Ayella v Okum & 2 Others (Miscellaneous Application 64 of 2024) [2024] UGHC 1022 (31 October 2024)

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

## **MISCELLANEOUS APPLICATION No. 064/2024**

# **(ARISING FROM HIGH COURT CIVIL APPEAL No. 021/2023)**

# 5 **(Formerly HIGH COURT GULU – CIVIL APPEAL No. 09/2023)**

# **AYELLA P'IKOYA APPLICANT**

**Versus**

- **1. MARGRET OKUM** - **2. OKENY GODFREY**

10 **3. OTING SANTA RESPONDENTS**

## **RULING**

## **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

### **Introduction and Background.**

[1]. The Applicant, being the 1 st Appellant in the Appeal cited as **High Court** 15 **Civil Appeal No. 021/2023**), seeks Orders from this Court – firstly, for the grant of Letters of Administration *Ad-Litem* to the 1st and 2nd Respondents in this Application for the specific purpose of prosecuting the instant Appeal; secondly, substituting the 2nd Appellant in the Appeal Owot Tony said to be deceased with the 1st Respondent in this Application Margret Okum said to be his wife; thirdly, substituting the 3 20 rd Appellant in the Appeal Opwa Justine said to be deceased with the 2nd Respondent in this Application Okeny Godfrey said to be his son; fourth, Amendment of the Memorandum of Appeal to reflect the names of the those whom may be made Administrators *Ad-Litem* and, or Administratrix *Ad-Litem*; fifth and lastly, provision of costs 25 of the Application.

- [2]. The Application is instituted by Motion filed on the 8th April, 2024 citing **Section 222 (now S. 218) of the Succession Act, Cap. 268; Section 33 (now S. 37) of the Judicature Act, Cap. 13 (now Cap. 16); Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282); Order 22 Rule 4 (1) &** 30 **(2), Order 6 Rule 19 and Order 52 Rules (1) & 2 of the Civil Procedure Rules, SI 71 - 1.** - [3]. These citations were revised by the **Law Revision Act, Cap. 3 and Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7 th Revised Edition) (Principal Laws) Instrument, 2024**.

#### **The Applicant's Case and Submissions.**

[4]. The Applicant's grounds contained in the Motion and substantiated in his supporting Affidavit are that he instituted the Appeal cited as **Civil Appeal No. 021/2023** (previously **High Court Gulu Civil Appeal No. 09/2023**) together with the 2nd Appellant Owot Tonny and the 3 40 rd Appellant Opwa Justine against the 3rd Respondent herein Oting Santa; he is aware that the 1st Respondent herein and the 2 nd Respondent herein have not commenced the process of obtaining grant of Letters of Administration in respect of the Estates of the deceased 2nd Appellant and 3rd Appellant respectively; the 1st Respondent herein is the wife of the late Owot Tony the 2 45 nd Appellant and the 2nd Respondent herein is the son of the late Opwa Justine the 3rd Appellant and they should be appointed Administrator *Ad-Litem* and Administratrix *Ad-Litem* respectively for purposes of prosecuting the Appeal; the Applicant is still interested in prosecuting the Appeal while the family of the deceased 2nd Appellant and 3 50 rd Appellant may not be willing to appoint representatives; and lastly, it is in the interests of Justice and fairness that the Court grant an Order appointing the 1st Respondent and 2nd Respondents herein Administrator *Ad-Litem* and Administratrix *Ad-Litem* respectively.

- [5]. The Applicant filed Written Submissions on the 27th June, 2024 and insists 55 that the Respondents herein have no objection to the Application. However, the 1 st and 2nd Respondents herein did not file affidavits in reply to the Application. The 3rd Respondent herein is said to have filed an affidavit but expressed no objection to the Application. - [6]. The Applicant relied of **Section 222 (now S. 218) of the Succession Act** 60 citing **Misc. Application No. 11/2015: Balikuddembe Jumba Peter Et Al Vs. Kiwalabye Expedito** and submitted that there must be some refusal or neglect by persons entitled to apply for Letters of Administration before Court may invoke its powers under **Section 98 of the Civil Procedure Act**. It is the Applicants case that following the failure of the 1st and 2nd 65 Respondents to pursue Letters of Administration in respect of the Estates of the 2nd and 3rd Appellants the Application should be granted to enable the Appeal pertaining to land matters proceed.

