A superficial reading of the Subsection suggests that the provisions prohibit the making of an adoption order unless:
(a) That applicant is a British Subject or a Citizen of Uganda and;
Learned Counsel submitted that for the purpose of Section 4(5) a Ugandan working abroad or having business abroad but who has a permanent residence in Uganda is for purposes of the Subsection resident in Uganda. He submitted that such Ugandan who is temporarily
resident outside Uganda should be allowed to adopt under Section 4(5) of the Act. Counsel submitted that the English Adoption Act (1950) has restrictive Sections and the judgment in Adoption Application No. 52/1951 gave a very narrow interpretation of “Residence” by holding that for adoption purposes a British working in a British
Colonial Civil Service abroad resident in Nigeria was not a resident in Britain (actually the applicant and his wife were English
and residence referred to residence in England). Counsel contended that the Learned Judge in the present case should not have based
her decision on the English decision. As I have indicated, Byamugisha, J.., also cited three other decisions of the Uganda High Court
to support her view of the Law. I should perhaps add that those decisions were really influenced by the same English decision in
Adoption Application 52/52, itself a well reasoned judgment.
Counsel cited Fox Vs. Strirk (1970) 3 All ER 7; Sinclair Vs. Sinclair (1967) 3 All ER 882 and a critique by J.D. Mc Clean in Vol. 2 of the International and comparative Law Quarterly (19621 1153 (at page 1157) for the view that a person can have two residences and therefore that the appellants had residence in Uganda for the purposes of an
Adoption Order under S.4 (5) and temporary residence in Austria where the couple worked.
With respect, I do not think that the provisions of the old British Adopting Act 1950 which Harman J, interpreted in Adoption Application No. 52/51 is materially much more restrictive in application than the Act. (See Section 4 and 5 of our Act) In view of the decision I have reached
this point doesn’t matter now.
It appears from the provisions of our Act and what Harman J., said about the British Adoption Act 1950 that the concept of residence was put in both Acts so as to enable Court to have control or jurisdiction over Adoption Orders (see
Section 5,6,7,13,) of our Act. I noticed that the restrictions imposed by subsections (2), (3) and (4) of Section 4 can be dispensed with by Court but the Court cannot dispense with the requirement of residence of either the applicant(s) or the Infant. It would appear
therefore that inspite of the discretion given to Court by Section 5(b) of the Act to the effect that before making an Adoption Order
the Court shall be satisfied that the Adoption Order will be for the welfare of the Infant, even if the Court is so satisfied (as
was the case here) the Court still appears to have no discretion to dispense with the requirement of “Uganda residence”.
This appears to be reinforced by the contents of the statutory form of the petition, (Form i in the Schedule to the Adoption of Children Rules). There the applicants are required to state their place of residence in Uganda and the place of residence of the Infant in Uganda.
The superficial view would therefore appear to be that the residence requirement is mandatory. If, Adoption Order should be made
where such order is for the welfare of the Infant, why is the residence requirement so Stringent? Can it be argued that the legislature
could have intended to make it difficult for Adoption Orders to be granted merely because of questioned residence qualification?
Was even constructive residence not contemplated?
I agree that the word “resident” is not defined in the Act. But as the authorities cited by Mr. Babigumira show and as
Harman J., also observe in Adoption Application No. 52/51. (Supra) “Resident” or “residence” is a matter of fact to be proved by evidence or to be inferred from the circumstances of each case.
What may be residence for the purpose of one particular piece of legislation (e.g., Income Tax Law) may not necessarily be residence
for the purpose of another piece of legislation such as Adoption of Children Act. In that regard and with due respect I think that
the guide lines by Lord Denning in Fox Vs. Stirk (1970) ALL E ALL ER 7 need not be the only one to be used in courses under the current Adoption Act because the case of Fox concerned residence on a qualifying date for purposes of parliamentary elections under the United Kingdom Representation of the People Act, 1949. It is interesting to note that Adoption Application No 52/51 was not referred to in the Fox’s case I also note the deference in the use of the word “resident” in Section 4(5) of our Act and the words “normal resident” used in our National Assembly (Election) Act and “Ordinarily resides” in Regulation 15 of the Resistance Councils And Committees
(Elections, Regulations,) 1989.
