[1998] UGHC 34

## THE REPUBLIC OF UGANDA. IN THE HIGH COURT OF UGANDA AT KAMPALA CIVIL SUIT NO.145 OF 1995

### ADMINISTRATOR GENERAL

, ADMINISTRATOR OF THE ESTATE

OF THE LATE JOSEPH SERUNKUMA

NKALUBO- THE 3RD DEFENDANT APPLICANT

# VERSUS

*^I 0* 1. TEDDY KISAMBIRA

2. ERIASI KISAMBIRA

3. JOHNMAGOOLA

ADMINISTRATORS OF THE ESTATE

OF BULKHANI NKONGE

**/\_s** THE PLAINTIFF RESPONDENTS

## BEFORE: THE HONOURABLE MR. AG. JUSTICE MOSES MUKIIBI

#### RULING

This is an application brought by Notice of Motion under Order 9 rule 24, Order 47 rule 6 Order 48 rule ¹ of the Civil Procedure Rules. The Administrator General, in his and


day. capacity as the Administrator of the estate of the late Joseph Sserunkuma Nkalubo (who was the 3rd defendant in the main suit) brought this application against the Respondents who are the administrators of the estate of Bulkhani Nkonge ( who was the Plaintiff in the main suit). The Applicant is seeking orders of this court to set aside an exparte judgment of this court and an exparte order both dated 4th June 1996, and leave of court to file a late written an affidavit deponed by J. Kiyingi, an Assistant Administrator General, dated 30.9.1996. There is an affidavit in reply deponed by Teddy Kisambira, the first Respondent, dated 2nd April, 1997. It was filed in court on the same statement defence in respect of the 3rd defendant. This application was apparently filed in court on 15.10.96. It is supported by

**i 2**

**I**

**r**

**rj**

**?!**

**J**

**r31**

**J**

**L**

The brief background of this application from a perusal of the court record is as follows:-

On 3.3.1995 the late Bulkhan Nkonge filed in this court the main suit against one Abiasali defendant was for payment of compensation for loss of the alleged plaintiff's land. This land is comprised in Kyadondo Block 230 plots 2 and 3 measuring 20.10 Acres situate at Kamuli, Kyadondo. The plaintiff prayed this court to enter Judgment against the 1st defendant for: ... (a) a declaration that the defendant fraudulently sold his land; and (b) an order that the defendant pays to the plaintiff adequate compensation for the loss of his land. Sentongo, who later became the 1st defendant. The plaintiff's claim against the said

The first defendant was served with summons to Enter Appearance and a copy of Plaint on I' 11.3.95. However, he neither entered appearance nor filed a written Statement of Defence J By letter dated 3.5.95 Counsel for the Plaintiff applied for Judgment to be entered against **p-0**

*10*

**i**

**!• ii!**

**I**

**I**

**1**

the 1st defendant and to set down the suit for formal proof.

On 12.5.95 the Deputy Registrar entered Judgment for the plaintiff under Order 9 rule 6 of the Civil Procedure Rules. On 26.9.95 the suit came up for formal proof before Hon. Justice J. P. Berko (as he then was). On that date the Plaintiff and Edith Kisambira testified. However, the latter did not complete her testimony. Counsel for the Plaintiff applied for an adjournment.

On 14.11.95 Counsel for the plaintiff applied to this court to join Cranimer Kaaya, Joseph Serunkuma Nkalubo and Abraham Ndaula as Co-defendants. On the same date Hon. Justice J. P. Berko (as he then was) allowed the oral application for joinder and ordered the said people to be joined as Co.defendants. The learned Judge further ordered the said Codefendants to be served with the Order for joinder and all the pleadings as at that date.

On 16.11.95 an amended Plaint was filed in court in which:

Abiasali Sentongo became 1st defendant. Cranmer Kaaya was 2nd defendant. Joseph Serunkuuma Nkalubo was 3rd defendant. Ibrahim S. Ndawula was 4th defendant. On 16.11.1995 Summons to Enter Appearance were duly issued by this court addressed to Joseph S. Nkalubo of Kamuli, Kampala.

Apparently, the plaintiff, Bulkhani Nkonge died on 15.11.1995. So on 15.4.1996, the Present Respondents filed a Notice of Motion in their capacities as the Administrators of the Plaintiff's estate seeking an order of court to Substitute them for the plaintiff in the main suit. On 24.4.96 the application to substitute the Respondents for Bulkhani Nkonge, the dead

$20$

$\sqrt{5}$

plaintiff, was granted by Hon. Justice J. P. Berko (as he then was). On 25.4.96 an amended Plaint was filed in court showing the names of the Respondents as the plaintiffs. On 25.4.96 the Respondents filed in court an Application by Chamber Summons seeking an Order of court that service of the summons and all court Process upon the 2nd, 3rd and 4th defendants be effected by Publication of a Notice in the New Vision newspaper and by affixing it on the High Court notice board. On 2.5.1996 Hon. Justice J. P. Berko (as he then was) granted the application for substituted service on the 2nd, 3rd and 4th defendants. However no time was fixed by court for the appearance of the said defendants.

