Court name
High Court of Uganda
Case number
Civil Appeal-2019/42
Judgment date
28 September 2020

OlwenyAlfred v Otema (Civil Appeal-2019/42) [2020] UGHC 187 (28 September 2020);

Cite this case
[2020] UGHC 187
Short summary:

Family Law — Child Adoption under customary law — the extended family set-up is an integral part of Uganda’s societal structure, under which it is the norm that the child should, as far as possible, be kept within his or her extended family or community of origin, in order to grow up in a loving, stable and permanent family environment instead of an institution — Generally, customary adoption is the cultural practice in which a child is raised by a person who is not the child’s biological parent, according to the customary law of the family’s community — The adoption of children under customary law is a loose, informal arrangement whereby children were taken in by relatives or friends, to care for and bring up as their own — Although adoptions under customary law do not necessarily sever the parent-child relationship, where the arrangement prevails up to the death of the person assuming control over the child, depending on the circumstances and the relevant customs, the child may be allowed to inherit from the deceased estate — If Court is satisfied that a given adoption complies with the community’s customs, the child will be entitled to the same status and rights under The Succession Act as would be afforded to the adoptive parents’ biological or legally adopted children — where a man who is not the natural father of the child born to the woman he marries takes in the child as well and at the time of marriage the husband expressly or by conduct declares that he is marrying the mother together with the child, and the child then moves into the matrimonial home with his or her mother as the child of the husband upon the marriage of the mother, with no evidence of the child maintaining ties with his or her biological relatives, the child will be entitled to assert all the rights a child can against his or her father, including the right to inherit his or her father’s estate as an intestate heir.

Succession — section 191 of The Succession Act — No right to any part of the property of a person who has died intestate may be established in any court of justice, unless letters of administration have first been granted by a court of competent jurisdiction — However in equity, a beneficiary may seek relief against a third party if the administrator is unable or unwilling to act — Gift inter vivos — It involves an owner parting with property without pecuniary consideration. It is essentially a voluntary conveyance of land from one person to another, made gratuitously, and not upon any consideration of blood or money. A gift inter vivios of land may be established by evidence of exclusive occupation and user thereof by the donee during the lifetime of the donor. A gift is perfected and becomes operative upon its acceptance by the donee and such exclusive occupation and user may suffice as evidence of the gift. — Three elements are essential in determining whether or not a gift has been made: delivery, donative intent, and acceptance by the donee. A valid gift requires a manifest intention of the donor to give and an unconditional delivery of the thing given. Delivery and expression of donative intent need not be contemporaneous; delivery may precede the formation of the donor's intent. — Intent is a subjective state, thus intent to make a gift is essentially determined by the donor's words. In absence of express words, it is inferred from immediate and existing circumstances in terms of a belief about what the actor wanted to do—section 2 (g) of The Succession Act — Dependent relative —The question of dependence or no dependence, whole or partial, is a question of fact. Each case has to be considered in light of the individual circumstances. The economic link between the recipient and the deceased must be in the nature of support, which is not limited to financial provision to meet economic needs and contingencies, but includes the provision of sustenance, shelter and other necessaries, which support must be relied upon by the recipient.

Coram
Mubiru, J

 

IN THE HIGH COURT OF UGANDA SITTING AT GULU

Reportable

Civil Appeal No. 0042 of 2019 In the matter between

  1. OLWENY ALFRED
  2. APPELLANTS

    OROMAALEX

And

OTEMA WILFRED                                                                                            RESPONDENT

Heard: 23 June, 2020.

Delivered: 28 September, 2020.