What is most remarkable in the Adoption Application No. 52/51 is that Harman, J’s decision reflects one view of the law opposite the views of some of his brother Judges. The judgment of Harman J, in Adoption cause No. 52/51 which has influenced a number of the recent decisions in the High Court has interesting passages which themselves reveal the difficulties experienced
by some British Judges at the time. I find it pertinent to quote the passage some what at length. At pages 935 and 936 of the report, the Learned Judge expressed himself in his judgment as follows: -
“The Difficulty has really arisen out of the judgment of EVERSHED J., in Re
W. (unreported). This was a considered judgment and it has given rise to the
present position. In that case there was joint application by a Colonial Civil
Servant and his wife to adopt a child. The applicants owned a house in
England in which they live during the periods when they were home. There is,
however, one difference between that case and the one now before me, in that
in Re W. the wife intended to remain in England after the child was handed to
her care, and not to return to Africa with her husband. It was, therefore, clear
that on any view she was resident in this country and there was no objection to
making, as the learned judge did make, an order in her favour. The real
difficulty in that case was whether or not he could make an order in favour of
the husband. It was argued that the husband had a home here, that for fiscal
purposes he was resident here because, having a home available, he was
resident here in any year he set foot in his country, according to the well-
known ruling of the Income Tax Commissioners on that subject. The Learned
Judge found himself unable to say that he resided here. After referring to the
Income Tax decision, which I think he regarded as artificial, the learned judge
Am I construe (the Adoption of Children Act, 1926) residence in fact within
the jurisdiction is referable to the power given to the Court to impose
conditions on the making of an order as specified, for example, in 8.4 of the
Act if 1926. I therefore come to the conclusion that I am unable to make an
order in the male applicants favour.”
He went on in these terms:
“When the male applicant returns to this country, the order can be varied and made in favour of both applicants.”
I should take those words to mean that when the husband had finished his
service abroad and returned to live permanently in this country, he would be
qualified as a person resident here, but I am told, a different view was taken
by a judge in chambers, for, when the husband returned on leave in 1948,
an order was made in his favour although he intended to go back to
Africa shortly thereafter. As a result, apparently, of that case, a practice
has grown up in the last two rears under which, for an adoption order to
be made, it has been necessary only to find that the applicant was
physically within the borders of the Country at the moment when the
order was made. On the other hand, even if his residence, his home, and his
avocations were admittedly here, the order could not be made in his favour if
he was out of the country on the morning when the Judge happened to be
asked to make the order. Indeed, it was lately suggested to me that a university
don, who had left the country for some two months to deliver some lecturers,
was not a person qualified to have an order made in his favour, because he was
not resident here at the time of the application for the order.
I cannot believe that any view which leads to such a conclusion is right. A
more sensible meaning than that must be given to the word “resident.”
Counsel for the applicants suggests that it can be founded in the period of
three months imposed by S.2(6) (a) of the Act of 1950 as the period during
which the applicant must be here and in possession and charge of the child,
aria that that is the kind of residence which is meant. He contends that it is
enough if the applicant lives here for three months or so before the order is
made because he is then resident here for the time being. Counsel for the
infant suggests that the applicant must no only be resident here, but must have
no immediate intention of being resident elsewhere. It is a striking fact that a
child which is adopted does not become a ward of court, nor is the court bound
to make any conditions whatever about where the child shall reside in the
future. Having satisfied itself that the adopters are suitable persons that they
have the means and I suppose the accommodation, which is likely to lead to
the child’s advantage, the duty of the Court is finished. Counsel for the
applicants contends that it does not in the least matter if the applicant goes
abroad immediately after the order is made. As a matter of merits, of course, it
matters very much. As a matter of jurisdiction, I think it does not matter. One
must be able to postulate at the critical date that the applicant is “resident”
I think that that is a question of fact. “Resident” denoted some degree of
permanence. It does not necessarily mean that the applicant has a home in his
own, but it means that he has settled headquarters in this country. It seems to
me dangerous to try to define what is “resident.” It is very unfortunate that it is
not possible to do so, but, in my Judgement the Court must ask itself in every
case; is that applicant resident in this country? In the present case, when I
asked myself that question in respect of the wife, I can only answer; “No. She
is merely a sojourner here during a period of leave. Like her husband, she is
resident in Nigeria where his duties are and whither she accompanies him, in
pursuance of her wifely duties.” I do not think the applicants in this case are
residents in England at present, although they may be hereafter.
I much regret having to arrive at this conclusion, particularly in view of the
fact that during the last two years three orders, I think, have been made on a
footing which seems to be inconsistent with the judgment which I have just
felt bound to deliver.”
Two things are worth of note here. The Judgement shows that in the application of Re W (1946) (unreported), Evershed, J., eventually granted an order for adoption of the infant by a couple who worked in colonial administration in Africa and had a home in England where the couple returned to live during their vacation.
Secondly Harman, J’s decision differed from three other orders (by his brother Judges) in which adoption was granted although the applicants were resident abroad and apparently returned home
in circumstances similar to those of the appellants in the case before us.