$\overline{4}$

According to evidence on the court record Notice for substituted Service was Published in the New Vision of Thursday, May 9,1996 at page 20.

$10$

$2E$

On 31.5.1996 when the case came up for hearing counsel for the Plaintiff (now Respondents) addressed court and said that the 2nd, 3rd and 4th defendants had been served by Substituted Service but none of them had appeared in court. The learned Judge then ordered the case to proceed exparte. The case was heard and concluded. On 4.6.1996 Judgment was delivered by the learned Judge whereby Judgment was entered for the Plaintiff for a 15 declaration that Bulkhani Nkonge's land was fraudulently transferred to the 2nd, 3rd and fourth defendants. It was Ordered that the names of the 2nd,3rd and 4th defendants be cancelled and revoked from the Certificate of title, and the name of Bulkhan Nkonge restored on the Certificate of tittle. On 4.6.1996 a formal court order to that effect was extracted.

On 15.10.96 the Applicant had filed an application by Notice of Motion whereby he sought to be made a party as Co.defendant to the main suit in his capacity as the Legal representative of the 3rd defendant. On 21.11.97 Mr. Matovu Counsel for the Respondents consented with Mr. Kulumba Kiingi Counsel for the Applicant to allow the Administrator General to be added and/or Substituted for the 3rd defendant in the main suit. This Consent present application as having been filed on 21.11.1997, and they agreed to Proceed with the hearing of the application. was duly entered on the court record. On the same day both counsel agreed to treat the

The present application is based on five grounds namely

**I**

- 1. That from 4.10.1993 the Applicant was the legal representative of the 3rd defendant ill and hence the main suit was not properly brought before court without joining him to the said suit as ^a Co.defendant. /O - 2. That on 16.11.1995 when the plaintiff summoned the 2nd, 3rd and 4th defendants to Enter Appearance and defend the said Suit he had actual knowledge that the 3rd defendant was' dead but he never took the necessary steps to sue his legal , representative.¹ - 3. That ^a defence was available to the estate of the 3rd defendant that the suit is barred by the Limitation Act. - 4. That by way of defence, it is contended that the plaintiff had no locus standi to bring the suit in his own name instead of the name of his father Dalausi Butanaziba. - That it was an inadvertent error on the part of the learned Judge not to have raised 5. **1** the issue of Limitation and declined to entertain the suit.

The affidavit ofJ. Kiyingi, Assistant Administrator General, dated 30.9.1996 filed in support of the application dwelt to a large extent on providing Proof that the plaintiffjoined the 3rd

**'l**

**1**

**I,**

**i. I**

**r**

**I**

**]**

**]**

**'j**

**5I**

**I**

**]**

**I i**

**i**

**i**

**II**

parag.9 of the affidavit the deponent went further and stated that the normal and the **¹** substituted service failed to Produce results because the 2nd, 3rd and 4th defendants were all dead. In paragraph 13 of the said affidavit the deponent stated that she had information from his grave was at Nateete village. **^I** defendant as one Yowanina Nalugwa Namitala that the 4th defendant died in April/May, 1979 and that Co.defendant when he actually knew that he had died a long time ago. In

defendant had fraudulently registered the 2nd, 3rd and 4th defendants (on the Certificate of title) with the knowledge that they were dead. In paragraph 6 of the said affidavit it was deponed that because the plaintiff had no knowledge of who was the administrator of the estate of the deceased he decided to apply to court to serve the defendants by substituted service. In paragraph 7 of the said affidavit it was stated that the summons were Published **LS** in Newspapers and so the applicant should have known about the suit. By her Affidavit in Reply Teddy Kisambira, the 1st Respondent deponed in paragraph 3 that the applicant has no reasonable or sufficient cause for having failed to appear to the summons. In paragraph! 5 of her said affidavit the 1st Respondent stated that the 1st

*I O*

**!**

*i* **I** I i

**i**

At the hearing of this application the applicant was represented by learned counsel Mr. **I** Kulumba Kiingi while the Respondents were represented by learned counsel Mr. Matovu.

