Abu & Another v Safina (Civil Appeal 76 of 2020) [2024] UGHC 722 (11 March 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MUKONO

### **CIVIL APPEAL NO.76 OF 2020**

# (ARISING FROM MUKONO CHIEF MAGISTRATES COURT **CIVIL SUIT NO.207 OF 2015)**

1. ABU KAIJA

# **2. MUSA SENGENDO:::::::::::::::::::::::::::::::::::: VERSUS**

# SAFINA NANTEZA::::::::::::::::::::::::::::::::::::

# BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA

#### **RULING**

#### **Introduction:**

The Respondent filed Civil Suit No.207 of 2015 against the Appellants jointly and severally for declarations that she is the rightful owner of the suit land, an order of eviction, permanent injunction, general damages and costs for the suit.

#### **Background:**

The Respondent contended that she is the rightful owner of one acre of land having been given to her as a gift intervivos by her uncle Amisi Musoke as a token of appreciation for looking after him during sickness. However, after the death of Amisi Musoke, the Appellants/Defendants who are the biological children of the late

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Amisi Musoke chased the Plaintiff/Respondent from the one acre she was utilizing and the Defendants started using it without her consent.

### **Decision of the Trial Court:**

At the trial Court, the issues were framed for determination and resolution:

1. Whether the Plaintiff is entitled to the land at Nakapinyi?

2. What are the remedies available to the parties?

The trial Court found for the Respondent and held that the suit land belonged to the Respondent/Plaintiff who is entitled to quite possession to which the trial Magistrate issued a permanent injunction against the Defendants/Appellants and their agents, general damages of Ug. Shs. $8,000,000/=$ and costs for the suit. The Defendants being dissatisfied with the above decision, appealed to the High Court.

On the 1st March 2023 Counsel Kafuko Ntuyo appeared for the Appellants and stated that they took over this matter from the previous Counsel and that the Appellants had filed submissions on the 3rd February 2023. The record of the Court bears a Notice of Instructions filed 5th April 2022 showing that M/S Kafuko Ntuyo and Co. Advocates had been instructed by the Appellants to take over conduct of the Appeal. He prayed that the Court gives him timelines to serve and fix the Appeal for hearing.

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The Court then took out directions on service of record of Appeal and submissions on the Respondent. The matter was then adjourned to the 11th May 2023 for mention; it did not proceed on that day as the Judge was indisposed.

When they appeared for hearing on the 20th December 2023 Mr. Kafuko Ntuyo prayed for other directions given the fact that Mr. Peter Benjamin Wada had come on board.

Mr. Kintu George appeared and stated that he had been given instructions by the 2nd Appellant who stated that he was not comfortable with Mr. Kafuko Ntuyo representing him. Counsel prayed that the Court grants him time to prepare and file written submissions on behalf of the 2nd Appellant.

Mr. Peter Benjamin Wada stated that he appears for the beneficiaries of the estate of the Respondent and sought to raise a preliminary objection. Counsel intimated that the preliminary objection raised was likely to dispose of the Appeal. One of the beneficiaries was in Court. Counsel opined that he was not representing the Respondent but brought it to the attention of the Court that the Respondent had died, he tendered a death certificate. He argued that because of the death of the Respondent the Appeal could not proceed unless a representative of the Respondent is appointed by the Court.

He submitted that Section 222 of the Succession Act, Cap 162 makes provision for grant of Letters of Administration to a person

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so nominated and these are limited only to the suit. He contended that the Respondent died in June 2021 and that the Appellants were fully aware that the Respondent had died since they were relatives and neighbors. That from 2021 to the end of 2023 (December) the Appellants had never taken any step to appoint or make an Application before this Court to appoint a representative. He submitted that under Order 24 of the Civil Procedure Rules (CPR) the Appeal abates for failure to take the necessary steps to authenticate the appeal before the Court. He contended that the Appeal itself is a nullity which has no life unless a representative is appointed for the Respondent. He prayed that the Court finds that the Appeal had abated.

Counsel for the $1^{st}$ Appellant objected to the submissions; he contended that the Appeal was Civil Appeal 76 of 2020 which was filed in 2020 when the Respondent was still alive and he referred the Court to the Notice of Appeal. He argued that it is not the Appellant to move the Court for appointment of a legal representative but that duty is placed on the family of the deceased. He stated that death of a party does not automatically abate a cause of action. He prayed that since the relatives of the Respondent had surfaced the Court should direct them to commence the process of getting a legal representative.

Counsel for 2nd Appellant was in agreement with the submissions of 1st Appellant; he argued further that Counsel Wada did not have locus to move the Court on this matter as he was Counsel for the

beneficiaries who were not party to the Appeal. He stated that the beneficiaries are aware of the death of the Respondent and that is why they are in Court as service had been effected upon the family of the deceased. He prayed that the prayer for abatement be rejected and that Court directs the family members to process Letters of Administration.

