[2024] UGHCFD 43

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (FAMILY DIVISION)

## CIVIL APPEAL NO. 10 OF 2023 (ARISING FROM ENTEBBE MISC. APPLICATION NO. 142 OF 2021) (ALL ARISING FROM CIVIL SUIT NO. 057 OF 2013)

#### OKIA CLEMENT AKIAS :::::::::::::::::::::::: **.....................................**

#### **VERSUS**

| 4<br>$\mathbf{1}$ | | | BYEKWASO OSCAR JUDE | | | |-------------------|--|--|---------------------|--|--| | | | | | | |

2. KIZITO GREGORY

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## Before: Hon. Lady Justice Dr. Christine A. Echookit

## JUDGEMENT

#### **BACKGROUND:**

This appeal is brought under Section 220(1)(a) of the Magistrates Court Act on the grounds that the learned trial magistrate erred in law and fact when she held that there was no evidence on record that the persons entitled to administer the deceased's estate were unable or unwilling to act as such; and that the learned trial magistrate erred in law and fact when she dismissed Misc. Application No. 142 of 2021.

The appellant filed Civil Suit No. 57 of 2013 against MITI PAUL and MUGISHA MASESANE EMMANUEL and the same was decided in the appellant's favour against MITI PAUL and was dismissed as against the 2^nd defendant. It was reported that **MITI PAUL** died on the 25^th day of October 2018 before the appellant could execute the decree.

The appellant then filed Miscellaneous Application No. 142 of 2021 under Section 222 of the Succession Act, Sections 96 and 98 of the Civil Procedure Act and Order 52 rules 1 and 3 of the Civil Procedure Rules against the respondents who are biological children of the late MITI PAUL, seeking for the appointment of the respondents as administrators' ad litem of the estate

of the late PAUL MITI for purposes of proceeding with the case. Misc. Application No. 142 of 2021 was dismissed on grounds that the respondents were not willing/did not consent to be appointed as administrators' ad litem, hence this appeal.

## **HEARING AND REPRESENTATION:**

Counsel Obiro Ekirapa Isaac of M/s Ekirapa & Co. Advocates represented the appellant while counsel Sserunkuma Bruno of M/s Bwanika & Co. Advocates represented the respondents. The parties filed written submissions.

Before determining the grounds of appeal, this court will address a preliminary point of law raised by the respondents.

# PRELIMINARY OBJECTION BY THE RESPONDENTS:

1. Whether the appeal is Competent.

# Respondents' submissions on a preliminary point of law:

It was submitted for the respondents that this being a first appeal, this court is under an obligation to re-hear the case by subjecting the evidence presented to the trial court to a fresh and exhaustive scrutiny and re-appraisal before coming to its own conclusion. The respondents cited the case of Fr. Narsensio Begumisa and 3 others Vs Eric Tibebaga SCCA No. 17 of 2002 and Selle Vs Assoc. Motor Boat Co. [1968] EA 123 at 126 which stated "....the duty of the first appellate Court is to re-hear the case by considering the evidence on record, valuate it itself and draw its own conclusions, in deciding whether the judgment of the trial Court should be upheld, as well as of course, to deal with any question of law raised on appeal".

The respondents also cited the case of Samuel Karekyezi Vs The Registered Trustees of Church of Uganda H. C. C. A No. 17 of 2011 (at Kabale) (unreported) where the High Court stated; "This Court being the first appellate Court has the duty to evaluate the evidence as a whole and arrive at its own conclusion. The first appellate Court does re-evaluation of the evidence on record of the trial Court as a whole weighing each party's evidence keeping in mind that the appellate Court unlike the trial Court had no chance of seeing and hearing the witnesses while they testified and therefore, the appellate Court had no benefit of assessing the demeanour of the witness".

In view of their submissions as to the role of the first appellant court, the respondents then raised a preliminary objection to the effect that the appellant's appeal before this Honourable Court is incompetent for lack of leave of court to file the same. They submitted that the court order dismissing the appellant's Misc. Application No. 142 of 2021 at the Chief Magistrates Court of Entebbe at Entebbe is not one of the orders which are appealable as of right under Order 44 rule 1(1) of the Civil Procedure Rules and that the appellant's appeal falls under Order 44 rule 1(2) which provides that "an appeal under these rules shall not lie from any other order except with leave of the court making the order or of the court to which an appeal would lie if leave were given".

The respondents relied on the authority of Dr. Sheik Ahmed Mohammed Kisuule Vs Green Land Bank (in Liquidation) Supreme Court Civil Application No. 07 of 2010 where court held that "Rule 3(1) of Order XLVI which provides for dismissal of an application for a review is not included on the list under Order 33 rule 1 of orders from which appeal lie as of right. It therefore falls under Order 44 rule 2 which lists the orders from which an appeal lie only with leave of court".