Learned counsel Mr. Kulumba Kiingi submitted that under 0.9 r.24 of the CPR an Applicant has to satisfy the court either that the summons was not duly served, or that he was prevented by sufficient cause from appearing when the suit was called on for hearing. Learned counsel submitted that it is clear from reading paragraphs 9 and 10 of the original


**I**

**I**

**r1**

**'J**

**IW**

**I**

**r.**

**1-1**

plaint filed in court on 3.3.1995, and also from reading paragraphs, 11 and 12 of the Amended Plaint filed in court on 25.4.96 that the plaintiff(s) knew at the time of filing the suit that the 3rd defendant was dead. He submitted that the fact that the plaintiff(s) knew that the 3rd defendant was. dead was confirmed by paragraph 5 of the affidavit in reply deponed by the 1st Respondent. Learned Counsel referred to paragraphs 9 to 12 of the amended Plaint and contended that if the Plaintiff approached the family of the 3rd defendant to inquire about the Certificate ofTitle he should have asked the said family who the deceased's legal representative was. Counsel argued that the Plaintiffs could have inquired from the Administrator General whether or not the death of the 3rd defendant had been reported to him as required by law. Counsel submitted that the Respondents did not do so. Counsel referred to paragraphs 6 and 7 of the affidavit in reply. In paragraph 6 the 1st Respondent deponed as follows:-

"6. That the plaintiff had no choice but to add the registered proprietors who had been fraudulently registered by the 1st defendant and since the plaintiff had no knowledge of who was the administrator of the estate of the deceased decided to apply to court to serve the defendants by substituted service with the hope that if there was any legal representative, he would apply to join the suit or would raise an objection to the proceedings if they were prejudicial to **r.ⁱ** anybody".

> Learned counsel for the applicant submitted that the position given in the above quoted service has to be living but only difficult to reach. Counsel contended that there can be no substituted service where the party to be served is known to be dead. Counsel submitted that paragraph has no basis in law. He submitted that the person to be served by substituted

**1**

**rr**

**I**

**3**

**E S n**

**r**

**1**

our Civil Procedure Rules do not cover a situation, such as the one in the instant case, where that: **I r** affidavit in reply where'the 1st respondent deponed that the summons were published in a Newspaper and so the. applicant had means of knowing about the suit, counsel submitted a plaintiff knowingly sues a dead person as defendant. Referring to paragraph 7 of the

**r**

**.. ^I**

I

**I.**

**T¹**

**L**

**\* ¹ 1**

**. J**

**Ji**

The Administrator General as an officer of state handles millions of files for **(i)** dead persons and he could not be expected to scan all newspapers printed in Uganda looking for adverts of that nature and

**i**

**r**

*}*

**r**

**I**

**i**

*J*

**J**

the advert was specifically directed to the 3rd defendant in person. There (ii) could be many people with similar names. At the material time the legal representative was not a party to the suit and so he had no legal obligation to respond to such an advert.

Learned counsel then referred to page one (I) of the typed Judgment of Hon. Justice J. P. Berko particularly the last sentence which reads:

"The defendants were served by way of substitution but have never appeared in court".

Counsel contended that the learned judge was not made aware that the 3rd defendant was dead. Learned counsel then submitted that:

**72.**

(i) the summons dated 16.11.1995 which were issued by Court addressed to the 3rd defendant were null and void.

- (ii) The substituted service which was ordered by court was also a nullity as it was based on summons whose issuance was void at law.

**r1**

j

**r**

**rj**

**r'**

**T1**

**11**

**1**

**-1**

**'1**

**1**

(iii The whole proceedings which resulted into the exparte judgment and order dated 4.6.96 were null and void on the same grounds.

Counsel then cited the case of:

**: i**

!

i

KALORI MUBIRU & 21 OTHERS VS. EDMUND KAYIWA & 5 OTHERS, Supreme Court, Civil Appeal No.3 of 1979, reported in [1979] H. C. B. 212.

Learned counsel submitted that the applicant has ^a defence which is likely to succeed. **/o** Counsel submitted that the applicant intends to rely on the Limitation Act to argue that the action was barred by statute. Counsel also contended that Bulkhani Nkonge had never been registered as proprietor of the suit property and so he had no locus standi to bring the main suit in his own name.

Counsel also submitted that the Legal Representative will plead protection afforded to bona *IS* fide purchasers of land for value without notice of the alleged fraud on the part of the 1st defendant. Learned counsel ended his submission with a prayer that the exparte judgment, order and decree dated 4.6.96 be set aside and leave be granted to the applicant to file a late Written Statement of Defence. Counsel wanted costs of the application to be in the Cause.

On the other hand, learned counsel for the respondents, Mr. Matovu submitted that the instant application is misconceived and should be dismissed.

Learned counsel argued that the application seeks two orders:

$(i)$ To set aside an ex parte judgment;

and

Extension of time within which to file a defence. (ii)

Counsel contended that a party seeking to set aside an exparte order must plead either that he was not served with the summons or that he did not have opportunity to attend court when the matter was called on for hearing. Counsel argued that if a party was not served then time does not start running until he is served. Another situation is where a party has duly filed pleadings in court but for some reason he fails to attend court for the hearing of the case. Counsel submitted that a party seeking for an order to set aside an ex parte judgment relying on either of those two grounds cannot at the same time seek for an order for extension of time within which to file defence. Counsel argued that when a party applies for extension of time then he concedes that he was served with the summons. Counsel submitted that the orders sought by the applicant in the instant application are mutually exclusive.