Family Law — Child Adoption under customary law — the extended family set-up is an integral part of Uganda’s societal structure, under which it is the norm that the child should, as far as possible, be kept within his or her extended family or community of origin, in order to grow up in a loving, stable and permanent family environment instead of an institution — Generally, customary adoption is the cultural practice in which a child is raised by a person who is not the child’s biological parent, according to the customary law of the family’s community — The adoption of children under customary law is a loose, informal arrangement whereby children were taken in by relatives or friends, to care for and bring up as their own — Although adoptions under customary law do not necessarily sever the parent-child relationship, where the arrangement prevails up to the death of the person assuming control over the child, depending on the circumstances and the relevant customs, the child may be allowed to inherit from the deceased estate — If Court is satisfied that a given adoption complies with the community’s customs, the child will be entitled to the same status and rights under The Succession Act as would be afforded to the adoptive parents’ biological or legally adopted children — where a man who is not the natural father of the child born to the woman he marries takes in the child as well and at the time of marriage the husband expressly or by conduct declares that he is marrying the mother together with the child, and the child then moves into the matrimonial home with his or her mother as the child of the husband upon the marriage of the mother, with no evidence of the child maintaining ties with his or her biological relatives, the child will be entitled to assert all the rights a child can against his or her father, including the right to inherit his or her father’s estate as an intestate heir.

Succession — section 191 of The Succession Act — No right to any part of the property of a person who has died intestate may be established in any court of justice, unless letters of administration have first been granted by a court of competent jurisdiction — However in equity, a beneficiary may seek relief against a third party if the administrator is unable or unwilling to act — Gift inter vivos — It involves an owner parting with property without pecuniary consideration. It is essentially a voluntary conveyance of land from one person to another, made gratuitously, and not upon any consideration of blood or money. A gift inter vivios of land may be established by evidence of exclusive occupation and user thereof by the donee during the lifetime of the donor. A gift is perfected and becomes operative upon its acceptance by the donee and such exclusive occupation and user may suffice as evidence of the gift. — Three elements are essential in determining whether or not a gift has been made: delivery, donative intent, and acceptance by the donee. A valid gift requires a manifest intention of the donor to give and an unconditional delivery of the thing given. Delivery and expression of donative intent need not be contemporaneous; delivery may precede the formation of the donor's intent. — Intent is a subjective state, thus intent to make a gift is essentially determined by the donor's words. In absence of express words, it is inferred from immediate and existing circumstances in terms of a belief about what the actor wanted to do—section 2 (g) of The Succession Act — Dependent relative —The question of dependence or no dependence, whole or partial, is a question of fact. Each case has to be considered in light of the individual circumstances. The economic link between the recipient and the deceased must be in the nature of support, which is not limited to financial provision to meet economic needs and contingencies, but includes the provision of sustenance, shelter and other necessaries, which support must be relied upon by the recipient.

JUDGMENT

STEPHEN MUBIRU, J.

Introduction:

The respondent sued the appellants jointly and severally seeking recovery of approximately six acres of land, situated at Goromoro village, Abakadyak Parish, Padibe West sub-county, in Lamwo District, a declaration that he is the rightful owner of the land, general damages for trespass to land, mesne profits, a permanent injunction and the costs of the suit. The respondent’s claim was that he inherited the land in dispute from his late father Okwera Charles. The respondent enjoyed quiet possession and use of the land until the month of February, 2010 when the appellants, without any lawful claim of right, forcibly entered onto the land and stopped his labourers from constructing his house on the land.

In their respective written statements of defence, the appellants contended that their late father Odera Benjamin was the brother of the respondent’s late father Okwera Charles alias Okoi. Upon the death of Odera Benjamin during the year 1986, the appellants’ mother, Abwo Ajulata, was inherited by the respondent’s late father Okwera Charles alias Okoi. Being minors at the time, aged four years and three years respectively, the respondents were thereby raised by Okwera Charles alias Okoi as their adoptive father. The appellants lived on the land in peace together with the respondent until the year 2012 when the respondent began his attempts to evict them from the land claiming they are not beneficiaries of the estate of the late Okwera Charles alias Okoi, a claim they refute.

The appellant's evidence in the court below:

D.W.1 Olweny Alfred testified that he would not go anywhere else because Okwera Charles alias Okoi brought them to that land together with their mother while they were still minors. He left them on the land at even at the time of his death. They vacated the land in 1997 due to insurgency but returned when it ended. It is on the morning of 5th April, 2012 that the respondent asked them to leave the land. He lives with his mother because he provides for her. D.W.2 Oroma Alex testified that the late Okwera Charles alias Okoi inherited their mother and brought them together with her to the land in dispute. Their mother was given about an acre of that land and it is on the land they were living when during the year 2012 the respondent asked them to vacate. The respondent left the land allocated to his own mother.

