[2024] UGHCFD 41

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

## **[FAMILY DIVISION]**

#### **MISCELLANEOUS APPLICATION NO. 522 OF 2024**

**(ARISING FROM ADMINISTRATION CAUSE NO. 2505 OF 2008)**

**IN THE MATTER OF THE ESTATE OF HIS HIGHNESS SIR**

#### **DAUDI CHWA II**

**PRINCE SAIDI KATEREGA :::::::::::::::::::::::::::: APPLICANT** (SUING THROUGH HIS LAWFUL ATTORNEY MAWANDA DAVID)

#### **VERSUS**

### **1. PRINCE DAVID NAMUGALA MAWANDA CHWA 2. PRINCESS GLADYS NANDAWULA KYAKUSE:::: RESPONDENTS** (ADMINISTRATORS OF THE ESTATE OF THE LATE SIR DAUDI CHWA II)

#### **RULING BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **1. Introduction:**

- 1.1 This application is brought by way of Notice of Motion under Section 98 of Civil Procedure Act, Cap. 282, Section 37 of the Judicature Act, Cap. 16 and Order 52 Rules 1 & 3 of the Civil Procedure Rules, Statutory Instrument No. 71- 1 seeking orders that; - **1. The Applicant be added to the list of beneficiaries to the Estate of the Late His Highness Sir Daudi Chwa II entitled to his estate.** - **2. The Applicant be considered by Court or the Administrators of the Estate of the His Highness Sir Daudi Chwa II to equally benefit from the Estate.** - **3. An order directing the Respondents to avail the Applicant with an inventory of the Estate of the Late His Highness Sir Daudi Chwa II.**


- **4. Any order court may consider just and equitable to dispose of this Application or to distribute the Estate of the Late His Highness Sir Daudi Chwa II.** - **5. Costs of this application be borne by the Respondents.** - 1.2 The grounds of this application are set out in the Notice of Motion and in the affidavit in support of the application in summary that; - **(a) The Applicant is the son and direct beneficiary of the Estate of the Late His Highness Sir Daudi Chwa II.** - **(b) At the point of presenting the Petition for Letters of Administration, the Respondents never listed or mentioned the Applicant as the son and beneficiary of the Estate of the Late His Highness Sir Daudi Chwa II.** - **(c) The Respondents have side-lined the Applicant from the distribution process, neither have they provided any account to him or inventory regarding distribution of the property belonging to the Estate.**

**(d) It is just and equitable that the order be granted.**

#### **2.0. Representation and hearing:**

- 2.1. At the hearing of this application on 17th May, 2024, the Applicant was present together with his lawful attorney, Mawanda David and was represented by Mr. Kiyanga Stephen of KOB Advocates and Solicitors while the 2nd Respondent was present and represented by Mr. Tumwebaze Erias of Mugarura, Kwarisiima & Co. Advocates. - 2.2. Counsel for the Applicant filed this application together with written submissions while the 2nd Respondent's counsel filed an affidavit in reply on 31st May, 2024 and written submissions on 11th June, 2024. The 1st Respondent did not participate in this application. - 2.3. The Applicant filed an affidavit in rejoinder on 9th July, 2024 and supplementary affidavits in support of the notice of motion sworn by Nakijjoba Florence and Nnalinya Beatrice Mutebi Namikka.


# **3.0. The Applicant's case.**

- 3.1. The Applicant suing through his lawful attorney, Mawanda David states that Prince Saidi Katerega is the son and direct beneficiary of the Estate of the Late His Highness Sir Daudi Chwa II entitled to his Estate and should therefore be added to the list of his beneficiaries. - 3.2. The Respondents have continuously neglected or refused to mention to court or list the Applicant as one of the direct beneficiaries of the Late His Highness Sir Daudi Chwa II. - 3.3. The Applicant is entitled to receive from the Respondents an inventory of the properties belonging to the Estate of His Highness Sir Daudi Chwa II. - 3.4. There is a danger that while distributing the Estate, the Applicant may be left out yet he is a direct beneficiary to the Estate whose distribution he prays should be stayed until determination of this application. - 3.5. It is in the interest of justice that this application is allowed.