$15.$

Counsel cited the case of:

NANJIBHAI PRABHUDAS & Co Ltd V. STANDARD BANK Ltd. [1968] E. A. 670(CA).

Counsel contended, relying on the above case, that the applicant, by applying for extension

$10$ **J I I I J 1 i J**

of time to file a defence, must have waived any irregularity that may have occurred in the service of the summons. Counsel submitted that on this ground alone the instant application should fail.

Counsel submitted, in the alternative, that the application has no merit for failure to satisfy the requirements of 0.9 r. 24 of the CPR.

**i!**

**I**

<

I

**•l**

**ii** '! 1

*10*

Counsel contended that the purpose of the suit was to obtain an order to cancel the names of the defendants from the certificate of title and the Register; so even if the plaintiff knew that the 3rd defendant was dead he could not have sued a person whose name was not on the register. Counsel submitted that the proper procedure was to sue the 3rd defendant; person. irrespective of whether or not he was dead and to serve summons by substituted service. Counsel argued that this is a special situation where a plaintiff can bring a suit against a dead'

Learned counsel submitted that the applicant was served by substituted service through the *IS* General made it' clear that the Administrator General'^s Department receive Newspaper advertisements. Counsel for the respondents further submitted that the purpose ofsubstituted service was that anybody in charge of the estate of the 3rd defendant might receive information and come in and defend the claim in court. Counsel submitted that 0.5 r. 19(2) of the CPR provides that once substituted service is ordered it is as effectual as if it had been **¹** made on the defendant in person. The applicant is assumed to have received notice of the existence of the suit. Counsel argued that the applicant applied for extension of time within newspaper. Counsel submitted that the evidence of Ms. J. Kiyingi, assistant Administrator

which to file a late Written Statement of Defence because he received notice of the existence of the suit by substituted service.

Learned counsel submitted that under 0.9 r. 24 of the CPR an applicant must show some reasonable-defence. He argued that the applicant disclosed a defence of Limitation but the plaintiff's claim was based on fraud. He contended that the applicant himself had sued the wound up his submission saying that on the merits the instant application for setting aside the exparte judgment and decree cannot succeed. He submitted that the mode of service which was adopted by the respondents in the instant case was proper. Learned counsel prayed this court to find that this application is misconceived or that it has not merits, and to dismiss the t same with costs being awarded to the respondents. 3rd defendant in H. C. C. S. No. 510/95 for fraud in relation to the same land. Counsel

**' I**

**/£>**

*J*

**-I** Learned counsel for the applicant Mr. Kulumba-Kiingi replied. He contended that there is **Ll** Summons to Enter Appearance that the 3rd defendant was dead and that he was the one **/5 LI** actually administering the deceased'^s estate. Counsel argued that the failure to mention the applicant's name rendered the purported service bad in law. Counsel further submitted that **.1** it was not proper to sue the 3rd defendant, ^a dead man, deliberately. He submitted that the issue of Summons to Enter Appearance directed to the 3rd defendant-who--wasLdead\_was\_a **1** nullity. With regard toH. C. C. S. No. 510/95 learned counsel submitted that the said case has not yet proceeded to judgment. He contended that since in the said case Bulkhan Nkonge proceedings leading to the court order for substituted service were ^a nullity. Counsel argued **I** no way the Administrator General could know from reading an advert of a Notice of was named as the 1st defendant he was equally guilty of fraud. Counsel submitted that the

**I**

*ten—'*

**J**

that because the situation ofsuing a dead person is unknown to the Civil Procedure Rules the applicant relied 0.9 r.24 of the Civil Procedure Rules to bring this application. Counsel submitted that 0.5 r. 19(1) of the CPR had no application to this case because the 3rd defendant was dead. Counsel concluded his submissions by saying that the applicant has a good case on the merits.

Rule 24 of 0.9 of the CPR under which this application is brought provides:

"In any case in which a decree is passed exparte against a defendant he may apply to the court by which the decree was passed for an order to set it aside; and if he satisfies the court that the summons was not duly served , or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the *10* court shall make an order setting aside the decree against him upon such terms as to costs, payment into court, or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.-—"

i

The above rule requires an applicant to satisfy the court that either a summons had not been duly served on him or that he had been prevented from appearing when the case was called **/\_s** on for hearing by sufficient cause.

**^r** y

**1** See H. C. Admin. Cause No. 249/85

1. Hajjat Nuliati Mukalujemna Adek **'I** 2. Hajjat Maliamu Muteteri Adek

vs.

**I**

**J**

**r**

**r3**

**t³**

**T**

**j**

**T\***

**J**

**1**

Moses Ocititi Omona

$\lceil \rceil$

$\begin{bmatrix} 1 \\ 1 \end{bmatrix}$

$\begin{array}{c}\n\Gamma \\ \Gamma\n\end{array}$

$\begin{bmatrix} 1 \\ 1 \\ 1 \end{bmatrix}$

Before: Justice G. M. OKELLO (as he then was).

