[2024] UGHC 1108

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# **MISCELLANEOUS APPLICATION NO. 036 OF 2024**

## (ARISING FROM CIVIL APPEAL NO. 102 OF 2016)

# (ARISING FROM CIVIL SUIT NO. 010 OF 2020)

## WASIKE PATRICK ....................................

#### **VERSUS**

# **BUGISU WELFARE ASSOCIATION & 37 OTHERS ::::::::::::::: RESPONDENTS**

## BEFORE: HON. JUSTICE LUBEGA FAROUQ

## **RULING**

- 1. This application was brought by way of Notice of Motion under Order 51 rule 6 and Order 52 rr 1, 2 and 3 of the Civil Procedure Rules SI.71, section 78 and 98 of the Civil Procedure Act Cap 282 and section 222 of the Succession Act Cap 162 for orders that- - (a) That the Applicant Mr. Wasike Patrick be appointed administrator ad litem for the estate of the late Sabastian Wetaka: - (b) Leave for extension of time within which to appeal against the decision of the Appellate Court in Civil Appeal No. 102 of 2016 be granted to the Applicant Mr. Wasike Patrick; - (c) Costs for the application be in the cause. - 2. This Application is supported by the affidavit in support sworn by the Applicant where he averred as follows- - (a) That the Respondents instituted Civil Suit No. 102 of 2016 against the estate of late Sabastian Wetaka to which Clement Maima (now deceased) and I, were the administrators;

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- (b) That the judgment in Civil Appeal No. 102 of 2016 was passed against the estate of the late Sabastian Wataka on 18^th of December, 2023; - (c) That by the time the judgment was delivered in Civil Appeal No. 102 of 2016 my co-administrator was deceased which rendered our administration inoperative and I could not proceed alone; - (d) That there is need to strike off the late Clement Maima who is now deceased and appoint me as administrator ad litem for purposes of handling the post judgment courses of action in Civil Appeal No. 102 of 2016; - (e) That the court be pleased to appoint me Wasike as administrator ad litem for the purpose of further management of the post judgment courses of action in Civil Appeal No. 102 of 2016; - (f) That the estate of the late Sabastian Wetaka is aggrieved and dissatisfied with the entire judgment which was delivered on 18th December, 2023 in Civil Appeal No. 102 of 2016 and wishes to file an appeal to the Court of Appeal; - (g) That it is in the interest of substantive justice and equity that the late Clement Maima be struck off the pleadings in Civil Appeal No. 102 of 2016 and I be appointed administrator ad litem for further management of Civil Appeal No. 102 of 2016 and that I be granted extension of time to appeal to the Court of Appeal. - 3. This Application was opposed by Soita Patrick and in his affidavit in reply averred that- - (a) The application is incompetent before this court, brought in bad faith and dead on arrival and shall pray that the same be summarily dismissed with costs to the Respondents; - (b) That this application is a mere wastage of court's time and brought in bad faith just to frustrate the Respondents from realizing the fruits of their judgment; - (c) That the Applicant's Co. Administrator died on the 23^rd of December, 2020 and the Applicant kept on attending court on various dates to wit;

on the $18/12/2023$ , $17/4/2023$ , $27/10/2022$ and could not inform court of the same but waited for judgment to bring the application which is an afterthought;

- (d) That the Applicant is already an administrator who only needs to apply to court to remove the deceased administrator from the grant not to again bring this application to be appointed administrator ad litem and therefore I have been informed by the said Respondents' lawyer that the application is frivolous; - (e) That the intended appeal is an afterthought just to delay the Respondents from realizing the fruits of their judgment; - (f) The Applicant has not disclosed to court any sufficient reason as to why he failed to appeal in time; - (g) That neither the intended memorandum of appeal, a letter requesting for the record of proceedings nor a notice of the intended appeal is on record as required by law and hence this application is an afterthought; - (h) That the litigation ought to come to an end and this being a matter of 2007, the Respondents pray that this application be dismissed with costs to the Respondents.

# 4. Legal representation

- 5. Counsel Wesile Yonah and Counsel Lukwago Ibrahim represented the whereas Counsel Obedo Deogatious represented Applicant the Respondents. - 6. This Application proceeded by way of written submissions and both counsel complied. I will consider them in the resolution of this matter.

#### 7. Issues

- 8. Counsel for the Applicant framed two issues which have been adopted by this court as below- - (a) Whether the application warrants the applicant, Mr. Wasike Patrick to be appointed administrator ad litem for the estate of late Sabastian

- (b) Whether the applicant can be granted leave for extension of time within which to appeal against the decision of the Appellate court in Civil Appeal No. 102 of 2016. - 9. (c) *What are the remedies available to the parties? (added by court)* - Analysis of court $10.$ - Issue No.1: Whether the application warrants the applicant, 11. Mr. Wasike Patrick to be appointed administrator ad litem for the estate of late Sabastian

Section 218 of the Succession Act Cap 162 provides that-12.

> "When it is necessary that the representative of a person deceased is made a party to a pending suit, and the *executor* or *executrix* 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.*" (*Emphasis added*)

In Rusell V. Snow 829 SW2d 136 the Supreme Court of Tennese 13. state that-

> *"Administrator ad litem is appointed for a special purpose and" court may proceed to appoint a general administrator and both* of them may subsist. The major purpose of this is for the estate of the deceased to be represented not to let the party's case abate."

