Galukanda v Kibirige & 3 Others (Miscellaneous Application 23 of 2023) [2023] UGHC 396 (30 June 2023)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MASAKA MISCELLANEOUS APPLICATION NO.23 OF 2023 (ARISING FROM CIVIL SUIT NO.18 OF 2015)**

**GALUKANDA KIGANDA MICHAEL::::::::::::::::::::::::::::::::::::::::APPLICANT**

#### **VERSUS**

### **1. RECHAEL NAKIRYA KIBIRGE**

#### **2. MICHAEL KAGIMU**

**3. ATTORNEY GENERAL**

**4. KABANDA SIRAJE::::::::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS.**

#### *Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

#### **RULING.**

This Application was brought under Section 222 of the Succession Act (as amended), Section 98 of the Civil Procedure Act, Order 24 Rules 4(1), 4(2) and 12 and Order 6 Rule 19 of the Civil Procedure Rules SI 71-1 seeking orders that;

1. The 1st and 2nd Respondents be appointed legal representatives of the late Kibirige George William and be substituted in the place of the late as Defendants in Civil Suit No.18 of 2015. 2. Costs of the Application be in the cause.

The Application was supported by an affidavit deponed by the Applicant where he states as follows that;

1. Kibirige George, a 2nd Defendant in HCCS. No.18 of 2015 passed on in 2021 when the suit had not yet been determined.

2. The cause of action survives and continues.

3. The estate of the late Kibirige is yet to appoint an administrator and the process may take a long time.

4. It is just and equitable that the 1st and 2nd Respondents being widow and the son of the late Kibirige respectively, be appointed as legal representatives and be made part of the suit as codefendants for the main suit to be determined.


The 1st, 2nd and 3rd Respondents never filed affidavits in reply though there is proof that the 1st and 3rd Respondents were duly served. However, the 4th Respondent filed an affidavit in reply where he states as follows that;

1. The Application does not disclose a cause of action against him and there is no reason as to why he was made party to the Application.

2. The summons were issued on 15th/03/2023 and his lawyers were served on 12th/04/2023 after the expiration of 21 days without seeking leave of this Honorable Court.

3. He is not a family member to the family of the late and neither is he a beneficiary to the estate.

4. The Application should be dismissed against him with costs.

When the matter first came for hearing, only Counsel for the Applicant and the 1st Respondent were present. The rest of the Parties were absent. The Court instructed the 1st and 2nd Respondents to file affidavits in reply but by the time of determination of this Application, none of them heard filed replies to the Application.

I also note that when the 1st Respondent appeared before this Court, she objected to being made a legal representative and denied having a son called Michael Kagimu (2nd Respondent).

The Applicant and the 4th Respondent filed written submissions.

In submissions, the 4th Respondent's Counsel raised 2 preliminary objections;

1. The 4th Respondent was served with expired summons.

2. The Application does not disclose any cause of action against the 4th Respondent.

#### **4 th Respondent's Submissions on the Preliminary Points of law raised.**

#### 1. **He was served with expired summons.**

Counsel submitted that the summons were not served within 21 days as required by Order 5. Counsel submitted that the summons were issued on 15th/03/2023 and they were served on his Advocates on 12th/04/2023. As a result, Counsel prayed that the Application be dismissed against the 4th Respondent.

#### 2. **The Application does not disclose any cause of action against the Respondent.**

Counsel submitted that the Application only seeks prayers against the 1st and 2nd Respondents and as a result, the 4th Respondent was not to be made party to the Application. Counsel cited


Order 7 Rule 11(a) of the Civil Procedure Rules SI 71-1 to support the proposition that the Application shall be rejected if it does not disclose a cause of action against a party.

On the merits of the Application, Counsel submitted that as much as he was a co-defendant with the late Kibirige George, matters of the late Kibirige's estate do not concern him. It was submitted that the Application is misconceived against the 4th Respondent.

There was no reply to the preliminary objections as raised by the 4th Respondent.