The respondents submitted that a party is not allowed to appeal against whatever order that is made by a judicial officer. They cited the case of Sanyu Lwanga Musoke Vs Sam Galiwango Supreme Court Civil Appeal No. 48 of 1995, where the Supreme Court held that; "It must be pointed out that the issue of appealing against every ruling that is made in the course of the trial has come up before this Court on several occasions and decisions on it have been made to the effect that it is no necessary to file separate appeals, one against the interlocutory order made in the course of hearing and another one, against the final decision. To hold otherwise might lead to multiplicity of appeals upon incidental orders made in the course of the hearing when such matters can more conveniently be considered in an appeal from the final decision".

The respondents submitted that the appellant's interlocutory appeal was not called for and there were other avenues to handle the situation, including filing a fresh application without necessarily appealing to this Honourable Court. Accordingly, the appeal should be struck out for failure by the appellant to seek leave to appeal before filling his appeal before this Honourable Court.

## Appellant's submissions on the PO:

It was submitted for the appellant that he did not need to apply for leave before filing this appeal since the decision of the Learned Trial Magistrate finally determined the matter. He submitted that he cannot continue with the execution proceedings before the Magistrates Court and as such the appeal becomes appealable as of right.

The appellant cited the case of Hwan Sung Limited Vs M. D Timber Merchants and Transporter (Civil Appeal No. 02 of 2018) where the Supreme Court found that when an order has the effect of conclusively determining the matter between the parties then it is a decree and is appealable as of right.

The appellant argued that with the dismissal of Miscellaneous Application No. 142 of 2021, no more execution proceedings can proceed in the main suit and the Learned Trial Magistrate's decision can only be overturned on appeal. He urged this Honourable Court to note that Section 2 of the Civil Procedure Act that defines a decree specifically renders any decisions made under Section 34 of the Civil Procedure Act that deals with questions of representatives in matters of execution as decrees appealable as of right.

The appellant stated that the Supreme Court in HWAN Sunga Limited Vs M. D Timber Merchants and Transporters (Supra) found that:-

"The interpretation of the provisions of Section 2(c) of the Civil Procedure Act is interpretation of the principle legislation. The provisions of **Order 44 Rule 2** of the Civil Procedure Rules are in subsidiary legislation. The former takes precedence over the latter........ we have to follow the court's decision and act in accordance with the principal legislation.

The appellant concluded that the application from which the appeal arises was seeking to appoint the respondents as legal representatives of the late MITI PAUL for purposes of proceeding with the taxation and execution of the Decree in Civil Suit No. 52 of 2013 in response to which the Respondents pleaded not to be administrators of the estate of the late MITI PAUL's Estate. Hence, this appeal is rightfully filed before this Honourable Court.

#### **Court's ruling on the PO:**

Having read the submissions of the parties, the provisions of the law and case precedents cited, I surmise that the issue as to whether the appeal is competently brought before this Court without leave of court can only be answered with reference to the principal law and subsidiary legislation. It is true, as submitted by the appellant, that principal law takes precedence over subsidiary legislation.

Section 66 of the Civil Procedure Act (CPA) provides;

"Unless otherwise expressly provided in this Act, an appeal shall lie from the decrees or any part of the decrees and from the orders of the High Court to the Court of Appeal."

The CPA at Section $2(c)$ provides that:

"a decree means the formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint or writ and the determination of any question within section 34 or 92, but shall not include-

- (i) any adjudication from which an appeal lies as an appeal from an order; or - (ii) any order of dismissal for default."

Section 34 of the CPA provides that questions arising between the parties to the suit shall be determined by the court executing the decree.

Section 76 of the CPA provides for orders from which an appeal shall lie. Order 44 rule 1(1) of the CPR further elaborates on appeals from orders; and in rule 1(2) states that leave of court is required to appeal, where the order is not appealable as of right under rule 1(1).

On scrutiny of the above provisions of the CPA and the CPR, I find no contradiction amongst them. The CPA provides framework provisions that are expounded by the CPR. The CPA at Section 66 clearly distinguishes between decrees and orders. Also, the CPA under Part VIII-Appeals, includes a subtitle for appeals from decrees and a subtitle on appeals from orders. Order 44 rule 1(1) and rule 1(2) of the CPR does not only elaborate on appeals from orders, it also gives guidance as to which orders are appealable as of right and those that need leave of court for an appeal to issue.