D.W.3 Anjulata Labwo testified that the land in dispute belonged to Okwera Charles alias Okoi. The appellant’s father Odera Benjamin died during the year 1985. By the time she was inherited and came to live with Okwera Charles alias Okoi the first appellant was four-year-old while the second appellant was three years old. They had lived together for ten years when Okwera Charles alias Okoi died. He had four daughters with her. Initially she had a house across the road but when it caught fire and burnt in the year 1987, she was brought to live on the land in dispute. She initially lived in a house that belonged to the respondent’s mother but later a house of her own was constructed for her. She does not want the appellants to leave because she is their mother.

D.W.4 Ayaa Coney testified that the respondent is her brother, and so are the appellants. At the time of his death, her father Okwera Charles alias Okoi left the appellants on the land in dispute. The appellant’s farther was Odera Benjamin while her father is Okwera Charles alias Okoi but they have the same mother, D.W.3 Anjulata Labwo.

The respondent's evidence in the court below:

P.W.1 Otema Wilfred testified that the appellants used to live with their father at Kakira before his death. Upon the death of the appellant’s father, his late father Okwera Charles alias Okoi inherited their mother, Anjulata Labwo, and brought them to live with him at Ngoromoro South village. He constructed for her a hut across the road, at a distance of about 300 meters from his home. He had four daughters of his own with her. The appellants’ mother’s house caught fire during the year 1995 whereupon the late Okwera Charles alias Okoi allowed them to occupy one of the respondent’s mother’s houses. Okwera Charles alias Okoi was abducted and died in South Sudan during the year 2006. Insurgency forced the family an IDP Camp during the year 2007 but on return therefrom during the year 2010, the appellants constructed two huts of their own on the land in dispute, and a third one for their mother. They occupied between four to six acres of the land and opened up gardens. They are using that part as well as the other that had been given to their mother. Now that they are adults, the appellants should return to their father’s land in Kakira, about four kilometres away. His and the appellants’ father were only members of the same clan, Loi Clan, not biological brothers. It is only his step mother, the appellants’ mother, and the four sisters his father begot with the appellants’ mother that should remain on the land.

P.W.2 Okee Charles testified that he is a brother of the late Okwera Charles alias Okoi. The respondent’s father Okwera Charles alias Okoi married the appellant’s mother Anjulata Labwo and brought her from Lotibol in Padibe East. She initially resided on the rocky land opposite their but when her hut caught fire, their father brought her to the land now in dispute. The dispute began when the appellants began to build on land that was not allocated to their mother. The appellants should either go to their father’s land in Lotibol or to where their mother was given. Only the four biological children of Okwera Charles alias Okoi had with Anjulata Labwo should stay on the land. The respondent inherited the land when his father died.

P.W.3 AbaloJema testified that she is the younger sister of the late Okwera Charles alias Okoi. He is the one who brought the appellant’s mother from Kakira onto the land during the year 1999. When their father died, Okwera Charles alias Okoi was made to inherit their mother Anjulata Labwo. It is the clan which forced her brother to inherit the appellant’s mother. It is the reason the appellants came with her. Their land was initially to the East but when their mother’s house caught fire she was made to occupy a house that belonged to the respondent’s mother.

The dispute began when the respondent asked them to vacate the land and return to the place where their mother was initially given. They have their land in Kakira and should return there. The respondent inherited the land when his father died.

P.W.4 Opoka Robert testified that he is one of the local elder who sat three times during the year 2012 and decided that the appellants should leave the land and return to that which was allocated to them initially. All three times the appellants refused to leave saying they could not leave their mother. The respondent insisted the land belongs to his father and the respondents are not his father’s biological children. Okwera Charles alias Okoi had not chased the appellants off the land at the time of his death.

Proceedings at the locus in auo\

The record of trial indicates that the court visited the locus in quo on 12th December, 2018. However, the court did not place on record its notes of evidence given or observations made while at the locus in quo. It however prepared sketch maps of the land showing that the appellants and their mother occupy an area measuring 55 metres x 75 metres. The land occupied by the respondent measures 50 metres x 120 metres.

