Executors of the estate of the late Ssebyala Fred & 2 Others v Sebyala & Another (Miscellaneous Application 30 of 2024) [2024] UGHC 463 (14 June 2024)

## **THE REPUBLIC OF UGANDA**

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

## **MISC. APPLICATION NO. HCT-17-LD-MA-0030-2024**

**(ARISING OUT OF CIVIL SUIT NO. HCT-17-LD-CS- 0011-2024)**

**(FORMERLY LAND DIVISION CIVIL SUIT NO.870 OF 2020)**

- **1. EXECUTORS OF THE ESTATE OF THE LATE SSEBYALA FRED** - **2. EXECUTORS OF THE ESTATE OF THE LATE MULINDWA EDWARD** - **3. MUTAAWE FRED…………………………………………APPLICANTS**

### **VERSUS**

**1. RACHAEL SEBYALA 2. NAMPIMA SSANYU MULINDWA……………………RESPONDENTS**

## **BEFORE LADY JUSTICE HENRIETTA WOLAYO RULING IN AN APPLICATION TO JOIN THE SUIT**

Introduction

- 1. On 8.4.2024, the applicants, the executors of the estate of the late Ssebyala Fred, the executors of the estate of the late Mulindwa Edward and Mutaawe Fred moved court under Section 33 of the Judicature Act Cap 13, Section 98 of the Civil Procedure Act Cap 71, O.1 r 3 & 13, O.52 r 1 & 3 of the Civil Procedure Rules SI 71-1 for orders that; - a. The applicants be joined as defendants in Civil Suit No.11 of 2024. - b. This court be pleased to grant the applicants leave to file written statement of defence and counter claim in Civil Suit No.11 of 2024. - c. The costs of the application be provided for.

2. The application is supported by the affidavits sworn by Ssaka Godfrey and Ssewanonda Steven Ssozi. The first respondent Rachael Sebyala filed an affidavit in reply on 7.5.2024.

#### Representation

3. During the hearing, M/s Sebbowa & Co. Advocates represented the applicants, while M/s Nakachwa, Matovu & Co. Advocates represented the respondents. Both counsel filed written submissions that I have carefully considered.

#### Background facts

4. By a plaint dated 2.11.2020, Rachael Sebyala, the first respondent brought a suit against Nampima Ssanyu Mulindwa, the second respondent in Civil Suit No.11 of 2024; formerly **Land Division Civil Suit No.870 of 2020** seeking a declaration that Nampima is a trespasser on the suit land comprised in FRV HQT3 Folio 24, Block 207 Plot 48 land at Kalasa, Kabira, an eviction order and vacant possession. The executors of the estate of the late Ssebyala Fred, the executors of the estate of the late Mulindwa Edward and Mutaawe Fred moved court to be added as defendants in the above suit.

#### Consideration of the application

5. The issue for determination is whether the executors of the estate of the late Ssebyala Fred, the executors of the estate of the late Mulindwa Edward and Mutaawe Fred can be added as defendants in High Court Civil Suit No.11 of 2024.

6.*Order 1 r.10 (2) of the Civil Procedure Rules SI 71-1* provides for addition of parties and states that:

*"The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."*

- 7.**Rugadya J** in **Vastina Kyalisima v Josephine Abaasa HCMA No.500 of 2021 (Arising from Civil Suit No.1075 of 2020) Ulii** cited with approval **Kololo Curing Co. Ltd v West Mengo Co-op Union Ltd [1981] HCB 60,** where court noted that under *Order 1 r.10 (2)* not only can the parties avail themselves of the provisions of the rule but court can also on its own motion join any party as plaintiff or defendant if in court's opinion such joinder would facilitate effectively and completely the determination of the suit. This means that joinder of the applicants to the defendant must be necessary for the effective and complete determination of the suit. - 8. The court held that it is a fundamental consideration that before a person can be joined as party, the applicant must establish that they have a high interest in the case. In addition, it must be clearly

demonstrated that the orders sought in the main suit would directly or legally affect them.

- 9. Mr. Ssaka and Mr. Ssewanonda whose affidavits in support of the application deposed that the late Ssebyala was the lawful purchaser of land comprised in FRV HQT3 Folio 24, Block 207 Plot 48 land at Kalasa, Kabira which is the suit land and subject of the orders sought in Civil Suit No.11 of 2024. - 10. According to them, the late Ssebyala left behind a WILL where the first applicants were appointed executors and obtained letters of probate. They consequently distributed the properties of the late Ssebyala to his beneficiaries including Rachael. - 11. Further, they averred that according to the WILL, the late Edward Mulindwa was appointed heir of the late Ssebyala where he was bequeathed the suit land comprised in FRV HQT3 Folio 24, Block 207 Plot 48 land at Kalasa, Kabira. - 12. The two applicants deposes that the late Edward Mulindwa also left the above land under the responsibility of his heir Mutaawe Fred under his WILL. - 13. According to them, none of the respondents who are parties in HCCS No.11/2024 is the lawful owner of land comprised in FRV HQT3 Folio 24, Block 207 Plot 48 land at Kalasa, Kabira and the fact that Racheal is seeking a declaration that Nampima is a trespasser on the suit land

and seeks vacant possession of the same, might result into orders which affect the applicants as well.

- 14. On the other hand, this application is opposed by Rachael Ssebyala who deposed that she is a widow to the late Ssebyala Fred as well as mother to the late Edward Mulindwa. She further contends that the suit land comprised in FRV HQT3 Folio 24, Block 207 Plot 48 land at Kalasa, Kabira was jointly purchased by the late Ssebyala and herself on 18.5.2012 with a view of owning a country home. - 15. According to her, the two were subsequently registered on the certificate of title as joint tenants on 25.6.2013 and embarked on the process of developing the same. The certificate of title attached to the plaint shows that Fred Sebyala and Rachael Sebyala were entered on the title on 25.6.2013 at 12:30pm under instrument number 00000209. - 16. She further contends that when her husband, the late Sebyala passed on in 2017, he was buried on the suit land after which she went ahead and applied to have his name removed from the title leaving her as sole owner. - 17. The affidavits of the applicants contains evidence to support the trial. The applicants do not disclose any substantive interest in the subject matter which is land registered in the name of Rachael Sebyala, the first respondent. Rachael Sebyala and Nampima, the second respondent are disputing over this land comprised in FRV HQT3 Folio 24, Block 207 Plot 48 land at Kalasa, Kabira, which means the best the

applicants can do as executors is to give evidence as court witnesses. The application for the unnamed executors to be added as parties is therefore dismissed.

- 18. Given the importance of the evidence in possession of the applicants, they will come as court witnesses to give more context to the case especially on how the defendant Nampiima came to be in possession. - 19. No order as to costs since the applicants will be court witnesses. - 20. The main suit is fixed for hearing the testimony of the applicants Ssaka Godfrey and Ssewanonda Steven Ssozi on 2.9.2024 at 9 a.m.

# **DATED AT LUWERO THIS 14TH DAY OF JUNE 2024.**

# **LADY JUSTICE HENRIETTA WOLAYO**

Legal Representation M/s Sebbowa & Co. Advocates M/s Nakachwa, Matovu & Co. Advocates

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