Counsel for the respondents cited the case of **Sanyu Lwanga Musoke Vs Sam Galiwango** Supreme Court Civil Appeal No. 48 of 1995 discouraging parties from appealing every order made by court as it would lead to multiplicity of suits. Counsel went ahead to submit that it was not necessary for the appellant to appeal against a ruling in an interlocutory application in this matter.

Counsel for the appellant on his part submitted that the ruling in Misc. Application No. 142 of 2021 had the effect of finally disposing the matter and was, therefore, a decree for purposes of Section 2(c) of the CPA. For that reason, the appellant argued that there was no need for leave to appeal as the respondents claim.

The question therefore is whether the determination of the matter by Her Worship Elizabeth Kabugho Ag. Senior Magistrate Grade One in Misc. Application No. 142 of 2021 gave rise to an order or a decree, for purposes of determining whether leave to appeal ought to have been sought.

I find that Indeed, a decree as defined in Section 2(c) of the CPA is one extracted to conclusively determine the matters in controversy between the parties.

When the learned trial Magistrate decided in Misc. Application No. 142 of 2021 that the respondents therein were neither executors nor persons appointed as administrators to the estate of the late MITI PAUL and declined to grant the application to appoint the said respondents' administrators' ad-litem, in essence that finally determined the matter. Am alive to the fact that parties should not be at liberty to appeal against every order of a judicial officer. Indeed, that is why Order 44 rule 1 gives specific guidance on which order is appealable and which one requires leave of court for an appeal to be instituted. In my view, however, the decision in Misc. Application No. 142 of 2021 falls more under the realm of a decree than an order. Hence, section 66 of the CPA applies rather than section 76 of the CPA and Order 44(1) of the CPA. Had it been an order then leave to appeal would have been required as the circumstances of the case could not permit the decision to fall within rule 1(1) of Order 44.

In the premises, I dismiss the preliminary objection.

## **GROUNDS OF APPEAL:**

- 1. That the learned trial magistrate erred in law and fact when she held that there was no evidence on record that the persons entitled to administer the deceased's estate were unable or unwilling to act as such. - 2. That the learned trial magistrate erred in law and fact when she dismissed Misc. Application No. 142 of 2021.

# DETERMINATION OF THE GROUNDS OF APPEAL BY THIS COURT:

Ground 1: The learned trial magistrate erred in law and fact when she held that there was no evidence on record that the persons entitled to administer the deceased's estate were unable or unwilling to act as such

## Appellant's submissions:

It was submitted for the appellant that at page 1 para 3-5 of her ruling, the Learned Trial Magistrate stated that:

"The respondents from the affidavits on record are not willing to be made party to the suit/proceedings. In the instant case, the respondents are neither executors nor persons appointed as administrators to the estate of the late MITI PAUL. There is no evidence on record that the person entitled to administration is unable or unwilling to act".

Section 222 of the Succession Act [Cap 162] provides that:-

"When it is necessary that the representative of a person deceased is made a party to a pending suit, and the executor or person entitled to administration is unable or unwilling to act, letters of administration may be granted to the nominee of a party in the suit, limited for the purpose of representing the deceased in that suit or in any other cause or suit which may be commenced in the same or in any other court between the parties or any other parties, touching the matters at issue in that cause or suit, and until a final decree shall be made in it, and carried into complete execution".

It was submitted for the appellant that the Trial Magistrate wrongly interpreted and applied the Section and arrived at a wrong conclusion; that the above Section is to the effect that where a party to the suit dies and the executor or administrator is not willing to act, then court may grant letters of administration to a person nominated by the surviving party for purposes of continuing the proceedings against the deceased; and that the respondents did not adduce any evidence on record that any administrators or executors were ever appointed to administer the estate of the late MITI PAUL or that there were any other persons other than the respondents willing to administer the estate. The only evidence of persons willing to administer the deceased's estate were the respondents themselves.

The appellant submitted that he provided proof of the respondent's willingness to administer their father's estate vide Annexture B attached to the Appellant's affidavit in support of the Notice of Motion. Annexture B is the Chamber Summons in Misc. Application No. 136 of 2018 wherein the respondents applied to be appointed administrators' ad-litem of Miti Paul's Estate for purposes of Civil Suit No. 58 of 2013: Mugyenzi Evan Vs Miti Paul & Mugisha Masesane Emmanuel.

It was further submitted for the appellant that the respondents admitted to having been appointed administrators' ad-litem in Civil Suit No. 58 of 2013 Mugyenzi Evans Mugisha Vs Miti Paul & Mugisha Masesane Emmanuel in paragraph 8 of their affidavits in reply; and that since the respondents are already so appointed, it was only just, reasonable and fair that they be appointed to represent the deceased in this matter as well to avoid various administrators over the same estate.