Judgment of the court below:

In his judgment delivered on 16th January, 2019, the trial Magistrate found that being the customary heir and a beneficiary of the estate of the late Okwera Charles alias Okoi, the respondent had the necessary locus standi to initiate the suit despite not having obtained a grant of letters of administration. Upon inheriting the land, its ownership vested in the respondent. When the court visited the locus in quo, it found that the appellants had constructed two huts onto the land. When the appellants’ father died, the appellants and their mother were moved from Kakira-Lotibol village to land across the road from the home of the late Okwera Charles alias Okoi. It is during the year 1987 when the appellants’ mother’s hut caught fire that the appellants and their mother moved into one of the huts that belonged to the respondent’s mother on the land now in dispute. The appellants abused the respondent’s father’s hospitality by grabbing the land in dispute. The appellants have since the year 2010 deprived the respondent of the use of that land. The respondent was this awarded shs. 6,000,000/= in general damages for trespass to land, each of the appellants to meet half of the award. The respondent was declared the rightful owner of the land in dispute. The appellants were directed, within six months of the judgment, to relocate to the land occupied by their mother before her hut caught fire. A permanent injunction was issued restraining the appellants from interfering with the respondent’s quiet enjoyment of the land in dispute. The respondent was awarded the cost of the suit.

The grounds of appeal:

The appellants were dissatisfied with that decision and appealed to this court on the following grounds, namely;

  1. The trial magistrate erred in law and in fact when he failed to appreciate that the appellants were beneficiaries of the estate of the late Okwera Charles alias Okoi.
  2. The trial magistrate erred in law and in fact when he failed to determine whether or not the appellants’ mother was given a portion of the land.

Arguments of Counsel for the appellant:

In their submissions, counsel for the appellant argued that the respondent had no locus standi to sue other beneficiaries of the estate without first obtaining a grant of letters of administration. There is no record on the court file as to what transpired during its visit to the locus in quo. The trial court farmed the wrong issues when it decided about ownerships and trespass to the land rather than the real issue in controversy, which was, whether the appellants were beneficiaries of the estate of the late Okwera Charles alias Okoi. The respondent’s father inherited the appellants’ mother when the appellants were aged four years and three years respectively. They were raised by the deceased as his own children. The law of succession does not discriminate between legitimate and illegitimate children in the share of the estate, yet the respondent opted to do so by permitting the appellants’ sisters, born of his father’s union with the appellant’s mother as well as their mother, to be free to live anywhere on the land, but not his half-brothers, the appellants. They prayed that the appeal be allowed.

Arguments of Counsel for the respondents:

In response, counsel for the respondents submitted that the respondent’s father had before his death, which occurred during the year 2016, given part of his land to the appellant’s mother when he inherited her. That land was across the road. It is only after the accidental burning of her hut that she moved into one of the huts that belonged to the respondent’s mother. Later the family was displaced by insurgency, into an IDP Camp. It is upon return fir that camp that the appellants resorted to construction of huts on the land in dispute. The trial court correctly decided that the appellants should return to the land that was given to their mother. They this prayed that the appeal be dismissed.

Duties of a first appellate court:

It is the duty of this court as a first appellate court to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion (see Father Nanensio Begumisa and three Others v. Eric Tiberaga SCCA 17of 2000\ [2004] KALR 236). In a case of conflicting evidence, the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions (see Lovinsa Nankya v. Nsibambi [1980] HCB 81).

In its appellate jurisdiction, this court may interfere with a finding of fact if the trial court is shown to have overlooked any material feature in the evidence of a witness or if the balance of probabilities as to the credibility of the witness is inclined against the opinion of the trial court. In particular, this court is not bound necessarily to follow the trial magistrate’s findings of fact if it appears either that he or she has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on demeanour of a witness is inconsistent with the evidence in the case generally.

It was submitted by counsel for the appellants that the respondent had no locus standi to sue other beneficiaries of the estate without first obtaining a grant of letters of administration. Indeed, a beneficiary has no cause of action against a third party save in special circumstances which embrace a failure, excusable or inexcusable, by the administrator in the performance of the duty owed by the administrator to the beneficiary to protect the estate or to protect the interests of the beneficiary in the estate. However, in equity, a beneficiary may seek relief against a third party if the administrator is unable or unwilling to act (see Roberts v. Gill & Co and another [2009] WLR 531), or where the dispute involves third parties to the estate of the deceased and the suit is for the protection and preservation of the estate (see Israel Kabwa v. Martin BanobaMusiga, S. C. Civil Appeal No. 52 of 1995).

