Kabwami v Mugisha (Civil Appeal 25 of 2019) [2022] UGHC 129 (29 November 2022)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CA-0025-2019

(Arising from BUS-00-CV-MA-0019-2019) (Arising from BUS-00-CV-MA-0645-2017) (All arising from BUS-00-CV-0024-2017)

KABWAMI YASIN !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

### VERSUS

# MUGISHA JULIUS ::::::::::::::::::::::::::::::::::::

**BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

#### **JUDGMENT**

## Introduction.

The appeal arises from the ruling of the learned trial Chief $\Box$ Magistrate sitting at the Chief Magistrate's Court of Bushenyi at Bushenyi delivered on 3rd April 2019 dismissing an application to review its earlier order dated 23rd January 2019 in BUS-00-CV-MA-0645-2017. The brief facts of the matter are that Kabwami Yasin hereinafter to be called the Appellant in 2017 sued Mugisha Julius hereinafter to be called the Respondent for general damages, mesne profits, interest, punitive and exemplary damages and vacant possession arising from breach of contract and trespass.

The record of the trial court indicates that despite having been served, the Respondent did not file a defence in the matter. It was this state of affairs that prompted the Appellant to file BUS-00-CV-MA-0645-2017 seeking inter alia that the trial enters a default judgment against the Respondent and the suit be set down for hearing.

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In her ruling in BUS-00-CV-MA-0645-2017, the learned trial Chief Magistrate held that the Appellant was not clothed with the appropriate locus standi to institute BUS-00-CV-MA-0645-2017 and the suit from which it arose, this was BUS-00-CV-0024-2017. The learned trial Chief Magistrate found that the Appellant had not led any evidence pointing to the fact that he intended to obtain Letters of Administration to estate of his late father Edirisa and neither did he show that at the time of institution of the suit the same was in immediate danger of being alienated. Subsequently, she dismissed BUS-00-CV-MA-0645-2017.

The Appellant feeling dissatisfied by this ruling applied to the trial Chief Magistrate to have it reviewed vide BUS-00-CV-MA-0019-2019. In that application, the learned trial Chief Magistrate found no ground sufficient for her to alter and or review her earlier ruling in BUS-00-CV-MA-0645-2017.

The Appellant has appealed against that ruling to this court.

The Appeal is based on the following two grounds:

- 1. That the trial Magistrate erred in law and fact when she maintained that the Appellant had no locus standi in filing the mother suit without letters of administration for his late father Hajji Edirisa Byarabuza and/or that she did not see any ground for review. - 2. That the trial Magistrate committed several irregularities while holding that the Appellant had no locus standi bringing the mother suit without letters of administration.

When on 15th April 2021 this appeal was before me, counsel for the Appellant informed me that the appeal was ex-parte because the Page 2 of 9

$\mathbb{N}$

application from which it arose from also proceeded ex-parte. The appeal proceeded ex-parte and I directed the Appellant to file written submissions which I have considered.

### Analysis and decision.

Ground 1: The trial Magistrate erred in law and fact when she maintained that the Appellant had no locus standi in filing the mother suit without letters of administration for his late father Hajji Edirisa Byarabuza and/or that she did not see any ground for review.

**[2]** Counsel for the Appellant submitted on this ground that the Appellant is a son to the deceased Hajji Edirisa Byarabuze and has an interest being challenged by the Respondent when he uses it without any valid authority. That the Appellant's interest is established by Section 27 of the Succession Act at 75% and he was thus justified and bound to preserve and protect this interest with or without letters of administration so long as it was not damaging the estate. Counsel referred this court to **Section 268(2)** of the Succession Act in support of this submission.

Counsel argued further that the trial court could not introduce a new issue while writing judgment and decide a case basing on that issue without first having it addressed by the parties. Counsel relied on the decision of the Supreme Court in Interfreight Forwarders (U) Ltd vs EADB SCCA No. 33 of 1993 for this submission. Counsel further submitted that the Appellant did not enter into the contract, the subject matter of the head suit as a representative of the estate of the late Hajji Edirisa but as a beneficiary of his estate. $\mathbb{A}$

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The thrust of the instant appeal is premised on the Latin maxim $[3]$ *locus standi* of the Appellant.

The above Latin maxim consists of two words; "locus" and "standi". The former means place while the latter means standing or right to bring an action. Collectively read together, the maxim means the right to bring an action before court.

According to Order 7 of the Civil Procedure Rules and save for public interest suits, the Plaint in any ordinary suit has to show that the Plaintiff has an actual existing interest in the subject matter before they can be said to be clothed with the appropriate locus standi to be before court.

The Appellant in the instant appeal stated like he did in the court below that his locus standi was tied to the fact that he was a beneficiary to the estate of his late father and his interest was protected by Section 27 of the Succession Act. I agree with the position of the law as submitted upon by counsel for the Appellant in relation to Section 27 of the Succession Act.

The position of the law on the locus standi of beneficiaries in relation to protection of estates in which they have an interest is now well settled by the apex court of this land. Beneficiaries have a right to act in any legal way to preserve their interest in the estate. (See Israel Kabwa vs Martin Banoba Musiga SCC No. 52 of 1995 (1996) 11 KALR 109).