**Respondents' submissions:**

It was submitted for the respondents that the trial Magistrate cannot be faulted for the orders she gave as the appellant failed to adduce evidence to prove who the would-be administrators of the estate of the late MITI PAUL are and that the would-be administrators of the estate of the late MITI PAUL had failed to administer the estate, calling for the appointment of the respondents as administrators for purposes of disposing of the matters before court.

It was also submitted that counsel for the appellant failed to present a proper application under the Civil Procedure Rules and landed into the trap of relying upon Section 222 of the Succession Act.

### Appellant's rejoinder submissions:

In rejoinder, the appellant submitted that the respondents being biological children and beneficiaries of the estate of the late MITI PAUL are the right people to be appointed as administrators' ad-litem for the said estate; and that the respondents conceded to having been appointed administrators ad-litem in Misc. Application No. 136 of 2018.

#### Court's decision:

Having perused the submissions of the parties on this ground, I make reference to Misc. Application No. 142 of 2021 which this court has had the opportunity to peruse. It is indeed true as submitted for the appellant, that the respondents at paragraph 8 of their affidavits in reply admitted having been appointed administrators' ad-litem following their application to court for the same in Misc. Application No. 136 of 2018 arising from Civil Suit No. 58 of 2013. The application was made by way of Chamber Summons in Miscellaneous Application No. 136 of 2018 attached as **Annexture B** to the Appellant/applicant's affidavit in support of the Notice of Motion in Misc. Application No. 142 of 2021.

In paragraph 9 of their affidavits in reply, the respondents stated that they were appointed administrators' ad-litem because Civil Suit No. 58 of 2013 was still ongoing before court. However, in paragraphs 10 of their affidavits in reply, the respondents are quick to say that "since the late MITI PAUL left behind a number of children and a widow, the applicant cannot only force me to be appointed or granted letters of administration ad litem for purposes of this suit."

It is apparent to me that it is because of the said paragraph 10 of the respondents' affidavits in reply that it was submitted for the respondents that the trial Magistrate cannot be faulted for the orders she gave.

## The pertinent question is; was it necessary at that point to adduce evidence that the persons entitled to administer the deceased's estate were unable or unwilling to act as such?

In my opinion, it was not. The respondents themselves stated that they had been appointed administrators' ad-litem as Civil Suit No. 58 of 2013 was still on-going. A case cannot be completed until actually completed. Indeed, a suit is defined by section $2(x)$ of the CPA as "all civil proceedings commenced in any manner prescribed." In my opinion, where there is a review, revision, an appeal or other court process that keeps that suit alive, just that it was concluded in the first instance does not render it complete.

If the respondents did not want to continue being administrators' ad litem, they should have specifically prayed that the administratorship ad litem applied only to the original suit and no other court processes related to that suit; and that the administratorship should be dissolved/come to an end once the original suit comes to an end. They did not do so. Their failure to obtain a specific order couched in the terms I have indicated opened them up to further court processes arising from Civil Suit No. 58 of 2013. As a result, they cannot turn around now

to state that they cannot be forced to be administrators' ad-litem in the suit when the late MITI PAUL had other children.

That the respondents had been appointed administrators' ad-litem in Civil Suit No. 58 of 2013 was sufficient for purposes of Misc. Application No. 142 of 2021. Their inability or unwilling to act as such was secondary. If they were indeed unable or unwilling to continue to act as such, they ought to have cancelled or terminated their administration ad litem obtained in regard to the original Civil Suit No. 58 of 2013, even if they had failed, neglected or/and omitted to restrict the extent of that administratorship when they first obtained it.

In the premises, I find this ground in the affirmative.

# Ground 2: The learned trial magistrate erred in law and fact when she dismissed Misc. Application No. 142 of 2021

### Appellant's submissions:

It was submitted for the appellant that the trial Magistrate's dismissal of Misc. Application No. 142 of 2021 was premised on the fact that the respondents were not willing to be made a party to the suit/proceedings. The appellant submitted that Section 222 of the Succession Act does not require the consent nor the willingness of a nominee for the Letters of Administration Adlitem to be granted; and that Court should note that Civil Suit No. 57 of 2013 is at a stage of execution and no family member can willingly offer to be a made a party to an execution proceeding unless the Court orders it.

The appellant cited the case of Byomuhangi Christopher Vs Rugumya James, HCMA No. 057 of 2023 where Justice Vincent Wagona cited with approval the decision in Winrose Emmah NdindaKlamba Vs Agnes Nthambi Kasyoka [2021] eKLR where the Court stated that:

"The Aforementioned clearly depicts that the aspect of consent with regard to special limited grants of representation need not be mandatory.... From the foregone, it is clear that a limited Grant of Letters of Administration Ad Litem is usually used when the estate of a deceased person is required to be represented in Court Proceedings".