With the exception of the above mentioned circumstances, section 191 of The Succession Act provides that no right to any part of the property of a person who has died intestate shall be established in any court of justice, unless letters of administration have first been granted by a court of competent jurisdiction. It follows that for disputes involving distribution of an estate of a deceased person

 

among persons claiming entitlement thereto, or where the dispute is over who the beneficiaries are and their shares to the estate. In the instant case, the respondent sought to assert rights as a beneficiary of the estate against the appellants who as well claimed to be beneficiaries of the estate. He had no locus standi without a grant.

By the second ground of appeal, the court below is criticised for not having pronounced itself on the question whether or not the land initially occupied by the appellants’ mother formed part of the state of the late Okwera Charles alias Okoi, or rather it was given to her as a gift inter vivos. When the court visited the locus in quo, it described that portion of the land as lying across the Padibe - Lukuny Road, all overgrown by bush. Counsel for the respondent submitted that the respondent’s father had before his death, given part of this part of his land to the appellant’s mother when he inherited her. That land was across the road. It is only after the accidental burning of her hut that she moved into one of the huts that belonged to the respondent’s mother.

A gift inter vivos involves an owner parting with property without pecuniary consideration. It is essentially a voluntary conveyance of land from one person to another, made gratuitously, and not upon any consideration of blood or money. It has been legally defined as “the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the done” (see Black's Law Dictionary, Revised Fourth Edition, (1968) St. Paul, Minn. West Publishing Co., at p. 187).A gift inter vivios of land may be established by evidence of exclusive occupation and user thereof by the donee during the lifetime of the donor. A gift is perfected and becomes operative upon its acceptance by the donee and such exclusive occupation and user may suffice as evidence of the gift (Ovoya Poli v. Wakunga Charles, H. C. Civil Appeal No. 0013 of 2014). Customary law requires no writing for the transfer of land, whether by way of sale or by way of gift. For a gift inter vivos to be perfected, the donor must intend to give the gift, the donor must deliver the property, and the donee must accept the gift.

The evidence before the trial court was to the effect that when during the year 1986 the late Okwera Charles alias Okoi inherited the appellants’ mother, D.W.3 Anjulata Labwo, as his wife, he accommodated her in a grass thatched house located on that portion of the land located across the Padibe - Lukuny Road, which at the time the court visited the locus in quo it was found to have all been overgrown by bush. This was because during or around the year the year 1995 (1987 by D.W.3’s account) when the appellants’ mother’s hut caught fire, the appellants and their mother moved into one of the huts that belonged to the respondent’s mother on the land now in dispute. She resided there henceforth until the death of her husband, Okwera Charles alias Okoi, which occurred during the year 2016. The house on the land she initially occupied was never re­constructed and hence the land had remained vacant for approximately 21 years (29 years by D.W.3’s account) by the time of the deceased’s demise. The question then was whether that part of the land was ever given to D.W.3 Anjulata Labwo as a gift inter vivos by her late husband.

Three elements are essential in determining whether or not a gift has been made: delivery, donative intent, and acceptance by the donee. A valid gift requires a manifest intention of the donor to give and an unconditional delivery of the thing given. Delivery and expression of donative intent need not be contemporaneous; delivery may precede the formation of the donor's intent. In the instant case, save for the fact that D.W.3 Anjulata Labwo occupied the land located across the Padibe - Lukuny Road for approximately nine years, from 1986 until 1995 (one year, from 1986 until 1987 by D.W.3’s account) when her house caught fire and was burned to the ground, there was no direct evidence of the land having been given to her as a gift inter vivos.

Intent is a subjective state, thus intent to make a gift is essentially determined by the donor's words. In absence of express words, it is inferred from immediate and existing circumstances in terms of a belief about what the actor wanted to do. In that regard the court may also consider the surrounding circumstances, the relationship of the parties, the size of the gift in relation to the amount of the donor's property as a whole, and the behaviour of the donor toward the property subsequent to the purported gift. Intention is then inferred from all those circumstances in order to determine why a person acted as he or she did and why the act took a particular form. The evidence from which intent is inferred must show delivery of the land to the donee, either actual or constructive, of a nature sufficient not only to divest the donor of all dominion over the land, but also to invest the donee with complete control.