In Byomuhangi Christopher V. Rugumya Jones HCMA No. 57 of 14. 2023, court cited a Kenyan case of Winrose Emmah Ndida Kiamba V.

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Agnes Nthambi Kasyoka [2021] Ekir as referred by counsel for the Applicant it was stated that;

> "While considering section 54 and 55 of the Succession Act of Kenua court observed that the above provisions are clear and that such grant is normally issued due to the exigencies arising in relation to the estate and which could not wait for issuance *of a full grant through the normal way.*"

- 15. The provisions of the law above cited as well as the authorities when read together imply that administrator ad litem is appointed for purposes of representing the deceased who dies before the suit is completed or where a suit is instituted against the estate of the deceased before an administrator is appointed. That means administrator ad litem is only appointed for purposes of the suit under hearing before court. - 16. In the instant case, the Applicant averred under paragraph 4 of the affidavit in support that the judgment was delivered in Civil Appeal No. 102 of 2016 when his co-administrator was deceased which rendered the administration of the estate inoperative and could not proceed alone. - 17. The Respondents however, in their affidavit in reply sworn by Soita Patrick averred under paragraph 6 that the Applicant's co-administrator died on the 23^rd of December, 2020 and the Applicant kept on attending court on various dates to wit; the 18^th of December, 2023, 17^th of April, 2023 and 27^th of October, 2022 but could not inform court of the same instead waited for the judgment. He attached a death certificate to prove the same. - 18. Applying my reasoning in paragraph 15 of this ruling to the above averments, simply means that the Applicant ought to have made this application before the conclusion of Civil Appeal No. 102 of 2016 because ordinarily, that is the purpose of section 218 of the Succession Act. It only applies where there is a suit under hearing against the deceased or his estate. For purposes of emphasis the preamble of that section states that-"Administration limited to suit."

- Technically, section 218 of the Succession Act is intended to address 19. situations where a party to a suit dies before a matter instituted by him or against him is concluded, or where the deceased's estate is sued before an administrator is appointed. - However, contrary to the above discussion, in the present case, the 20. Applicant's co-administrator died in 2020 when Civil Appeal No. 102 of 2016 was still under hearing. In the view of that background, the Applicant ought to have invoked Section 218 during the hearing of that suit. Having failed to do so would mean that the estate of late Wetaka Sebastian did not participate in the hearing of Civil Appeal No. 102 of 2016. - In the view of that reasoning, this court wonders where a party 21. which did not participate in the matter, gets locus to challenge its findings from. - 22. Be the above as it may, section 218 as above quoted gives this court power to grant applications of this nature. - 23. Consequently, the Applicant Mr. Wasike Patrick is accordingly appointed administrator ad litem to represent the estate of late Wetaka Sebastian in the post judgment courses of action. - Issue No.1 is answered in the affirmative. 24. - $25.$ Issue No.2: Whether the applicant can be granted leave for extension of time within which to appeal against the decision of the Appellate Court in Civil Appeal No. 102 of 2016

26. Section 96 of the Civil Procedure Act Cap 282 provides that-

> "*Where any period is fixed or granted by the court for the doing*" of any act prescribed or allowed by this Act, the court may, in its discretion, from time to time, enlarge the period, even though the period originally fixed or granted may have expired."

27. In Tushabe V. Cooperative Bank Ltd SCCA No. 8 of 2018, the Supreme Court held that-

> "In an application for enlargement of time to file an appeal, the discretion to open or not open the gates of court is vested in the

*court. Such an application for extension of time may be granted* namely: before expiration of limited time, after the expiration of the limited time, before the act is done and after the act is done..."

- Also in Florence Nabatanzi V. Naome Binsobedde SCCA No.6 of 28. 1987 as referred to court by counsel for the Applicant, it was held that court has wide powers to extend the period, provided sufficient reason is shown. - In the present case, the Applicant averred that by the time the 29. judgment was delivered, Mr. Clement his co-administrator was deceased which rendered the administration inoperative. - The position of the law is that a suit should be instituted by a person 30. locus standi. This implies that without proper letters of with administration, the Applicant could not file or institute the intended appeal. - In Bitamissi Namudu V. Rwabuganda Godfrey Court of Appeal 31. Miscellaneous Application No. 79 of 2014, the Court of Appeal while referring to Rosette Kizito V. Administrator General & others, Supreme Court Civil Application No. 9 of 1986, stated that sufficient cause in a particular case must relate to inability of the Applicant or his counsel to act. - I have therefore found the Applicant's reason for failure to file the 32. appeal in time to be sufficient. - Leave for extension of time within which to appeal is accordingly 33. granted to the Applicant. - Issue No.2 is answered in the affirmative. 34. - Issue No.3: What are the remedies available to the parties? 35. - Considering my resolution in the body of this ruling, this application 36. hereby succeeds in the terms below- - (a) The Applicant, Mr. Wasike Patrick is appointed administrator ad litem for the estate of Wetaka Sebastian - (b) The Applicant is granted leave to file his appeal out of time.

(c) No costs are awarded.

I so order.

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at the first first

Ruling delivered via the emails of the Advocates of the parties on **9**^th day of December, 2024

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