The likelihood of success of a defence is a factor which must be taken into consideration while dealing with this type of application. See Re DHUBULLO [1977] H. C. B. 75

Before: Justice LUBOGO (as he then was)

It is trite law that the fact that a decree has been executed is no bar for an application to set aside an exparte decree.

$10$

See Francis Xavier Gajuule Makumbi

$\text{vs.}\quad$

National Insurance Corporation. [1979] H. C. B. 230 at p. 231. Before: ODOKI Ag. J. (as he then was).

Delay and its possible effect in relation to witnesses are, of course, factors to be borne in mind in determining whether, looked at as a whole, the justice of the case requires that the case be re-opened so as to try it on its merits.

see the case of: MBOGO and Another V. SHAH (1968) E. A. 93 at p.96 "C" - "D" per SIR CHARLES NEWBOLD, P.

The above principles apply and are supposed to be followed in a normal situation when considering an application brought under O.9 r.24 of the CPR.

However, in the instant case there is an abnormal situation of a plaintiff who had prior actual knowledge that a person was dead but went a head and made such a dead person a defendant to a suit. Justice J. P. Berko (as he then was) entertained the suit and therein made several orders, namely:

(i) On 14.11.95 he allowed an application for joinder and ordered Joseph *J* **J** Serunkuma Nkalubo (a dead person) to be joined in the suit as ^a coorder for joinder and all the pleadings as at that date. defendant. He further ordered the deceased to be served with the

> On 2.5.1996 he granted an application for substituted service on the (ii) 3rd defendant, the late Joseph Serunkuma Nkalubo. However, no time Las fixed by the court for his appearance.

*I* **0**

**i**

On 31.5.1996 when the case came up for hearing and Joseph (iii) Serunkuma Nkalubo, who purportedly had been served by substituted service, failed to appear the learned judge ordered the case against the deceased to proceed ex parte.

**■J**

.-•u \_ **J**

**r1**

**r1**

**r1**

**J**

**J**

**I**

**1**

**1**

**'1**

i

On 4.6.1996 the learned judge, having entered judgment for the (iv) plaintiff, - Ordered that the name of Joseph Serunkuma Nkalubo (the 3rd defendant) be cancelled and revoked from the Certificate of Title **1** to the suit property.

Before making the very first Order for joining Joseph Serunkuma Nkalubo as a co-defendant **J** the learned Judge had two sources of information from which he knew without doubt that the said person was dead, namely:-

(i) Parags. 9 and 10 of the Original Plaint filed on 3.3.1995;

**r**

**u**

**'H**

**I**

**-'11**

**J**

**I ^In**

**"J J**

(ii) On 26.9.1995, during the examination-in-chief of one Edith Kisambira (PW.2) **J** who informed court that Joseph Nkalubo wad dead.

If I were an Appellate Court (which I am not) the task of dealing with this situation might have been easier. I would have considered whether or not the learned Judge, with all due respect to him, misdirected himself in making some of the said Orders or arrived at wrong decisions. Unfortunately, not being an appellate court ^I cannot do so. *I 0*

On the other hand, it is clear that the instant application was brought under 0.9 r.24 of the CPR. I have already stated the principles which are supposed to be considered and followed in determining applications brought under the said rule.

In an abnormal situation such as the one in the instant case the search for a correct decision or conclusion is quite strenuous. ^I am alive to the requirement that justice should look both **/S'** */* ways.

I am of the view that with all due respect to both learned counsel this application is founded **1** and argued on two basic misconceptions. The first misconception gripped counsel for the respondents when he submitted that the proper procedure was to sue the 3rd defendant no matter that he was known to be dead and then serve summons to Enter Appearance by

**r**

**■1**

substituted service. The second misconception gripped learned counsel for the applicant when he thought that the Administrator General, as the Legal representative of the 3rd defendant, could be joined to or substituted for the 3rd defendant who had been sued in his name long after he was dead.

Now I deal with the first misconception.

**u** It is pertinent to consider the law on survival of causes of action. It is to be found in The Law Reform (Miscellaneous Provisions) Act (Cap.74). S.13 (1) provides:

> • "Subject to the provisions of this section, on the death of any person after the ^I commencement of this Act all causes of action subsisting against or vested in him **^I |** \shall survive against, or as the case may be , for the benefit of his estate".

*10*

g#\*;\*

S.13 (7) provides:

"Subject to the provisions of this Act, the personal representative of a deceased person shall have the right to prosecute or defend any cause of action which has by virtue of this section survived for the benefit of or against the estate of such deceased **r** person".

**I** S.2 of the same Act defines "personal representative" as -

"in the case of a deceased person to whom the succession Act applies either wholly on in part, his executor or administrator".


In the instant application paragraph ¹ of the Affidavit of J. Kiyingi , the Assistant Administrator General states:- **-J**

> "1. That the Administrator - General of Uganda, Kampala is the administrator of the estate of the late Joseph Serunkuma Nkalubo (the 3rd Defendant) under Letters of Administration dated 4th October, 1993 granted by the court in High Court Administration Cause No. 378 of 1993."