# **4.0. The Respondents' Case**

- 4.1. The 2nd Respondent, Princess Nnalinya Gladys Nandawula Kyakuse (one of the Administratrix of the Estate of the Late His Highness Sir Daudi Chwa II), filed an affidavit in reply opposing the application. - 4.2. The 2nd Respondent averred that Prince Saidi Katerega is not a son of His Highness Daudi Chwa II who made a list of all his children including those who were three (3) years old by the time he died in 1939. By leaving out the Applicant who was then ten (10) years old by the time of his demise it meant that he was not his son. The list of the children included his wives and mothers of all the children but never included the Applicant and mother of the Applicant.


- 4.3. That the Applicant was never known at the time of applying for Letters of Administration for the estate of the Late His Highness Sir Daudi Chwa II. - 4.4. As an administratrix, the 2nd Respondent has no power to include Prince Saidi Katerega as a beneficiary yet he is unknown to her and was never mentioned by the Late His Highness Sir Daudi Chwa II as his child in his Will and that she knows that all the children of the Late His Highness Sir Daudi Chwa II are all deceased. - 4.5. That the Applicant ought to have claimed that he was a child of His Highness Sir Daudi Chwa II during the days of Sir Edward Muteesa II and Prince Mawanda when they were still alive and who were also children of Late His Highness Sir Daudi Chwa II as per the Will. The Applicant has been quiet all these years since the death of the Late His Highness Sir Daudi Chwa and is now coming up when he is 96 years old (now 97 years) to make these claims. - 4.6. The Applicant has never been recognised by anyone, any clan lineage or elders of the family and by the office of princes and princesses of Buganda as a child of His Highness Sir Daudi Chwa II. That the correspondences attached by the Applicant are ambiguous, some unsigned and were made by people without authority in the affairs of the family or Estate of the Late His Highness Sir Daudi Chwa II. - 4.7. The 2nd Respondent averred that she would raise a preliminary objection that the suit is bad in law, frivolous and an abuse of court process. That the application was filed on 9th April, 2024 using a Power of Attorney dated 11th July, 2022 which was signed by the Respondents but which the 2nd respondent revoked on 19th March, 2024. The Power of Attorney was in fact donating powers to a one, Mukiza Joseph not Mawanda David. Therefore, Mawanda David did not have Powers of Attorney to institute this application on 9th April, 2024.


4.8 Counsel for the 2nd Respondent further submitted to this court that the 1st Respondent did not participate in this application because he was stopped by this Honourable Court from further acting as an administrator of the Estate of the Late His Highness Sir Daudi Chwa

II **vide Miscellaneous Application No. 747 of 2022 (Arising from Civil Suit No. 285 of 2017) vide Prince Semakokiro Henry Kalemera & 2 Others Versus Prince David Namugala Mawanda** *(Letters of Administration for the Estate of the His Highness Sir Daudi Chwa dated 19th October, 2008)* hence, the Applicant has no cause of action against the 1st Respondent.

# 5.0 **The Applicant's Rejoinder**

- 5.1. In rejoinder, the Applicant contended that Mawanda David had powers to represent Saidi Katerega which were registered on 28th April, 2023 and it was a mistake of counsel who attached the wrong powers of attorney and therefore a mistake of counsel should not be visited on him an innocent litigant. - 5.2. His Highness Sir Daudi Chwa II left 390 Acres and 13 decimals in his Will for his children but he has not received his share as per the Will. - 5.3. The Respondents got the Letters of Administration in 2011 and the Applicant was initiated around 1995 when he was introduced in the Buganda Kingdom and therefore the administrators had to ensure that he gets a share of the land left by His Highness Sir Daudi Chwa II.

# **6.0. Issues for Determination by the court.**

- 6.1. Four issues are up for determination by the court, namely; - a) Whether the preliminary objections by the 2nd Respondent have merit?


- b) Whether the Applicant is a beneficiary of the Late His Highness Sir Daudi Chwa entitled to benefit from his Estate? - c) Whether the Applicant has sufficient grounds for this application/whether this application has merit? - d) What remedies are available to the parties?

