[2023] UGHCLD 389

### **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KAMPALA**

#### **(LAND DIVISION)**

### **CIVL SUIT NO.0902 OF 2022**

**KANTINTI EDWARD MBAZIRA :::::::::::::::::::::::::::::::::::::::::::::::::: PLAINITFF (The legal representative of James Kantinti)**

#### *VERSUS*

**1. LUMALA MOSES**

## **2. TIMOTHY KAMYA**

## **3. THE COMMISSIONER LAND REGISTRATION ::::::::::::::::::::::::::: DEFENDANTS**

# **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

## **RULING ON A PRELIMANARY OBJECTION.**

## **Introduction:**

**1.** This is a ruling in respect of a preliminary objection that was raised by the 2nd defendant during mention. The objection is based on a claim that the plaintiff's suit is incompetent for want of locus to sue, suit being time barred and an abuse of court process. Both parties were directed to file submissions regarding the preliminary objection and the same was complied with.

## *Background:*

**2.** The plaintiff filed HCCS No.0902 of 2022 in this honorable court as a legal representative of the Estate of the Late James Kantinti for orders that; the suit Land Kibuga Block 7 Plot 109 is the property of the plaintiff, that the 1st defendant acquired the suit land illegally and fraudulently, the title deed issued in respect of the suit land and held by the 1st defendant ought to be cancelled as it was fraudulently and illegally acquired, permanent injunction restraining the defendants from carrying out any transactions on the suit land and any other relief court may deem fit.

- **3.** The second defendant in his submissions states that the plaintiff lacks locus to institute this suit and that the order the plaintiff relies on that vests him with the capacity of a legal representative, is an order that was issued in a different suit by court for purposes of proceeding with the said suit and the suit was determined by court. The 2nd defendant submits that the plaintiff's lack of locus leaves his plaint with no cause of action against the defendants. The 2nd defendant further submits that the plaintiff's action is time barred by the law on limitation and that it is an abuse of court process. - **4.** The plaintiff in his submissions in reply states that he has the legal capacity to institute the suit and that the plaint discloses a cause of action. The plaintiff further states that court clothed him with the legal representative capacity through the order issued by the same court and that the plaintiff holds a cause of action against the defendants. The plaintiff alleges in his submissions that the claims by the second defendant that the suit is time barred by the law of limitation and that the suit is an abuse of court process are baseless and are not supported by any facts.

## *Representation:*

**5.** The plaintiff was represented by Katongole Arthur of M/S Katongole & Co. Advocates whereas the 1st defendant was represented by Mr. Banada Lawrence of M/S Birungi & Co Advocates, Mr. Seguya Samuel of Sseguya and Co. Advocates for the 2nd defendant and the 3 rd defendant was represented by Ms. Arinaitwe Sharon from the office of the Commissioner land registration.

## *Issues to be determined by court:*

**6.** i) Whether the plaintiff has locus standi to institute the suit?

ii) Whether the plaintiff's suit is time barred by the law on limitation?

#### *Resolution of the issues*

#### *Issue 1: Whether the plaintiff has locus standi to institute the suit?*

- **7.** Parties seeking justice before Ugandan courts must present their cases in compliance and conformity with both substantive and procedural law. - *8.* Therefore before a litigant seeks to invoke the inherent powers of court or discretion or exercise of its inherent powers as to remedies, it is often incumbent upon the party coming to court to ensure that he or she is clothed with the appropriate ability to move court and to set the law in motion otherwise court would strike out and dismiss or discontinue such suits.(*See; Yuriko Investment Company Limited Vs Administrator General & Another, Civil Suit no.271 of 2018 before Lady Justice Florence Nakachwa.)* - **9.** The rationale behind locus standi is to protect court from busybodies that file suits without sufficient interests in them as well as ensuring that remedies are sought for in court by the appropriate persons in other words the proper plaintiffs, it's a set of principles that govern whether an individual or group may bring an action with respect to specific issues. - **10.** Further, I concur with the decision of my learned brother Hon. Justice Mubiru in **Dima Domnic Poro Vs Inyani and Anorther, Civil Appeal No.17 of 2016**) where the learned judge observed that the determinant for locus standi is whether the plaintiff has a sufficient

interest in the matter. For one to be clothed with locus standi to bring a suit, he or she has to demonstrate by his or her pleadings that he or she has a cause of action which is achievable and such can only be achieved where the suit is brought by the proper plaintiff.