While under cross-examination, it was never suggested to D.W.3 Anjulata Labwo that the portion of land located across the Padibe - Lukuny Road was given to her by the deceased as a gift inter vivos, yet it is trite that an omission or neglect to challenge the evidence in chief on a material or essential point by cross examination would lead to an inference that the evidence is accepted, subject to its being assailed as inherently incredible or possibly untrue (see Habre International Co. Ltd v. Kasam and others [1999] 1 EA 115;Pioneer Construction Co. Ltd v. British American Tobacco HCCS. No. 209 of 2008; R v. Hart (1932) 23 Cr App R 202 and James Sawoabiri and another v. Uganda, S.C. Criminal Appeal No. 5 of 1990). It was thus not part of the respondent’s theory of her case. The Court cannot glean donative intent on the late Okwera Charles alias Okoi’s part only from the mere fact that he permitted D.W.3 Anjulata Labwo to occupy that part of the land for a few years.

Secondly, the fact that from 1995 (1987 by D.W.3’s account) when her house caught fire until 2016 when the deceased died there was never an attempt to re­settle her on that part of the land, is not supportive of a donative intent on the part of the deceased. Instead D.W.3 Anjulata Labwo testified that although following the fire she initially lived in a house that belonged to the respondent’s mother, later a house of her own was constructed for her on the land now in dispute. Her being accommodated initially on that part of the land across the road therefore appears to have been a living arrangement for the family as one homestead, but was not a sub-division of the land by the deceased. No evidence was adduced of delivery of this land to D.W.3 Anjulata Labwo, either actual or constructive, of a nature that was sufficient not only to divest Okwera Charles alias Okoi of all dominion over this part of his land, but also to invest her with complete control thereof. I find that the record is totally devoid of any evidence of the existence of a gift of that part of the land. I therefore find that that part of the land remained part of the estate of the late Okwera Charles alias Okoi.

By the first ground of appeal, the court below is criticised for not having found that the appellants are beneficiaries of the estate of the late Okwera Charles alias Okoi. Under section 10 of The Magistrates Courts Act and section 15 of The Judicature Act, Courts are not to deprive any person of the benefit of, any existing custom, which is not repugnant to natural justice, equity and good conscience and not incompatible either directly or by necessary implication with any written law. Moreover, article 37 of The Constitution of the Republic of Uganda, 1995 recognises the right of every person to, enjoy, practise, profess, maintain and promote any culture, cultural institution, language, tradition, creed or religion in community with others.

These two provisions make Uganda a hybrid legal system governed by legal pluralism. They are a recognition of the fact that a majority of the indigenous citizens of this country still live in accordance with their customary laws. By virtue of the above provisions, the “best interests of the child” principle that is required by The Children Act to be the paramount consideration in all decisions and actions taken concerning a child, should inevitably be rendered as optimally compatible with traditional African values as possible. Given an all-embracing approach that seeks to protect the general welfare of the child, all relevant circumstances have to be taken into account in determining what is best for the child in recognition of the customary law of adoption.

Child care, protection and parental responsibility forms part of old customs and traditions by which various members of the extended family within most, if not all, indigenous communities of Uganda, may assert responsibility over a child and feel obligated to care for the children of other members of the extended family who are not able to care for their own children. This practice does not only apply to temporary care such as foster care and guardianship, but also to the adoption of children. It was, and may still be, one major way in which members of the extended family with children could assist relatives and even friends who had no children of their own by giving them their child for the relatives or friends to bring up as their own. In the extended family context, adoption of children is primarily intended to serve the interests of the society and the family. It is a way of strengthening the family and community ties. Besides being a preservation of family values customary law adoptions still continue to play the vital role of providing a home and family for the lucky orphaned children whose extended family members still preserves these values. These customary law adoptions were not abrogated by any statutory or common law.