## **The Respondent's Case and Submissions.**

[7]. The 1st and 2nd Respondents herein did not file Affidavits in Reply. The 3 rd Respondent Oting Santa filed an affidavit in Reply on the 5th 70 June, 2024 contending that the affidavit in support of the Application is deponed by a person *"none Party to the Application"* and not authorized to swear the affidavit for the Applicants rendering the Application improper and in addition contending that the Application should have been made orally before the Court. It is the 3rd 75 Respondent's case that the Application is brought in bad faith and aimed at denying her the fruits of litigation and further the Appellants have not pursued and obtained the certified Judgment and Proceedings for prosecuting the Appeal. The Application therefore ought to be dismissed. Curiously, in the title of the affidavit the 1st Respondent and 2nd 80 Respondent are indicated as Applicants with the originating Applicant omitted – seemly not recognized by the 3rd Respondent.

- [8]. The "Respondents" filed Written Submissions on the 12th July, 2024. It is not disputed that the 2 nd and 3rd Appellants passed on before conclusion of the Appeal hence the instant Application for substitution to conclude it. - 85 [9]. The "Respondents" cited **Order 23 Rule 4 of the Civil Procedure Rules** (different from **Order 22 Rule 4 (1) & (2) of the Civil Procedure Rules** cited by the Applicant) in respect of the demise of Defendant(s) in a suit where the cause of action survives and the need for appointment of a Legal representative(s) for purposes of proceedings with and concluding the suit as 90 well as **Misc. Application No. 12/2016: Aluma & Et Al Vs. Okuti** for the proposition that litigation must come to an end so as to enable the litigants see Justice. Ultimately, the "Respondents" conceded to the Application on the basis that the matter should be brought to its logical conclusion. - [10]. The Court observes that the context of the Written Submissions indicate that they are filed specifically in respect of the 3rd 95 Respondent herein and Respondent in the Appeal who was the Plaintiff in the suit in the Lower (Trial) Court. It is not possible that they encompass all the Respondents since they are in fact opposing and contesting Parties requiring separate representation. There were no submissions filed for the 1st and 2nd Respondents. - 100 [11]. There were no Rejoinders filed by the Parties.

#### **Representation.**

- [12]. Counsel, Mr. Omoloi Ivan, represented the Applicant. The Applicant attended Court proceedings. - [13]. The 1 st and 2nd Respondents attended Court unrepresented by Counsel. - 105 [14]. Counsel, Mr. Komakech Stephen, holding brief for Counsel, Mr. Doii Patrick, represented the 3rd Respondent who attended Court proceedings.

## **Proceedings of the Court.**

[15]. The matter came before the Court for hearing on the 6 th June, 2024 at which Directions were given for filing Written Submissions.

#### 110 **Issues for Consideration.**

[16]. The Issue for consideration to be addressed by this Court is – **Whether sufficient cause has been shown for the Court to judiciously exercise its discretion to grant the 1st Respondent and 2nd Respondent each Letters of Administration Ad Litem making them Administratrix Ad Litem and Administrator Ad Litem replacing and substituting the 2 nd and 3rd** 115 **Appellants respectively (said to be Deceased) and other Remedies.**