In her Affidavit in Reply, the 1st Respondent, Teddy Kisambira, deponed in paragraph 6:

"6. That the plaintiff had no choice but to add the registered proprietors who had apply to court to serve the defendants by substituted service with the hope that if there was any legal representative he would apply to join the suit or would raise an objection to the proceedings if they were prejudicial to any body." been fraudulently registered by the 1st defendant and since the plaintiff had no . ⁱ' knowledge of who was the administrator of the estate of the deceased decided to

**/ o**

**r**

**p**

Under S. 184 of the Registration of Titles Act [cap.205] it is provided:

"No action of ejectment or other action for the recovery of any land shall lie or be **^I** sustained against the person registered as proprietor under the provisions of this Act - **II** II

This ^I provision seems to be the basis for the respondents' contention that they had no choice

**r-**

**I**

**11**

**I**

**I**

**JI**

**I**

but to sue the registered proprietor.

Parag. 3 of the Affidavit of J. Kiyingi stated:

"3. That according to the Land Register Book, the 3rd defendant together with one Abraham Nkolazifumba Ndaula, the 4th defendant were on 28th May, 1969 registered as the Joint Tenants/ Proprietors of the Mailo land comprised in Kyadondo Block 230 Plot Nos 2 and 3 as to 20.10 acres at Kamuli estate Kyadondo-----"

This is the suit property.

$\begin{array}{c} \begin{array}{c} \begin{array}{c} \begin{array}{c} \begin{array}{c} \end{array} \\ \end{array} \\ \end{array} \end{array}$

$\begin{array}{c} \begin{array}{c} \begin{array}{c} \end{array} \\ \end{array} \\ \begin{array}{c} \end{array} \\ \end{array} \end{array}$

$\mathbf{I}$

Action for the recovery of land is supposed to be brought against the person registered as proprietor.

The question which arises is:

Where such registered proprietor is known to be dead how is action against him to be instituted?

$15$

The Law Reform (Miscellaneous Provisions) Act in S.13 (7) provides the answer. It says:

"----------- the personal representative of a deceased person shall have the right to prosecute or defend any cause of action which has ----- survived for the benefit of or against the estate of such deceased person."

In the instant case the Administrator General was granted Letters of Administration on 4th Oct. 1993 to the estate of the 3rd defendant. So, on 14.11.1995 when Justice Berko ordered the said deceased to be joined in the suit as a co-defendant there was already in existence a Legal Representative.

$19$

I do not agree with the 1st respondent when she says that the plaintiff had no knowledge of who was the administrator of the estate of the 3rd defendant. I prefer the argument of learned counsel for the applicant on this point that:

(i) If the plaintiff approached the family of the 3rd defendant to inquire about the Certificate of Title he should have asked the said family who the deceased's Legal Representative was, Or

(ii) The plaintiff or his counsel could have inquired from the Administrator General whether or not the death of the 3rd defendant had been reported to him as required by law.

S.242 (1) of ±e Succession Act [Cap. 139] provides: *to*

"Probate or Letters of Administration shall have effect over all the property and estate, movable or immovable, of the deceased, throughout Uganda ".

S. 179 of the same Act provides:

**T¹**

**1**

**7\***

**I**

**li** r

**I**

**T**

**'1**

"The executor or administrator, as the case may be, of a deceased person is his Legal representative for all purposes and all the property of the deceased person vests in him as such." ^I

## **I** S. ¹⁹¹ of the same Act provides:-

"Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration has been granted at the moment after his death."


**I** For avoidance of all doubts s.264 of the Succession Act provides:-

**J**

**1**

"After any grant of Probate or letters of administration, no person other than the /• person to whom the same has been granted shall have power to sue or prosecute any suit or otherwise act as representative of the deceased, until such probate or Letters of administration has or have been recalled or revoked."

For purposes of the instant case the above provision puts ±e matter to rest as to who should have been sued by the plaintiff.

I now turn to the second basic misconception:

**T**

Whether the Administrator General, as the Legal representative of the 3rd defendant could be joined to or substituted for the 3rd defendant who had been sued in his name *io* long after he was dead.

/

/

The answer to the above situation has long history. In England, under the Common Law Procedure Act, 1852, there was no power to substitute as plaintiffs the representatives of a man who was dead when an action was commenced in his name.

CLAY V. OXFORD (1866) L. R.2 EX. 54 a case of the Court of Exchequer which discussed the equivalent of Order ¹ r.10 (1) of the Civil Procedure Rules it was held:

"Where an action is commenced in the name of a dead man, his representatives cannot be substituted as plaintiffs."

Later on, in England the Rules of Supreme Court, 1883 came into force and took the place of the Common Law Procedure Act, 1852.