On the one hand, the extended family set-up is an integral part of Uganda’s societal structure, under which it is the norm that the child should, as far as possible, be kept within his or her extended family or community of origin, in order to grow up in a loving, stable and permanent family environment instead of an institution. It is the practice therefore that when one passes on, one’s children are commonly left to one’s closest relatives, under a form of kinship care, i.e., the full-time care of a child by a relative or another member of the extended family (or even by a close family friend). The nature of the traditional extended family is such that it is possible to absorb almost all orphans within the extended family, though such kinship care is currently informal and unregulated by the state.

In such informal arrangements, there is usually no severing of relationships with the biological family. The child retains his or her original legal status, family name, and rights and duties acquired at birth, and acquires no legal rights in the home of the foster parent, although the foster parent has legal rights or duties towards the child under customary law. Although the kinship care givers assume the role of primary caregivers, but strictly speaking, they do not become the parents of the child. It is rarely the intention that such children should be allowed to inherit from their kinship care givers.

On the other hand, traditional customary value systems still focus on the interests of the family group or household, and may treat the child as a member of the “adoptive” household. There are situations whereby the care and supervision of a child by a person who is not the child’s parent, may constitute customary adoption of the child according to the custom of the child’s traditional community, which may confer various rights, such as the right to obtain beneficiary status. In such cases, the individual child’s interests are often subsumed under those of the family or household as an integral part of the social structure. The Kinship care givers in such cases may take the place of the biological parents, such that in fact they become the new parents in place of the real parents of the child.

Following the death of their father, the appellant’s mother was re-married by the late Okwera Charles alias Okoi under a levirate marriage. At the time that marriage was contracted, in a society where women had to rely on men to provide for them, such marriages were intended to serve as protection for the widow and her children, ensuring that they had a male provider and protector. The levirate marriage guaranteed the widow and orphaned children a new family, status, and financial resources.

In modem times though, especially post 1995, it is not in doubt that the practice of un-consensual wife inheritance (forced levirate marriage) violates article 33 (6) of The Constitution of the Republic of Uganda, 1995 which prohibits Laws, cultures, customs or traditions which are against the dignity, welfare or interest of women or which undermine their status. However, the relationship between the late Okwera Charles alias Okoi and the appellant’s mother, D.W.3 Abwo Ajulata, predated The Constitution of the Republic of Uganda, 1995 by nearly ten years. In any event, recognition of the status of the appellants as adoptive children of that relationship upholds only that part of customary rules and usages relating to customary adoptions, which are not inconsistent with any statute, other written law and not contrary to morality, humanity and natural justice.

Customary adoption is recognised as an essential practice among the traditional communities. To this day, it remains part of the practical and cultural reality experienced by many traditional families. Generally, customary adoption is the cultural practice in which a child is raised by a person who is not the child’s biological parent, according to the customary law of the family’s community. It usually takes place between members of the immediate or extended family, although it may also involve people close to these families, such as friends or community members. The adoption of children under customary law is a loose, informal arrangement whereby children were taken in by relatives or friends, to care for and bring up as their own. By contrast, legal adoption is granted by a court. Following a legal adoption, the link between the child and the birth parents is considered to be completely and permanently severed, replaced by a new link between the child and the adoptive parents.

Children who are orphaned are at great risk of impoverishment, discrimination, loss of property rights, various forms of abuse, neglect and exploitation of their labour or sexuality. Although adoptions under customary law do not necessarily sever the parent-child relationship, where the arrangement prevails up to the death of the person assuming control over the child, depending on the circumstances and the relevant customs, the child may be allowed to inherit from the deceased estate. If Court is satisfied that a given adoption complies with the community’s customs, the child will be entitled to the same status and rights under The Succession Act as would be afforded to the adoptive parents’ biological or legally adopted children.

In many traditional societies, where a man who is not the natural father of the child born to the woman he marries takes in the child as well and at the time of marriage the husband expressly or by conduct declares that he is marrying the mother together with the child, and the child then moves into the matrimonial home with his or her mother as the child of the husband upon the marriage of the mother, the adoption being completed by the change of the child’s surname to that of the adoptive father, the child will be entitled to assert all the rights a child can against his or her father, including the right to inherit his or her father’s estate as an intestate heir (see Montshiwa v. Montshiwa [1999] 2 BLR 216 (HC) and Marman v. Marman [2003] 1 BLR 96 (HC). What constitutes adoption under customary law is an agreement to adopt along with the implementation thereof.