## **7.0. Determination of this application**

This court has considered the submissions of each respective party in determining this application. I intend to resolve one issue which will dispose of all the other issues that is; *whether the preliminary objections by the 2nd Respondent have merit?*

#### **8.0. Submissions of the parties**

- 8.1. The 2nd Respondent averred in her affidavit in reply that the suit is bad in law, frivolous, and an abuse of court process. The Applicant filed his application on 9th April, 2024 using Powers of Attorney dated 11th July, 2022 which were signed by the 1st and 2nd Respondents but which had been revoked by the 2nd Respondent on 19th March, 2024. In addition, the Power of Attorney were giving powers to Mukiza Joseph and not Mawanda David (acting for Prince Saidi Katerega). - 8.2. According to the 2nd Respondent, Miscellaneous Application No. 522 of 2024 (Arising from Administration Cause No. 2505 of 2008) was filed without a valid Power of Attorney or without any Power of Attorney which makes the application defective. The 2nd Respondent therefore contended that the application is bad in law because an attorney cannot institute a suit with a wrong or no Power of Attorney at all. The 2nd Respondent contended that the application is therefore an illegality and should be struck off with costs. - 8.3. Without the leave of court, the Applicant went ahead and filed Supplementary Affidavits in support of the Notice of Motion. One

 was sworn by Nakijjoba Florence on 9th July, 2024 stating that she is referred to as "Jjaja" Nakijjoba and she performs the rituals that confirm the paternity of Kabaka's children. She confirmed that she performed the ritual on the Applicant who was presented by Nnalinya Nakabiri and Nnalinya Ssangalyambogo to confirm whether the Applicant is a child. The other supplementary affidavit, sworn on the same date 9th July, 2024 was by Nnalinya Beatrice Mutebi Namikka who stated that all Nnalinya's in Buganda Kingdom were well conversant with the facts and as the Nnalinya (custodian of the tombs) she was responsible for the Kasubi Tombs and first met the Applicant in 1995 at the burial of an auntie. She further stated that the cultural wives of the Late Kings in Kasubi Tombs assured her that Prince Katerega Saidi had gone through all the necessary cultural rituals and is a son of His Highness Sir Daudi Chwa II.

8.4. In response to the Preliminary Objection, the Applicant stated that true Powers to Attorney for Prince Saidi Katerega were given to Mawanda David and were registered on 28th April, 2023 and that it was a mistake of his counsel to attach the wrong Powers of Attorney. The Applicant contended that the mistake of his lawyers should not be visited on him the innocent litigant.

## **Supplementary Affidavits**

- 8.5. In resolution of this application, I intend to first deal with the Supplementary Affidavits filed in this honourable court on 9th July, 2024 by the Applicant without leave of court. The Applicant upon being served with the Affidavit in Reply went ahead and filed Supplementary Affidavits. - 8.6. **Order 8 rule 18 (1) of the Civil Procedure Rules S. I 71-1** provides that the Plaintiff/Applicant shall be entitled to file a reply within


fifteen (15) days after the defence (affidavit in reply) or the last of the defences has been delivered to him/her, unless the time is extended.

- 8.7. **Order 8 rule 18 (2) (supra)** further provides that no pleading subsequent to the reply shall be filed without leave of the court, and then shall be filed only upon such terms as the court shall think fit. - 8.8. On 17th May, 2024 when the parties appeared before this court, directives were given on serving the written submissions by the applicant to the respondent, then 15 days for the Respondent to reply file and serve and 15 days for the Applicant to file his rejoinder, file and serve. The 2nd Respondent filed her Affidavit in Reply on 31st May, 2024 and served it on the Applicant. The Applicant then filed a Rejoinder and supplementary affidavits on 9th July, 2024 which was clearly out of time and without first seeking the leave of Court hence contravening the law under Order 8 rule 18 (1) & (2) of the Civil Procedure Rules. - 8.9. Under Order 8 rule18 (2) (supra), parties are given mandate to seek leave where pleadings are deemed closed and this leave is discretionary. As such, the Rejoinder and Supplementary Affidavits filed on 9th July, 2024 in this honourable court out of time and without the leave of court are hereby expunged and stuck off the court record together with all supporting annexures thereon for being irregularly filed.

## **Powers of Attorney dated 11th July, 2022**

8.10. A Power of Attorney according to the *Osborn's Concise Law Dictionary, 11th Edition, page 315* is a deed by which one person empowers another to represent or act in his stead either generally or for specified purposes.

