts

The applicant father sought custody of his child Louis Phillipe Solamalay by way of notice of motion intituled under the Custody of Children Ordinance, 1926. He asked that the child be taken from the mother's custody and committed to his custody or to other named persons. The mother, served as respondent, objected that the application was not properly founded under the Ordinance. The applicant relied on section 3 of the Ordinance which refers to applications for writs or orders for production of a child.

Issues

  1. Whether an application by notice of motion is the proper procedure for a father to enforce his right to custody of his child under the Custody of Children Ordinance, 1926.
  2. Whether sections 3, 4, 5 and 6 of the Custody of Children Ordinance, 1926 provide for a new procedure for making applications to the Court.

Orders

  • Application dismissed with costs.

Rules and key headnotes

Family Law — Custody of Children — Procedure for Custody Applications
The proper procedure for a father to enforce his right as guardian by nature and nurture to the custody of his children is by writ of habeas corpus or by petition, not by notice of motion.
Statutory Interpretation — Effect of Legislation — Enlargement of Powers versus New Procedure
Sections 3, 4, 5 and 6 of the Custody of Children Ordinance, 1926, which are taken from the Custody of Children Act, 1891, enlarge the powers of the court on applications for writs or orders for production of a child but do not legislate for any new procedure in making applications to the court.
Civil Procedure — Notice of Motion — Applications to Institute Suit
Applications under Order XLVIII, rule 1 of the Civil Procedure Rules are applications in a suit, not applications purporting to institute a suit.

Legislation cited (9)

  • Custody of Children Ordinance 1926 s.3
  • Custody of Children Ordinance 1926 s.4
  • Custody of Children Ordinance 1926 s.5
  • Custody of Children Ordinance 1926 s.6
  • Custody of Children Ordinance 1926 s.7
  • Custody of Children Ordinance 1926 s.8
  • Custody of Children Ordinance 1926 s.9
  • Kenya Order in Council 1921 art.4(2)
  • Civil Procedure Rules Order XLVIII r.1

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Solamalay v Solamalay (Civil Case No. 147 of 1941) [1940] EACA 47 (1 January 1940)
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.