In the instant case, not being the biological father of the two appellants, the late Okwera Charles alias Okoi not only married their mother D.W.3 Abwo Ajulata by inheritance, but also took in the two appellants as well, aged four years and three years respectively at the time, and by conduct declared that he was marrying the mother and taking in the two children. The two children then moved into the matrimonial home with their mother as the children of the husband upon the marriage of the mother. They have lived in that home their entire lives since then, with the deceased as their adoptive father, who thereby assumed control over them. The arrangement prevailed up to the death of the late Okwera Charles alias Okoi, hence a period of nearly thirty years. There was no evidence to show that they maintained any ties with their biological uncles or unties during that period. The appellants were accordingly customarily adopted by the late Okwera Charles alias Okoi and such adoption entitled them to inherit from his estate.

Considered from a different perspective, according to section 27 of The Succession Act, entitlement to a share in an intestate’s property as a beneficiary depends on the classes of relatives that survive the deceased, as follows; (i) where the intestate is survived by a customary heir, a wife, a lineal descendant and a dependent relative; (ii) where the intestate is survived by a customary heir, a wife and a dependent relative but no lineal descendant; (iii) where the intestate is survived by a customary heir, a wife or a dependent relative but no lineal descendant; (iv) where the intestate leaves no person surviving him, other than a customary heir, capable of taking a proportion of his property under the previous three situations; (v) where no person takes any proportion of the property of the intestate under four previous situations; and (vi) where there is no customary heir of an intestate. That order of entitlement is the determinant of the beneficiaries who should be named in the petition.

By section 2 (g) of The Succession Act “dependent relative” is defined as including; - (i) a wife, a husband, a son or daughter under eighteen years of age or a son or daughter of or above eighteen years of age who is wholly or substantially dependent on the deceased; or (ii) a parent, a brother or sister, a grandparent or grandchild who, on the date of the deceased’s death, was wholly or substantially dependent on the deceased for the provision of the ordinary necessaries of life suitable to a person of his or her station.

The question of dependence or no dependence, whole or partial, is a question of fact. Each case has to be considered in light of the individual circumstances. The economic link between the recipient and the deceased must be in the nature of support, which is not limited to financial provision to meet economic needs and contingencies, but includes the provision of sustenance, shelter and other necessaries, which support must be relied upon by the recipient. In addition to the existence of such payments or income there should be indications that the recipient was actually relying on those payments or that income to support themselves economically, either wholly or partly. It is not sufficient that the deceased made sporadic gifts of money (or goods of value) that the recipient did not need for “support” or were of such an irregular nature that the recipient could not rely on those gifts for continuous sustenance. There has to be proof of regular payments by the deceased for the economic or other financial support of the recipient. It is not the mere fact of receipt of support but the dependence or reliance upon another to provide it that matters. Account though also needs to be taken of any income received from other sources by the person claiming to have been economically dependent.

It is no surprise that D.W.1 Olweny Alfred testified that he would not go anywhere else because Okwera Charles alias Okoi brought them to that land together with their mother while they were still minors, and he left them on the land at even at the time of his death. The two appellants had depended on the deceased since the age of four years and three years respectively. They rely on land forming part of his estate to support themselves economically, either wholly or partly. It is from that land that they derive sustenance, shelter and other necessaries. It is only the period of insurgency that disrupted that dependency which they sought to re­establish in 2012 only for the respondent to dis-inherit them. For all intents and proposes, they are beneficiaries of the estate of the late Okwera Charles alias Okoi.

In the circumstances, had the trial court properly directed itself, it would not have come to the conclusion that it did.

Order:

In the final result, the appeal is allowed. The judgment of the court below is set aside and instead the suit is dismissed. The costs of the trial and of the appeal are awarded to the appellants.

Delivered electronically this 28th day of September, 2020 ................... Stepkiei/v Mubiru..........

Stephen Mubiru Resident Judge, Gulu Appearances

For the appellants : M/s Owor-Abuga and Co. Advocates.

For the respondent : M/s Ogik and Co. Advocates.