# **Submissions for the Applicant on the merits of the Application.**

Counsel submitted that there is a pending suit before this Court where, the late Kibirige George William is one of the Defendants. Counsel further submitted that there is need to appoint legal representatives for purposes of defending the suit to its conclusion. Counsel relied on Section 222 of the Succession Act to submit that the Court has powers to grant letters of administration for the limited purpose of defending this suit. Counsel also relied on the case of Hadija v Lddi [1974] EA 50.

Counsel then submitted that a grant of this nature is made where owing to the special circumstances of the case, the urgency of the matter as appears from the affidavit is great that it would not be possible for the Court to make a full grant in sufficient time to meet the necessities of the estate of the deceased.

Counsel submitted that the process leading to the issuance of letters of administration for the estate of the deceased has not commenced and the family members are unwilling to take out letters of administration because the estate has issues and as a result, Court is unable to make a full grant.

Counsel then submitted that the circumstances warrant an issue of letters of administration ad litem, to enable protection of the Deceased's interest in the suit. It was then submitted that Order 24 Rule 4(1) empowers the Court, in such an Application to cause the legal representative of the deceased Defendant to be made a party to the suit.

Counsel then submitted that upon substitution, there is a need to also amend the Pleadings in the main suit to reflect the changes.

Having carefully considered the affidavits to this Applications and submissions thereto, I now proceed to determine this Application.


### **Determination of Application.**

I shall determine the preliminary objections first.

A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit (see; *Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969] EA 696*). It raises a pure point of law which is usually on the assumption that all the facts pleaded by the other side are correct.

# **1. The Application does not disclose a cause of action against the 4th Respondent.**

It is important to note that the above Application is a miscellaneous Application, that is; there is an existing suit. As much as the Application may not seek specific prayers against the 4th Respondent, it is my observation that this Application has a bearing on the main suit. The Applicant seeks substitution of the deceased co-defendant with his legal representatives appointed by Court and a subsequent amendment of pleadings, this in my view has a bearing on the main suit and all parties thereto to which, the 4th Respondent is party. In addition, the law requires service of notices on any party affected by the notice. (see: *Order 52 Rule 2 of the Civil Procedure Rules*)

It is my opinion that service of the Application on all parties to the main suit promotes smooth running of proceedings that is to say; all parties are kept in the loop of the events transpiring in the suit. I also note that no injustice has been occasioned on the 4th Respondent by this Application.

In premise, this preliminary objection is over ruled.

# 2. **The 4th Respondent was served expired summons.**

It is now settled law that Applications, whether brought by way of notice of motion or summons in chambers, have to be served as stipulated under Order 5 of the Civil Procedure Rules . (see; *Order 49 Rule 2* of the *Civil Procedure Rules* and the case of *Registered Trustees of Madi West Nile Diocese versus Lucia Eyotaru and others, HCMA. No.43 of 2021*).

*Order 5* of the Civil Procedure Rules provides as follows; *Order 5 rules 1 (2)* of the *Civil Procedure Rules* provides as follows;


*Service of summons issued under sub-rule (1) of this rule shall be effected within twentyone days from the date of issue; except that the time may be extended on application to the court, made within fifteen days after the expiration of the twenty-one days, showing sufficient reasons for the extension.*

*Sub rule (2) provides that where the summons have not been served in time, or where no application has been made to extend the time within which serve the summons or where an application is made and it has been rejected, the suit shall be dismissed without notice.*

In *Rashida and Another versus Adrisi HCCA. No. 9 of 2017*, It was held that non-compliance with the requirements of renewal of summons to file a defence is considered a fundamental defect rather than a mere technicality and it cannot be cured by inherent powers since issuance and service of summons to file a defence goes to the jurisdiction of the court.

Where there has been noncompliance, the suit stands to be dismissed against the parties that were not properly served as required by law.

I observe that the 4th Respondent was served the Application out of time and as such, the service was of no legal effect as against the 4th Respondent. It is also my observation that the Applicant never sought an extension of time to serve out of time.

It is also my observation that although it is the Applicant's contention that the 2nd Respondent is a son to the late Kibirige, when the 1st Respondent appeared before this Court, she stated that she did not have any son called Michael Kagimu, the 2nd Respondent. Secondly, on considering the affidavit of service, it is my observation that there was never any service effected on the purported 2nd Respondent.