**Considerations and Determination of the Court.**

- [17]. **Section 218 of the Succession Act, Cap. 268** (previously S. 222) considered together with **Section 37 of the Judicature Act** (previously S. 33) and 120 **Section 98 of the Civil Procedure Act** empower a Court to grant Letters of Administration to the nominee of a Party in a suit for the limited purpose of representing in the suit until its conclusion when it is necessary for such a representative to be made Party to the suit and the executor or executrix or person otherwise entitled to administration is unable or unwilling to act. 125 These are Letters of Administration *Ad Litem*. - [18]. The Procedure is stipulated in **Order 24 Rules 3 & 4 of the Civil Procedure Rules** in respect of the appropriate Parties being the Plaintiff or Defendant differing from **Order 22 Rule 4 of the Rules** cited by the Applicant which provides for unrelated matters. A reference to a Plaintiff includes an 130 Appellant and *vice versa* and suit Appeal under **Order 24 Rule 10 of the Rules**. - [19]. The primary consideration centres on the survivability and, or continuity of the cause of action in a suit in relation to other Parties to the suit. The subject matter of the instant Appeal is ownership of land here being of customary tenure which under its forms is often held in trust. Such a cause of action 135 would generally survive the demise of any holder or claimant. It may not necessarily pass to other surviving Parties to the suit to continue litigation in which case it may pass to surviving beneficiaries up to its conclusion.

- [20]. An important consideration in determining the continuity of the cause of action to surviving Plaintiffs is the distinct claims of right or for that matter 140 heads of claim of the individual litigants. Unless there is an apparent commonality, grant of Letters of Administrators *Ad Litem* would ensue. - [21]. **Order 24 Rule 3 of the Civil Procedure Rules** is reproduced *verbatim* hereunder.

**"Procedure in case of death of one of several Plaintiff's (Appellants) or** 145 **of sole Plaintiff (Appellant).**

**(1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the cause of action survives or continues, the court, on an application made for that** 150 **purpose, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.**

**(2) Where within the time limited by law no application is made under sub rule (1) of this rule, the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the** 155 **court may award to him or her the costs which he or she may have incurred in defending the suit to be recovered from the estate of the deceased plaintiff."**

- [22]. In the circumstances of this case, the survivability or continuity of the cause of action to the sole remaining Appellant who is the Applicant herein has not 160 been established. Instead, the Applicant seeks appointment (making) of beneficiaries as Administrators *Ad Litem* indicating that he is not confident that the cause of action would automatically devolve to him as the sole Appellant to singularly continue with the Appeal to its conclusion. - [23]. The Court has already observed that a cause of action in land is not simply 165 extinguished by the death of a Party in a suit concerning land interests nor would it cause a suit to automatically abate. **See: Order 24 Rule 1.**

- [24]. In considering the instant Application, the Court observes that the Applicant being the sole surviving Appellant in **Civil Appeal No. 21/2023** with the 2nd Appellant and 3rd Appellants now Deceased much as the years are not 170 indicated has taken it upon himself to seemingly undertake to resolve matters in respect of their estates - including impleading the 1st and 2nd Respondents herein said to be their kin in this litigation. In effect, the Applicant and also sole surviving Appellant has nominated an Administratrix *Ad Litem* and an Administrator *Ad Litem*. - [25]. The Court is obviously curious as to why none of the beneficiaries of the 2nd 175 and 3rd Appellants has expressed interest in being joined in the suit moreso being a matter contesting ownership of land. Moreover, the Record of the Lower (Trial) Court indicates that the suit involved a total of six (6) Defendants. The 1st and 2nd Respondents are on Record as having attended 180 these Court proceedings but did not themselves file responsive Affidavits or express interest in being joined as Administrators *Ad Litem*. Their failure to take any affirmative or proactive initiative in regards to advancing the interests of their said deceased kin leaves the Court in doubt as to if it is in the best interests of the estate of the deceased for them to receive such responsibility. - 185 [26]. Any Court faced with this dilemma would be interested in establishing whether consensus was reached with other beneficiaries prior one being nominated. There has been no such material presented to this Court in respect of the beneficiaries of the deceased 2nd and 3rd Appellants. - [27]. The Court has duly considered **Misc. Application No. 039/2016 (Arua):** 190 **Okhway John Kimbo (Legal Representative of Anna Ayeyotho) Vs. Oddia Nuru & Another** in which similar circumstances arose and the Application was granted. The distinctions with the instant matter are that the intended Legal representative took affirmative steps and presented himself being the Applicant and material was presented to the Court that consensus 195 had been reached at a family meeting which seems to have been persuasive.