Under the Rules of Supreme Court, 1883 Order XVI rr. 2 and 11 were relevant to the question now being considered. Rule 2 was similar, almost word for word, to the Ugandan O.1 r.10 (1) of the CPR; while Rule 11 was similar to a combination of the Ugandan O.1 $r.9$ and $r.$ 10 (2) of the CPR.

The case of: TETLOW V. ORELA LIMITED [1920]2 ch.24 discussed Order XVI rr. 2 and 11 of the Rules of Supreme Court 1883.

$\cdot$ $\cdot$

ţ

It was held:

$\n\begin{array}{c}\n1 \\ 1\n\end{array}\n$

"Where an action is commenced in the name of a dead man his representative cannot be substituted as plaintiff."

$\sqrt{6}$

$2\upsilon$

RUSSEL, J. at Page 26 explained the meaning of r.2 of Order XVI (the equivalent of our rule 10 (1) of O.1 CPR):

"In my opinion that rule means that where an action has been commenced between two living parties by a living plaintiff, and the living plaintiff afterwards turns out to be the wrong person, an application may be made to the court, and the court can substitute another person for the living plaintiff or may add another person as coplaintiff as the case may be."

Of r. 11 of O. XVI(the equivalent of our O.1 r.9 of the CPR) the learned Judge said: "It so far contemplates only causes or matters having living persons as parties actually

$\mathcal{K}6$

$22$

before the court".

The learned Judge then considered another part of r. 11 (the equivalent of our 0.1 r.10 (2) of the CPR and said:

"In my opinion the names of "parties improperly joined" and the names of "parties who ought to have been joined are, within the meaning of that rule, the names of living persons."

**I**

**F P'**

**I'**

**k**

*I*

In the case of:

r

**J**

**r!I**

**r.**

**5 1 I**

**I**

**I**

**I ii**

**1 I**

**I 1**

**1**

DAWSON (BRADFORD) Ltd and Others V. DOVE and Another [1971] ¹ Q. B. 330 Mac KENNA J. considered rules of 1965 namely: **¹** R. S. C. Ord. ¹⁵ r.6 (1) which is equivalent to our 0.1 r.9 of the CPR and R. S. C. Ord. ¹⁵ **/o** r.6 (2) equivalent to our O.lr.lO (2) of the CPR.

The learned Judge discussed the two authorities of:

CLAY V. OXFORD (supra) and TETLOW V. ORELA LTD. (supra) on the meaning of Ord. 15 r.6.

At page ³³⁴ - "G" to "H" the learned Judge said: **zs**

"If 0.16 r.ll of the Rules of ¹⁸⁸³ did not, as RUSSELL, J. held, enable an action commenced in the name of a deadman to be continued in the names of the executors, **1** it must follow, ^I think, that an action commenced against ^a dead man could not have **r** been continued against his executors. The language of the rule made no distinction **1** between the power of striking out and adding plaintiffs and that of striking out and *2^0* adding defendants. If there were no power under the rule to put matters right where

there had been no living defendant." there had been no living plaintiff, the rule must have been equally in effective where

At page 335 "A" the learned Judge said:

T

**]**

**J**

**I**

"If the "parties" referred to in the rule were only living persons the rule must have excluded the case of dead defendants as well as that of dead plaintiffs". *5*

Ord. 15 r.6 of the Rules of 1965 combines the provisions of the old Ord. 16 rr. 2 and ¹¹ with each other and with those of the old Ord. 16 rr. 5,8 and 39, which are for my purpose immaterial. It adds nothing to rules 2 and 11 which could make the new rule apply to dead plaintiffs or defendants if the old rules did not. I conceive it to be my duty to follow those old cases unless convinced that they were wrongly decided, which ^I am not." / ^O

r

\*

i

•!

I

I have already stated that 0.16 r. 2 was the same as our 0.1 r. 10 (1) of the CPR; and that Ord. 16 r. 11 was the same as our 0.1 rr.9 and 10 (2) combined of the CPR.

The decision in the Dawson case approved an earlier old decision in the TETLOW case. The said cases construed the provisions of the English Rules which are in all respects similar to our Rules. In my view those decisions are of great persuasive authority to this court.

During the course of hearing the instant application I asked either counsel to produce to court authorities for his submission on these points, but none of them did so.

decision of the High Court of Tanganyika made by LAW, J.it was held that: In the case of BABUBHAI DHANJI PATHAK v. ZAINAB MREKWE [1964] E. A. 24 - a

**J i /**

**I**

**I**

(i) A suit instituted in the name of a dead person is a nullity.