- **11.** By the notion proper plaintiff, I mean the person who is entitled to remedies sought for in the pleadings assuming the averments made therein are true and also involves a question of capacity. In my view, it would be preposterous for court to entertain a matter brought by a person without actual capacity to bring such a suit. Such capacity must be one of a right or derived from a particular provision of the law, for instance the capacity to bring a suit as a beneficiary of an estate even without the letters of administration is one of right whereas the capacity to bring an action in a representative capacity is one derived from the civil procedure rules. - *12.* Locus standi is a point of law that literally means a place of standing, right to appear or heard in court. To say that a person has no locus standi means that the person has no right to appear or be heard in specified proceedings. In determining such a point, court is perfectly entitled to look at the pleadings and the attachments only. *(See; Mukisa Biscuits Vs West End Distributors (1969) EA 696.)* - **13.** I concur with submissions of counsel for the 2nd defendant that a legal representative is defined to mean that person given authority to represent another person in a court of law and can be a holder of powers of attorney, a person appointed by court or a holder of letters of administration or probate. - **14.** The Succession Act Cap.162 under Section 191 prohibits any action in respect of deceased property. unless the letters of administration have been granted by court of competent jurisdiction. Further sections 192 and 164 of the succession act Cap. 162 empowers those

with letters of administration to bring and sustain legal actions or suits on behalf of the estate in respect of which they hold the said letters of administration, the law considers such persons as legal representatives of the estate of the deceased.

- **15.** Referring to the plaint on the face of it, the plaintiff discloses how he is the legal representative of the estate of the late James Kantinti, however the same is not stated anywhere in the plaint. The order the plaintiff relies on as per the submissions of the plaintiff, that vested him with such capacity emanates from a different suit, HCCS No.0261/2011 before learned Justice Keitrima John Eudes, where the leaned judge ordered that Edward Kantinti(son to the deceased) who was in court shall be the legal representative of(James Kantinti) the defendant for purposes of proceeding with the said suit and could be made a party to the suit. The order was only valid for purposes of proceeding with the said suit. - **16.** Where a party institutes a suit as a legal representative of the Estate of the deceased, he or she ought to adduce in his pleadings speaking to the same fact. In the instant case the plaintiff discloses how he is the legal representative of the estate of the Late James Kantinti but he does not attach any evidence to prove the same but rather relies on an order of court from a different suit where the order was only valid for the proceedings in that very suit not in other subsequent suits. - **17.** If the plaintiff wishes to protect the Estate of the Late James Kantinti, then he ought to institute a suit as a beneficiary to the said estate but not as the legal representative of the Estate of the Late James Kantinti. - **18.** This honorable court will be defeating the intentions of the framers of the Succession Act Cap. 162 in case it entertains suits instituted by persons under capacity of a legal representative of the Estate of the deceased without valid evidence to prove the same.

- **19.** In consideration of the foregoing, the first issue is resolved in the negative. The plaintiff does not have the locus standi to bring this suit as a legal representative of the deceased person. - **20.** Upon determination of the first issue, this court finds no purpose to resolve and determine the other issue. - **21.** In consideration of the foregoing, the preliminary objection on lack of locus has merit and the same is upheld with the following orders; - i) That Civil Suit No.0902 of 2022, Kantinti Edward Mbazira Vs Lumala Moses & Anor is dismissed for lack of locus to sue. - ii) Costs are awarded to the defendants.

**…………………………..**

**I SO ORDER.**

# **NALUZZE AISHA BATALA**

# **JUDGE**

**16th /10/2023**