Court/Judicial body: The High Court of Uganda at Kampala (Commercial Division)
Date: March 30, 2009 CRC
Provisions: Article 12: The child’s opinion
Domestic provisions: Order 32 R 1(1) of the Civil Procedure Rules S1 71-1
Case summary
Background: Nantume Shamira rented a shop from the City Council. She lost her papers regarding the lease, and when she tried to replace them, she found that the City Council had let the premises to two other persons who were both minors. In leasing the shop to other people, the Council had relied on forged papers, some of which had been signed before the children had been born. The forgery was allegedly undertaken by the minors’ father, who was not a party to the case. Ms. Shamira sued the council and the two children for her losses as a result of her tenancy being usurped.
Issue and resolution: Contracts. The Court found that the lease was void as the children did not have capacity to enter into a legal agreement. The guardians of the children were ordered to pay the damages that would be due by the minors.
Court reasoning: The Court’s reasoning turned on whether the children had an understanding of the benefits and detriments in signing a lease: “If the child lacked the capacity to choose or give a view, he or she cannot be a party to an agreement and [the] agreement would be void”. Given that the children in question were very young and not yet able to form an opinion or express their views on the matter, it would be a violation of their rights to hold them responsible for signing the lease.
Excerpt citing CRC and other relevant human rights “To think that a toddler can enter into an agreement is tantamount to entering into no agreement. Whether a contract with toddlers can be beneficial to them or for their permanent benefit is again a matter of opinion because the purported contract may well be to their detriment. And which the toddler may need to defend. In the instant case a tenancy for 12 years cannot be for the permanent benefit of the toddler, nor can it be said that it is beneficial to the toddler. A commercial transaction on behalf of the toddler may well be to his/her detriment as in this case. In my view the [minors’] contractual obligations and their rights under the Human Rights Legislation can only be resolved if the test applied is that of choice or right to express his or her view as stated in Article 12 of the Convention on the Rights of the child (1989) which states that: Parties shall assure to the child who is capable of forming his or her own view the right to express that view freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child. If the child lacked the capacity to choose or give a view, he or she cannot be a party to an agreement and suit agreement would be void. To impose an agreement on the minor would be an infringement of their human rights. In circumstances where an action is detrimental to the minors’ interest the liability should be enforced against the legal Guardian as trustees of the child and not the minors; on whose name the contractual obligation arose.”
CRIN comments: This case is consistent with the CRC in that children should not be forced to accept the legal obligations of their parents or guardians stemming from decisions made without their knowledge or participation.
Citation: [2009] UGCommC 9
Link to full judgement: http://www.ulii.org/ug/judgment/high-court/2009/89/