I have had the benefit of looking at the contract and its translation that gave rise to BUS-00-CV-0024-2017; the mother suit. The contract states in part that; $\lambda$

"We the family of the late Edirisa Byarabuze we have extended Mr. Julius Mugisha who rented land used to build nursery bed for tea from 25th/04/2016 up to 25th/04/2017."

It would therefore follow that the suit was not for protection of interest in the late Hajji Edirisas estate but rather an enforcement of a contract made by the beneficiaries with the Respondent. Counsel for the Appellant referred this court to Section 268 of the Succession Act, Cap 162. The provision provides that:

"268. Intermeddling, etc.

A person who intermeddles with the estate of the deceased or does any other act which belongs to the office of executor, while there is no rightful executor or administrator in existence, thereby makes himself or herself an executor of his or her own wrong; except that—

(a) intermeddling with the goods of the deceased for the purpose of preserving them, or providing for his or her funeral, or for the immediate necessities of his or her own family or property; or

(b) dealing in the ordinary course of business with goods of the deceased received from another, does not make an executor of his or her own wrong."

A critical reading of the above provision of the law would show $[4]$ that the family of the late Hajji Edirisa first and foremost dealt in the estate of the deceased without having first obtained authority from court through either letters of administration or probate. These actions amount to intermeddling. They became administrators *de son tort*, that is, of their own right.

So, could an action be maintained in the form of BUS-00-CV-0024-2017; the mother suit out of such an illegal transaction?

It is trite that "Ex turpi causa non oritur actio". No action can arise from an illegal act. No person can claim indemnity or reparation for his or her own wilful and culpable unlawful act. Such a person is under legal disability precluding him or her from stating a claim. (See Candiru vs Centenary Rural Development Bank Ltd (Civil Suit 22 of 2016).

It therefore follows that the mother suit itself was based on an illegality and could not ordinarily stand. To this end, the Appellant would be said not to possess the locus standi to institute it.

Was the learned trial Chief Magistrate wrong to frame an issue on locus standi of the Appellant and subsequently find that the Appellant had no locus standi in the suit?

**[51** Under **Order 15** of the Civil Procedure Rules, the trial court has jurisdiction to frame, settle or determine issues in a suit. The relevant rules of that Order provide;

"1(5) At the hearing of the suit the court shall after reading the pleadings, if any, and after such examination of the parties or their advocates as may appear necessary; ascertain upon what material propositions of law or fact the parties are at variance, and shall there upon proceed to frame and record the issues on which the right decision of the case appears to depend."

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"3. The court may frame issues from all or any of the following materials—

allegations made on oath by the parties; or by any person $(a)$ present on their behalf, or made by the advocates of such parties;

$(b)$ allegations made in the pleadings or in answers to interrogatories delivered in the suit;

the contents of the documents produced by either party." $(c)$ "5(1) The court may at any time before passing the decree amend the issues or frame additional issues on such terms as it thinks fit. and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties

shall be so made or framed."

In Oriental Insurance Brokers Ltd vs Transocean (U) Ltd (Supreme Court Civil Appeal 55 of 1995) [1997] UGSC 1, the apex court in the land took time to interpret this provision which was originally Order 13. Oder JSC (RIP) who gave the lead judgment of the court held that;

"In my view at least two consequences appear to follow from the provisions of 0.13 rr. 1(5), 3 and 5(1) of the CPR. Firstly, a trial court has wide discretion to frame or amend issues from all materials before it, including pleadings, evidence of the parties and submissions from counsel. Secondly, the court may amend issues or frame additional issues at any time, including during judgment. In doing so, the court may impose such terms as it thinks fit." N

The ruling of the trial Chief Magistrate was given on a matter of law on the ground that the Appellant did not have locus standi to bring the application for review let alone the mother suit because he did not have letters of administration for the estate of his late father.

Given the reasoning hereinabove, I am unable to agree with the submission of learned counsel for the Appellant that the learned trial Chief Magistrate erred in law when she framed a new issue during judgment. The issue helped the trial magistrate bring out the illegalities in the suit itself.

#### **[6]** In Active Automobile Spares Ltd vs Crane Bank Ltd and Rajesh **Pakesh SCCA 21/2001** the Supreme court stated that;

"it is trite law that courts will not condone or enforce an illegality." This is a well-established principle of law. If a Plaintiff cannot maintain his cause of action without showing as such part of cause of action, that he has been guilty of an illegality, then the court will not assist him, it is trite law that courts will not condone or enforce an illegality."

The Appellant could not seek the assistance of court while he was himself guilty of an illegality. As the equity maxim goes, "he who comes to the aid of equity must do so with clean hands". This court cannot in similar terms also condone the glaring illegalities that have come to its attention suo moto.

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Ground one of this appeal therefore fails in the terms stated herein above. Since counsel for the Appellant abandoned ground 2 of the appeal, I will equally not go into its merits.

This appeal is therefore dismissed. The ruling and findings of the learned trial Chief Magistrate are hereby upheld.

The Appellant will bear his own costs of the appeal.

I so order.

Dated, delivered and signed at Mbarara this. 2.9th day of 2022.

Joyce Kavuma Judge