It is therefore my finding that having not properly served the 4th Respondent or the purported 2 nd Respondent, the Application stands dismissed as against the 2nd and 4th Respondents but shall continue against the 1st and 3rd Respondents.

#### **Merits of Application.**

The Applicant seeks to have the name of the deceased Defendant substituted with the name of the 1st Respondent in the main suit as a legal representative for purposes of disposing the suit. As rightly submitted by Counsel for the Applicant, the Court has the power to grant letters of administration in exceptional circumstances under *Section 222 of the Succession Act (as amended)*.


*Section 222* provides as follows; *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.*

The case of *Okway versus Oddia and Another, HCMC. No.39 of 2016* cites the case Hadija v Lddi [1974] EA 50 with approval.

In *Okway versus Oddia and Another, (supra),* it was held that *a grant of this nature is made where owing to the special circumstances of the case, the urgency of the matter as appears from the affidavit is so great that it would not be possible for the court to make a full grant in sufficient time to meet the necessities of the estate of the deceased. It is in the nature of a grant of administration ad litem, limited for the purpose of filing or prosecuting a suit or defending a suit, with no powers to the grantee to distribute the estate under the grant. Such a grant is permitted to be issued without prior advertisement. All other grants must be advertised and cannot be made until there has been published notice of the application for the grant inviting objections thereto to be made known to the court within a specified period of not less than fourteen days from the date of publication and the period so specified has expired.*

I have had the benefit of perusing other cases that considered the application of Section 222 of the Succession Act. It is my observation that Applications of this nature are granted where there is no objection by the proposed Administrator (legal representative) to be issued with the letters of administration ad litem for purposes of prosecuting or defending the suit on behalf of the deceased and other parties to the suit also do not object to the same. (See; *Balikudembe Jumba and others versus Nkizi Rona and others, HCMC. No.11 of 2015, Bekalaze Ronald versus Lubwana Moses and 209 others, HCMA. No.941 of 2021, Okway versus Oddia and Another (supra).*)

My Second observation with regards to the above authorities is that the process for obtaining full letters of administration had already commenced but owing to the longevity of the process and urgency of circumstances, there was a need to appoint the nominee Administrator for the


limited purpose of defending or prosecuting the suit pending the conclusion of the process of obtaining full letters of administration.

However, in the Application before this Court, the proposed Administrator (1st Respondent), a widow to the late Kibirge objects to being appointed as the legal representative. The process of obtaining letters of administration has also not commenced.

This Court has considered such a scenario in *Ssalongo Muwanga George v Nasser Abdu Ssebagala, HCMA. 578 of 2021*. In the above case, the Applicant sought to have the Respondent (son to the deceased) substituted for the deceased in the main suit for purposes of continuance of this suit. However, the Respondent objected to being appointed as the legal representative. The Learned Judge observed that the law does not compel any one to be a legal representative and the Respondent could not be compelled to be a legal representative to the deceased.

It is not in dispute that the late Kibirige who was a Defendant in the main suit passed on and that there is a need to appoint a legal representative for purposes of defending the suit. However, the person suggested by the Applicant is not willing to be appointed and neither has the family of the deceased held a meeting to consider the 1st Respondent as best suited to obtain the letters of administration even though legally she might not need a letter of no objection.

In giving a literal meaning to Section 222 of the Succession Act, the wording of the provision does not suggest that the Court can compel a person to act as a legal representative against their will. The Applicant did not furnish any authorities where a person was compelled to act as legal representative against their will and neither have I come across an authority to support the same. Am therefore inclined to follow the holding in *Ssalongo Muwanga George v Nasser Abdu Ssebagala(supra)* and hold that the 1st Respondent can not be forced against her will to be a legal representative of the deceased.

I would advise the Applicant to find an alternative nominee willing to take on the role and file a fresh application to effect the substitution.

In the premise, this Application is without merit and is dismissed with no order as to costs.


I so order.

Dated and delivered electronically at Masaka this 30th day of June, 2023.

# **Victoria Nakintu Nkwanga Katamba.**

**Judge.**