- [28]. These circumstances do not pertain in this matter. Much doubt arises. The position advanced by the Applicant is contradictory and seems contrived. On the one hand he claims that the 1st and 2nd Respondent are not willing to obtain Letters of Administration while at the same time he seeks a grant in 200 their favour *Ad Litem*. Moreover, both are on Record as having attended Court and did not express any position when accorded the opportunity. - [29]. In designating an Administrator *Ad Litem* it is incumbent on the Court to be conscious of the need for a semblance of legitimacy often born from consensus and care must be taken not to inadvertently or otherwise provoke 205 acrimony amongst beneficiaries. After all, such a grant is entirely at the discretion of the Court to be exercised judiciously. Should any beneficiary feel particularly entitled or the Court not be satisfied that such a grant would be appropriate the **Succession Act** provides other means for designation of a Legal representative through grant of Letters of Administration over the 210 entire estate which would put them in the same position. Therefore, no prejudice would be occasioned. On the other hand, should the 2nd and 3rd Appellants beneficiaries in fact lack the interest or for any reason continue to fail to take affirmative steps they risk abatement of the suit with costs. Similarly, no prejudice is occasioned to the Applicant whom is not barred 215 from pursing the Appeal himself to its conclusion. - [30]. Accordingly, in the circumstances of the instant case the Court is not satisfied that a grant of Letters of Administration *Ad Litem* to the 1st and 2nd Respondents would be appropriate and hereby declines to grant the Application. - 220 [31]. Having carefully given due consideration to the Application with its supporting Affidavit(s) and Annextures, the responsive Affidavit(s) and Annextures, the Written Submissions filed by the respective Parties, the relevant Laws and the entire circumstances of this Application, the Court hereby dismissed the Application. Each Party shall meet their own costs.

#### 225 **Orders of the Court.**

[32]. Accordingly, the Court makes the following Orders: -

- 1. **Misc. Application No. 64/2024** is hereby dismissed. - 2. Each Party shall meet their own costs of the Application.

It is so Ordered.

**Signed and Dated on the 31st** 230 **day of October, 2024 at High Court Kitgum Circuit.**

**Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling shall on the Directions of the Presiding Judge be delivered to the Parties electronically on <u>Thursday</u>, the 31<sup>st</sup> day of October, 2024 250 by the Deputy Registrar, High Court Kitgum Circuit.

| | 1. Deputy Registrar, | | |--|-------------------------------|-----------------------------------------------------------------------------------------| | | High Court Kitgum Circuit: | - Her Worship Suzanne Aisia Musooli. | | | 2. Counsel for the Applicant: | - Mr. Omoloi Ivan. | | | | 3. Counsel for the 3 <sup>rd</sup> Respondent: - Mr. Komakech Stephen holding brief for | | | | Counsel, Mr. Doii Patrick. | | | 4. The Applicant: | - Mr. Ayella P'Ikoya. | | | 5. $1^{st}$ Respondent: | - Ms. Okum Margret, <i>Pro Se.</i> | | | 6. $2^{nd}$ Respondent: | - Mr. Okeny Godfrey, <i>Pro Se.</i> | | | | |

- Ms. Oting Santa. - Mr. Atube Michael.

7. $3^{\text{rd}}$ Respondent:

Philip W. Mwaka

Acting Judge of the High Court.

8. Court Clerk at the Hearing:

**High Court Kitgum Circuit.** 265

$31<sup>st</sup>$ day of October, 2024.

255