Karyeija v Others (Civil Application No. 120 of 2002) [2003] UGCA 26 (13 March 2003)

### TEE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### CORAM: HON. JUSTICE A. TWINOMUJUNI, JA $(SINGLE JUDGE)$

### CIVIL APPLICATION NO.120 OF 2002

ANNAH KABUNGA......

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### VERSUS

............ APPLICANT

# LEONIA KARYEIJA & 2 OTHERS....................................

# $RULING:$ </u>

This is an application by Notice of Motion "for an order that the court grants extension of tire within which to institute an appeal against the decision of the High Court in Civil Suit No.597/95, AND FOR AN ORDER permitting the name of the legal representative of the deceased, the former plaintiff to institute the appeal." The application is supported an affidavit s worn by the son of the applicant dated 30<sup>th</sup> October 2002.

When the application vis called for hearing, Mr. Joseph Zagvenda, learned counsel for the applicant, applied for an adjournment of 30 minutes in order to secure Civil Applies Ion No.74/2001 which he believed would strengthen

his arguments in arguing this application. Mr. BlaiseBabugumira, learned counsel for the respondents opposed the application to adjourn. He argued that there was nothing validly before me to adjourn. He stated that this application was filed in the names of a legal representative who is not yet on record in the High Court Civil Suit No.597/95 as required by Order 21 Rule 3 of the Civil Procedure Rules. Learned counsel submitted that as the plaintiff in the High Court died before lodging an appeal to this court, there is no appeal pending here and therefore an application to substitute a deceased appellant by his legal representative does not arise.

Mr. Zagyenda conceded hat there is indeed no appeal pending in this court but insisted that this count has the power under Rule 1 of the Rules of this $\overrightarrow{c}$ ourt to entertain the application.

Rule 84(1) of the Rules of this court provides: -

"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."

Order 21 Rule 3 states: -

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"Where one or two or more plaintiffs dies and the cause of action does not survive or continues to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaint ff dies and the cause of action survives or continues, the gourt, on application made in that behalf,

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shall cause the legal representative of the deceased plaintiff to be rade a party and shall proceed with the suit."

The combined effect of these provisions is that no appeal can be filed in the Court of Appeal in the names of a dead person. However, an appeal can be instituted in the names of the legal representative of the deceased. In order for such a legal representative to be able to proceed with the suit in the High-Court or in this court, he must first apply to replace the deceased in accordance with Order 21 Rule 3 of the Civil Procedure Rules. It is only then that he can have the locus standi to file an appeal and/or to make an application arising from the suit, in the High Court or in this Court.

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A legal representative cannot make an application in this court to be put on record as a party to a suit unless he/she makes the application in the High Court first --rule 41(1) of the rules of this court - or at the time of death of the deceased, there was an appeal pending in this court.

Only two weeks ago an application filed by the same applicant, Annah Kabunga vs. Leonia Hanveija and 2 Others Civil Application No.121 of 2002, was dismissed by this court on the grounds that the "application" having been filed in the names of the legal representative without the order of court, is incompetent." That holding was made after counsel for the applicant applied for adjournment in order to rectify certain irregularities Counse for the respondents objected, as in this case, that there was nothing to adjourn, and this court upheld the objection

Similarly, I uphold the objection in this case that there is nothing to adjourn and this application is struck out as incompetent with costs to the respondents.

Dated at Kampala this 4<sup>h</sup> April 2003.


### IN THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

# CIVIL APPLICATION NO. 121 OF 2002

### CORAM: HON. LACY JUSTICE L. E. M. MUKASA-KIKONYOGO, DCJ. HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE C. N. B. KITUMBA, JA. ANNAH KABUNGA: ....................................

#### **VERSUS**

- LEONIA KARE JA $1.$ - $\overline{2}$ . **TIRWOMWE** - T. MAFURIRA::::::::::::::::::::::::::::::::::: $\mathfrak{I}$

#### **RULING**

When this application was called for hearing, Mr. Joseph Zagyenda. learned counsel for the applicant, applied for an adjournment to enable him rectify some defects in *Le* application.

The application was filed in the name of a legal representative of a deceased party before obtaining a court order to put her on record. However, that order had been sought in Civil Application No. 120 of the year 2002, which is still pending before this court. It was filed under Rule $84$ of the rules of this C; urt.

In reply, Mr. Babigum 11, learned counsel for the respondents, vehemently opposed the application for an adjournment on the ground that the application was incompetent in that it had been filed in the name of the legal representative of : deceased party before the court granted her an

order as provided under either Order 21 Rule 3 of The Civil Procedure Rules for the High Court or Rule 96 of the Rules of this Court. Counsel cited Civil Appeal No. 9 of 1998, Uganda Corporation Creameries Ltd. Vs Reamation Ltd Court of Appeal unreported, where this court held that the application was incompetent because the notice of appeal had been filed out of time. When the appeal was called for hearing, like in the present matter before us, counsel for the appellant sought for an adjournment in order to rectify the aforesaid defect. Counsel for the Respondent or posed the application for the adjournment on the ground that he appeal was incompetent and there was nothing to adjourn The Court upheld his argument.

Similarly, the instant application having been filed in the name of the legal represents tive without the order of court, is incompetent. There is nothing to adjourn. $\Box$

In the result we uphold the objection of Mr. Babigumira and strike out the application with costs.

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Dated at Kampala this 13th day of the month of March in the year of 2003.

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E. M. Mukasa-Kikonyogo, Deputy Chief Justice

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G. M. Okello Justice of Appeal

Cres Cleans<br>C. N. B. Kitumba Justice of Appeal