Further it should be pointed out that unlike in Uganda, Adoption Acts in the UK have been amended many times since Adoption Application 52/52 was decided particularly from Adoption Act 1958 culminating in the Adoption Act, 1976 which liberalized the law of adoption to include what are called “convention adoption orders” in which case residence
in Britain is not a condition precedent to granting certain adoption orders. This shows we have remained static with English law of 1940’s.
In view of the fact that the word “resident” has not been defined by Statute, I think that the question of “residence”
for purposes of any Adoption Application should be found as a fact by the Court hearing the Application on the facts of each case.
It is unhelpful to be too dogmatic about the concept of “resident other factors also matter.
Among authorities where the words “Resident” and “Residence” have been defined, Vol 4 of Strouds Judicial Dictionary of words and Phrases gives no less that 57 definitions. Thus is note 3(p, 2359) it states that:-
“Resident, has a variety of meanings according’ to the Statute (or document in which it is used (per Erle C.J.). It is an ambiguous word” and may receive a different meaning according to the position in which it is found (per Cotton
L.J, Re W. Bowie Exp. Bruell, 16 ChD.484.
Note 4 on the same page quotes Gibson, J., thus:-
“The word residence and place of abode are flexible and must be construed according to the object and intent of the
particular legislation where they may be found. Primarily they mean the dwelling and HOME, where a man is supposed usually to live and sleep; they
may also include a man’s business abode, the place where he is to be found
daily”; R vs. Fermangh Justice (1897) 2 I.R 563 Adoption Application No.52/51 is there quote to illustrate: Residence in England as defined for purposes of Adoption of Children Act. 1950 by Harman J., but as I have already stated there were by then three other decisions giving a contrary view. Those other decisions
appear not to have been reported. But it is obvious that the view expressed by Harman, J, is with respect not the universal interpretation though it is respected. Thus the Learned judges interpretation was criticised by J.D McClean (supra) at page 1157, et seq.
I CERTIFY THAT THIS A TRUE COPY OF THE ORIGINAL.
East Africa Courts have faced similar problems of construing the words “resident” or indeed “home”. See in
Parlington vs. Parlington (19) A 582 Commissioner General of Income Tax Vs. Noorani (1969) EA 685; Waseru vs. Kiromo (1969) EA 172 and Sir George Armoutoghi Vs. Commissioner of Income Tax (1967) EA 312.
In Noorani case the East African Court of Appeal interpreted the word “home” for purposes of the payment of Income Tax and stated (P.686):-
The question here is the
meaning to be placed on the words “has a home in any of the Territories.” A “home” is not defined in the
law and clearly must depend upon the peculiar circumstances and facts of each particular case. It is clear however, that a person can have more than one home in different countries, and then in my view “home” must mean a dwelling-house in the sense that it is a place in which one lives and for this purpose may only amount to a single room..
I also agree with the view expressed by the learned judge that “home” must be a place
which, for at least a portion of the tax year, in question, was available to the tax
payer, whether he was in this country or not, and was kept for the purpose of his use
as a dwelling and was also a place over which he, at the particular time exercised
In my view the absence of the expressions “normally resident” or “ordinarily resident” or indeed “permanently
resident” or “habitually resident” to S.4 of the Act opens construction of the word “Resident” to include “constructive residence.” That is the view i would adopt
in this judgment. I do so because I am satisfied that the object of the Act is to promote the welfare of the Infant rather than to
make it hard for prospective adopters to get Adoption Orders. In our present case the Infant has been under the care of the appellants
since 3/2/89. The provisions of the Act should be interpreted liberally so as to enhance the benefit and protection of infants to be adopted and
thereby give effect to the intention of the legislature. With modern means of communication and bearing in mind the practice of assisting
members of our extended family in Uganda, I personally believe that many Ugandans who work abroad are absent physically but are generally
spiritually present in Uganda. I think that the appellants are for our purposes resident in Uganda and qualify to obtain the Adoption
Accordingly I would allow this appeal. I would set aside the order of the Trial Judge and in its place I would substitute an order
allowing the appellants to adopt the Infant
In his submissions, Mr. Babigumira asked us to “allow adoption with Petitioners’ costs.” The memorandum of appeal
did not raise the issue of Costs. The petition had indicated that the petitioners would pay the Costs of the petition.
I would have ordered for the Costs of the appeal to be paid out of Public Funds if a proper case had been made out during the hearing.
In some Countries where Adoption Agencies or Societies exist, such costs would be paid by such Agencies or Societies. In this case
I would concur with the order of the Learned Deputy Chief Justice that the appellants bear the Costs of the Appeal.
Dated at Mengo this 3rd day of May, 1995.
JUST ICE OF THE SUPREME COURT.
DEPUTY REGISTRAR,THE SUPREME COURT