(ii)

**J**

**41**

**r1**

**rJ**

**r3**

**5**

**T¹**

**J**

**41**

**J**

**I**

**1**

**I**

**I**

**J1**

F-

**J¹**

suit has been filed in the name of a wrong person can only be exercised where the "wrong person" is living at the date of instituting the suit arid has no application where the "wrong person" is dead at such date". The power conferred by Order 10 r.l to substitute a plaintiff where a

In that case the court was construing the provisions of Order 10 r.l (1) in the first schedule to the Indian Civil Procedure Code which is similar to our Ugandan 0.1 r.10 (1) of the CPR. *IO* who had been dead for 45 days before the suit was instituted in her name,was an order made without jurisdiction and was therefore void and of no effect. In the said case LAW, J. further held that an order of the lower court which was made ordering the substitution of another person as plaintiff in the place of the original plaintiff

In the case of DAWSON (BRADFORD) Ltd and others v. DOVE and Another (supra) at **K** page 336 "E" Mac^ENNA, J. made the following order:

"I order that the writs in three actions and all subsequent proceedings be set aside **1** defendant) was already dead". on the ground that, at the dates when the writs were issued F. W. Dawson (the

!

Administrator General, as the Legal representative of the 3rd defendant can be joined to or substituted for the 3rd defendant in the instant case. The 3rd defendant was sued in is name long he was known to be dead. In the present state of our Civil Procedure'Rules it nullity. There is no power under the Civil Procedure Rules to amend the plaint by substituting the executors or administrators of the deceased's estate in astatine place of the deceased. On the authority of the said cases my view is that it is a misconception to say that the appears to me that a suit filed against a dead person, naming him as a defendant, is a

' '

**I**

*l*

**I** *I*

**r**

**i**

I

**15**

On 21.11.97 both learned counsel agreed not to argue the application by the Administrator **i:** general, as the Legal representative of the 3rd defendant, to be made ^a co-defendant to the *>o* suit. This court was requested to record that by consent of both counsel the application be allowed with no order as to costs. So by consent of both counsel the Administrator General **I** was allowed to be added or substituted for the 3rd defendant.

> It is my view that if the act of filing a suit where a dead person is named as defendant is a nullity the courts will treat everything founded thereon as a nullity.

**I** ^A court of law cannot sanction what is illegal and illegality once brought to the attention of court, overrides all questions of pleading, including any admissions made thereon.

> See Makula International Ltd vs. Cardinal Nsubuga and Another [1982] H. C. B. 11. This as a Court of Appeal decision.

**■J**

**!>■**

**J**

**J**

**I**

**I**

There is no doubt as to the jurisdiction of this court in a proper case to set aside its own order.

$27$

S.101 of the Civil Procedure Act [cap 65] provides:

"Nothing in this Act shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as amy be necessary for the ends of Justice or to prevent abuse of the process of the court."

In my view the court can, and should always, step in to correct an illegality. It is my considered opinion that instituting a suit in the name of a dead person as defendant is a nullity and perpetuating such a suit amounts to an abuse of the process of the court. In my view this is a proper case for this court in the exercise of its inherent jurisdiction and the better to attain the ends of justice, to set aside the judgment and decree and all proceedings against the 3rd defendant.

$10$

$15$

The fact that a judgment has been satisfied and execution completed is not a good reason for not quashing a judgment which was a nullity since an execution completed under such a judgment is void ab initio.

see KALOLI MUBIRU and 21 others v. EDMOND KAYIWA and five others [1979] H. C. B. 212 - a decision of the court of Appeal for Uganda.

It is accordingly ordered that the ex-parte judgment and order of this court dated 4.6.1996. so far as it affects the 3rd defendant be and is hereby set aside, and the suit against the 3rd.

defendantt^and is hereby struck out as in competent, null and void.

costs of this application. Though the application appears to have been allowed but because of the misconception on •'\* Part counse^l on'either aside it is hereby ordered that each party should b£ar his own

LUKIIBI I^so order. MOSE& b¹

AG. JUDGE **J** 5.3.98

**r F**

**Wv** kv dir /

**1**

**I**

**1**

**1**

**J** 5.3.98 at 3.00p.m.

**J**

**I**

**£**

/

**I**

Teddy Kisambira & Elias Kisambira-**1** two of the respondents in court. Mr. Kulumba-Kiingi for the applicant. Mr. Matovu - absent.

Nakiwendo - Court clerk.

Ruling delivered

MOSES MUKIIBI

AG. JUDGE

5.3.98



THIS APPLICATED coming before we for hearing and final disposal in the presence of adjudBA-KIIRGI Bag. Advocate, Counsel for the Applicants and LimbWl Esi. Advocate, Counsel for the Defendants:

## IT IS WELFY ORDERED as follows:-

1. Poll the Ex-PARTS Judgement and ORDER of this Court dated 4th June 1996 in so fur as it affects the 3rd Defendant: $\frac{1038271}{10000000}$ be and in hereby $\mathbb{S}_\omega\mathbb{R}^n\to \mathbb{S}_\omega\mathbb{I}_\omega\mathbb{I}_\omega$

2. Mid law built gainst the led befordent as and is neverly SuboW One is incompendent.

CIVAL mater a rem and send of Court bits. .... day of BID CK 230 prot 7 DEPUTY REGISTRAR. ती गरह