The appellant submitted that the respondents did not deny being children and beneficiaries of the Estate of the late MITI PAUL and neither did they adduce any evidence to show that they have any adverse interests in the estate of the deceased.

#### **Respondents' submissions:**

It was submitted for the respondents that whereas they filed Misc. Application No. 136 of 2018, counsel for the appellant should have provided the trial court with the judicial results of the said application, whether it was granted or not, instead of merely relying upon the same.

#### Appellant's submissions in rejoinder:

It was submitted for the appellant that he rightly brought Misc. Application No. 142 of 2021 under Section 222 of the Succession Act that deals with appointment of an administrator ad-litem.

#### Court's decision:

I will not interrogate whether or not the appellant fell in the trap of Section 222 of the Succession Act as alleged by counsel for the appellant. I do not think it is necessary for me to do so.

The respondents' argument that the appellant should have provided the trial court with the judicial results of Misc. Application No. 136 of 2018 by the respondents for administration ad litem is circumvented by the admission of the respondents themselves in paragraphs 8 of their affidavits in reply in Misc. Application No. 142 of 2021. They cannot now be heard to say that the appellant should have provided the judicial result pronouncing the respondents' administrators' ad-litem.

### Be that as it may, was the learned trial magistrate, therefore, wrong in dismissing Misc. Application No. 142 of 2021?

I find that the learned trial magistrate did not err in dismissing the said application; only that the reason she gave in dismissing the application was wrong.

The appellant (applicant in that matter) sought orders that the respondents be appointed administrators' ad-litem of the estate of the late MITI PAUL. In my view, that application was not necessary for reasons I have advanced in my findings underground one. The respondents having already been appointed administrators' ad-litem in respect of the estate of the late **MITI PAUL** in Civil Suit No. 037 of 2013, this court cannot appoint them yet again only because the appellant wants to execute.

## The question at this point is whether the appointment of the respondents as administrators' ad-litem in Civil Suit No. 37 of 2013 is sufficient for purposes of executing the decree as against the estate of the late MITI PAUL?

In my opinion, it is not. Administration ad litem is limited to defending the suit which is still pending before this court. Sometimes, it is limited to providing a party who may sue or be sued on behalf of the deceased person.

In the persuasive authority of In The Matter Of The Estate Of Mary Moore [2023] IEHC 607. the court therein concluded that:

"a grant limited for the purpose of substantiating certain proceedings simply provides to a plaintiff a defendant who may be sued such that any order obtained or the determination of any point arising in the action will bind the general administrator if and when he or she is appointed, but without imposing an obligation on the person appointed as limited administrator to take active steps in defence of the action."

There is no information as to whether the respondents substantively defended the suit as representatives of the late MITI PAUL. What is clear is that administration ad litem does not give powers to distribute the estate of the deceased. So, if it does not give such powers, this means that execution against such administrators is not possible since they have no general powers of administration and cannot apportion part of the estate towards meeting the costs related to the execution. The remedy available to the appellant in the present matter is to proceed against the administrators of the estate of the late MITI PAUL, if any or in the alternative his personal representative with powers to deal with his estate.

#### ENTITLEMENT TO COSTS:

The appellant prayed for costs of the appeal and the application in the lower court. The respondents, on their part, prayed that the appeal be dismissed with costs to the respondents.

Considering that Misc. Application No. 142 of 2021 was not really necessary in the circumstances, I do not find any merit for the request to award costs to the appellant. Instead, I award costs in this appeal to the respondents and each party shall bear their own costs in Misc. Application No. 142 of 2021.

#### **CONCLUSION:**

In the premises, I allow this appeal in part and order that;

- a) The administration ad litem of the estate of the late MITI PAUL by the respondents in Civil Suit No. 58 of 2013 stands unless cancelled/terminated or varied by appropriate legal process or when a suit as known in law, terminates. - b) Since administration ad litem is limited to the pendency of the suit and does not give general powers of administration to the extent of enabling execution against the respondents, the appellant is entitled to execution against the administrators of the estate

of the late MITI PAUL, if any or in the alternative his personal representative with powers to deal with his estate.

c) The costs in this appeal are awarded to the respondents and each party shall bear their own costs in Misc. Application No. 142 of 2021.

I so order.

Dated at Kampala this.................................... $.....2024.$

........

Hon. Lady Justice Dr. Christine A. Echookit Judge.

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The right of appeal explained.