8.11 In the case of **Gold Trust Bank (U) Ltd versus Josephine Zalwango Nsimbe HCCS 226 of 1992**, a Power of Attorney was


defined as an instrument conferring authority of the principal to the agent where such authority is required to be conferred by a deed, or where, in any other circumstances, it is desired formally to appoint an agent to act for the principal in one transaction or a series of transactions, or to manage the affairs of the principal generally.

- 8.12. The evidence before this court indicates that the Power of Attorney marked as **annexure "A"** to the affidavit in support of the Notice of Motion was duly registered with the Registrar of Documents on 21st July, 2022. A review of the said Power of Attorney shows that the Donors therein were both the 1st and 2nd Respondents herein and the Donee is Mukiza Joseph. - 8.13. In the case of **Fredrick Zaabwe versus Orient Bank Ltd and 5 Others, SCCA 04/2006,** it was stated that *"a donee of a Power of Attorney acts as an agent of the donor."* - 8.14 Guided by the above decision, the donee on the said Power of Attorney being Mukiza Joseph, he would have been the lawful attorney for the Applicant and not Mawanda David. - 8.15 **Order 52 Rule 3 of the Civil Procedure Rules S. I 71-1** provides that *"every notice of motion shall state in general terms the grounds of the application, and, where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion".* - 8.16. This application is therefore deemed fatally defective due to noncompliance with the above specific rule. Proper documentation ought to have been filed along with the application and therefore being that there are no valid Powers of Attorney for Mawanda David to support this application by Notice of Motion, the application has no grounds and is therefore baseless.


- 8.17. I shall therefore strike out the application due to the defective Powers of Attorney which I have considered invalid for they did not belong to Mawanda David, the claimed lawful attorney for the Applicant. I find that the omission in presenting the necessary details in the Notice of Motion and its supporting Affidavit in support are so fundamental and therefore deprive the court from entertaining this application. - 8.18. The Applicant can no longer rely on the slipped in Powers of Attorney filed with the Rejoinder since the Rejoinder was struck out for being filed out of time and without the leave of court.

## **Cause of Action by the Applicant against the 1st Respondent-Prince David Namugala Mawanda Chwa.**

- 8.19. Counsel for the 2nd Respondent submitted to this court that the 1st Respondent did not participate in this application because he was stopped by this Honourable Court from further acting as an administrator of the Estate of the Late His Highness Sir Daudi Chwa II **vide Miscellaneous Application No. 747 of 2022 (Arising from Civil Suit No. 285 of 2017) vide Prince Semakokiro Henry Kalemera & 2 Others Versus Prince David Namugala Mawanda** hence, the Applicant has no cause of action against the 1st Respondent. - 8.20. I have observed that the Letters of Administration for the Estate of the Late His Highness Sir Daudi Chwa II vide Administrative Cause No. 2505 of 2008 issued on 19th October, 2011 do not include the 1st Respondent as an Administrator of the Estate of the Late His Highness Sir Daudi Chwa II. - 8.21. Decided cases have found that a cause of action is established if the *"plaint shows that the plaintiff enjoyed a right, that the right has been violated and that the Defendant is*


*liable."* See the cases of **Auto Garage and Others versus Motokov (No3) [1991] EA 514 at page 519D Spry V. P and Tororo Cement Co. Ltd versus Frokina International Ltd SCCA No. 2/2001** where Oder JSC emphasized that *"...in order to determine whether the plaint discloses a cause of action, it is important to look at the plaint in its entirety vis-à-vis the elements of the cause of action stated in the Auto Garage case."*

- 8.22. I find that the Applicant does not have a cause of action against the 1st Respondent as he is not included among the administrators of the Estate of the Late His Highness Sir Daudi Chwa II in the Letters of Administration Letters of Administration issued on 19th October, 2011 vide Administrative Cause No. 2505 of 2008 for the Estate of the Late His Highness Sir Daudi Chwa II. - 8.23. In conclusion and basing on the reasons hereinabove stated, I find that this application has no merit. This application is therefore dismissed with costs to the Respondents.

*Dated, Signed and Delivered by email this 31st day of July, 2024.*

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ CELIA NAGAWA JUDGE**