In rejoinder Mr. Wada reiterated his earlier submissions and added that the party who is aware of the demise can move the Court to appoint a representative for purposes of concluding the suit. He opined that it would prejudice the beneficiaries to prosecute the Appeal when the Appellants are fully aware that Respondent had a Judgement in her favour in the lower Court. He insisted that duty is upon the Appellants to take the necessary steps to appoint a legal representative.

#### **Issue:**

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1. Whether the Appeal abates at the death of the Respondent.

#### **Analysis and Resolution:**

Issue 1. Whether the Appeal abates at the death of the **Respondent.**

Order 24 of the Civil Procedure Rules is instructive on the abatement of suits.

Order 24 $(1)$ provides

#### No abatement by party's death if right survives:

"The death of a Plaintiff or Defendant shall not cause the suit to abate if the cause of action survives or continues."

Order 24 rule 10 of the Civil Procedure Rules provides;

## **Application of Order to Appeals:**

In the Application of this Order to appeals, so far as may be, "Plaintiff" includes an Appellant, "Defendant" a Respondent, and "suit" an Appeal.

In the instant case the cause of action survives as it is not listed under the causes of action under Section 11 of the Law Reform (Miscellaneous Provisions) Act, Cap 79.

In regard to this Appeal the cause of action as seen from the Plaint and as illustrated from the background of the case is that the Plaintiff/Respondent sought declarations from the lower Court that she is the rightful owner of the suit land, an order of eviction, permanent injunction, general damages and costs for the suit. Therefore the cause of action survives the against the Respondent in this case.

Counsel for the Respondent argued that by the time the Appeal was filed the Appellants knew of the demise of the Respondent and therefore the Appellants could not sue a person who had died. He relied on the Death Certificate which shows that the Respondent died on $25th$ June 2021.

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I have considered the authority of **Babubhai Dhanji Pathak v.** Zainab Mrekwe [1964] E. A. 24 to the effect that a case filed against a dead person is a nullity and of no legal consequence, and found it inapplicable to the facts before me.

In the instant case the Respondent died on $25th$ June 2021 as seen in the Death Certificate. A Notice and Memorandum of Appeal were filed in the High Court on 18th December 2020 and 30th August 2021 respectively. The said Notice was filed before her demise while the Memorandum was filed after her demise. This does not render the Appeal incompetent by reason only that the Memorandum of Appeal was filed after the death of the Respondent and filed in her names. Even if the Appellants had been aware of the death, the rules in regard to filing Appeals are quite stringent and I am of the view that they acted diligently by filing the Appeal and serving the family and or the beneficiaries to the estate.

I draw analogy from the Judicature (Court of Appeal) Rules S. I 13-10 which provide;

### Rule 79. Death of respondent before service of notice.

A Notice of Appeal shall not be incompetent by reason only that the person on whom it is required to be served was dead at the time when the notice was lodged; but a copy of the notice shall be served as soon as practicable on the legal representative of the deceased.

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## 85. Death of party to intended Appeal:

(1) An Appeal shall not be instituted in the name of a person who is dead but may be instituted in the name of his or her legal representative.

(2) An Appeal shall not be incompetent by reason only that the Respondent was dead at the time when it was instituted; but the Court shall, on the Application of any interested person, cause the legal representative of the deceased to be made a party in place of the deceased.

Order 24 Rule 4 of the Civil Procedure Rules provides;

Procedure in case of death of one of several Defendants or of sole Defendant.

(1) Where one or two or more Defendants dies and the cause of action does not survive or continue against the surviving Defendant or Defendants alone, or a sole Defendant or sole surviving Defendant dies and the cause of action survives or continues, the Court, on an Application made for that purpose, shall cause the legal representative of the deceased Defendant to be made a party and shall proceed with the suit. (Emphasis mine)

(2) Any person so made a party may make any defence appropriate to his or her character as legal representative of the deceased Defendant.

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In regard to the Appeal the beneficiaries of the estate of the Respondent were made aware of the Appeal before this Court and even instructed their Counsel to appear in the Court even though he did not have locus to appear but the Court in the interest of justice entertained his concerns.

The proper course of action is for the beneficiaries to ensure that they commence the process of getting a legal representative who can then be substituted for the Respondent in order for the Appeal to be duly determined and also to properly run the affairs of the estate of the deceased Respondent.

In regard to the submissions on Section 222 of the Succession Act, the Section provides that;

### S.222 - Administration limited to suit:

"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 purposes of representing the deceased in that suit or in any other suit which maybe commenced in the same or in any other Court between the parties, or 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."

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My interpretation of the above section is that there must be an executor or person entitled to administration who is unable or unwilling to act and the Letters of Administration can then be granted for purposes of the suit.

In the instant case it has not been brought to the attention of the court that there is a person entitled to administer the estate who is unable or unwilling to do so. But even though there is such a person a proper Application must be made to the Court.

The Court therefore makes the following Orders;

- 1. That the Appeal has not abated by reason of the death of the Respondent. - 2. That the beneficiaries/family of the Respondent are directed to commence the process of getting a legal representative to enable determination of this matter. - Costs in the cause.

**Dated** at **Mukono** this....................................

**Christine Kaahwa JUDGE**

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