Kirya v Baikaire (Civil Suit 34 of 2023) [2024] UGHC 583 (30 April 2024)

### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MASINDI CIVIL SUIT NO. 0034 OF 2023**

**KIIRYA YOLAMU :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

#### **VERSUS**

10 **BAIKAIRE JOHNSON ::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANT**

#### **BEFORE: Hon. Justice Isah Serunkuma.**

#### **RULING**

This short ruling is premised on a preliminary objection raised by the defendant about the competency of the suit. The plaintiff herein instituted this suit against the defendant for a declaration that the defendant is guilty of mismanagement of the estate of the late Yoweri

20 Kabwimura Gafaki by intermeddling, failure to file a truthful inventory, not tracing or distributing estate land, and a declaration that the Letters of Administration be revoked. The same be granted to the plaintiff, an order for permanent injunction, general damages, and costs of the suit.

It is the plaintiff's case that he is a surviving biological child of the late Yoweri Kabwimura Gafaki, who, upon his death, the Letters of Administration were granted to the defendant vide *Administration Cause No. HCT-12-CV-AC-0008 of 2020*. That at all material times, the defendant omitted to involve the plaintiff and uttered a false petition inter alia by fraudulently omitting to mention a fuel station in Masindi as one of the properties left behind by the late Yoweri Kabwimura Gafaki. By letter dated 28th November 2022, the plaintiff, 30 through the administrator general, requested the Chief Administrative Officer to convene a verification family meeting, but the defendant's counsel halted the same. That the defendant has, without reasonable cause, failed to exhibit a true inventory and account for the estate within the time prescribed by the law.

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On the other hand, in a written statement of defence filed by counsel Akugizibwe Richard, it was stated that the plaintiff has no cause of action against the defendant because the suit is incompetent, bad in law, and an abuse of the court process since it was filed against a deceased person.

# *Representation and hearing*

The plaintiff is represented by Counsel Ian Musinguzi of M/s Musinguzi & Co. Advocates, whereas Counsel Akugizibwe Richard of M/s Akugizibwe & Co. Advocates represents the defendant. Both advocates filed their written submissions as hereunder.

## *Defendant's submission on the preliminary objection*

10 Counsel submitted that the plaint before this court is incurably defective and that no amount of amendment can cure the defects in it for having been brought against a deceased person. Counsel relied on the death certificate attached to the written statement of defence. Counsel further relied on the case of *Uganda Vs Mwesigwa & Others (Criminal session No. 1348 of 2016), where a death certificate was held to be conclusive evidence of the death of a person*. Counsel also relied on the case of *Babu Bhai Dhanji Vs Zainab Rekwe [1964] EA Pg. 24,* where it was held that a case against a dead person is null and of no legal consequence. In conclusion, counsel prayed that this court be pleased to dismiss this suit with costs to the estate of the deceased defendant.

# *Plaintiff's submission in reply to the preliminary objection*

- 20 In response to the preliminary objection raised, counsel submitted that the defendant's preliminary objection lacks merit because the law allows the administrators to be substituted for the defendant such that the matter proceeds on merit. Counsel jointly submitted on four issues, namely. - 1. Whether a dead person can continue to hold letters of administration. - 2. Whether the defendant should be substituted with his administration and the suit heard on merit. - 3. Whether an estate can remain without administration.


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### 4. What are the remedies available?

Counsel submitted that the defendant, who is now deceased, cannot continue to hold letters of administration. Counsel relied on Section 234 (2) (d) of the Succession Act, which enjoins this court to revoke letters of administration granted to the defendant because he is dead. Counsel added that the defendant's death rendered the suit letters of administration inoperative and that it is necessary for the court to revoke the grant for practical reasons.

Counsel stated that since the defendant administrator has become incapable of managing his affairs because of death, the grant should be revoked. Counsel submitted that since the 10 object of the power to revoke a grant is to ensure the due and proper administration of an

estate and protection of the interests of those beneficially interested, such as the plaintiff herein, the grant should be made to the plaintiff.

Counsel added that this honourable court must keep in view the due and proper administration of the suit estate by revoking the defendant's administration, which has become abortive due to death. Counsel stated that the defendant cannot administer the estate, which justifies a revocation of the grant for being inoperative, and a fresh grant ought to be made in favour of the plaintiff.

Counsel relied on Order 1 Rule 10 (2) of the Civil Procedure Rules, where the court can strike out the defendant's name and replace it with another. In this case, he chose to replace the 20 defendant's name with Musiime Winfred and Baikire Lydia, who were appointed administrators vide grant of this court Administration Cause No. HCT-12-CV-AC-028 of 2022 dated 13th June 2022. Counsel added that the administrators' presence is necessary to enable the court to adjudicate and settle all questions involved in the suit effectually and completely. Counsel relied on Section 180 of the Succession Act, which provides that an administrator of a deceased person's estate is his or her legal representative for all purposes and intent, suggesting that the defendant be replaced with his legal representatives and the suit continues.

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Counsel added that to avoid multiplicity of suits, the administrators should be brought in the suit because, in the unlikely event that the court dismissed the plaint, the plaintiff is at liberty in law to institute the same cause of action against the administrators of the defendant's estate. In conclusion, the counsel submitted that the defendant's counsel's preliminary objection be found to lack merit because the defendant's name can be struck off the court's record and replaced with his legal representatives, who are his administrators.

In rejoinder, the counsel for the defendant reiterated his earlier submissions and further stated that the plaintiff, in his submissions, sought to substitute a deceased defendant. Yet, 10 he instituted the suit while aware that the defendant was dead and buried in 2021. Counsel submitted that Order 1 Rule 10 of the Civil Procedure Rules allows one to substitute a party wrongly sued. Still, such a party to be substituted for must exist, which is not the case in the current case since the current defendant is non-existent.

Counsel relied on the case of *Wasswa Primo Versus Moulders (U) Limited, Misc. Application No. 0685 of 2017*, where it was held that a non-existent defendant could not be substituted because there is no valid plaint. Counsel submitted that the written statement of defence has proof annexed to it that the defendant in the instant case is deceased. Based on the authorities provided, the defendant cannot be substituted, nor can the plaint be admitted. Counsel prayed that the case be struck out with costs to the estate administrators 20 of the late Baikire Johnson, the defendant in the instant case.

*Court Analysis.*

Having perused the submissions of both counsel and their pleadings, I must note that the issues as raised by the plaintiff's counsel do not in any way have any relation with what transpires in this objection and thus shall disregard them. The issue before this court is whether this suit is competent before this court. One of the issues raised by counsel for the defendant is that the plaint does not disclose a cause of action against the defendant since the defendant is deceased. Order 1 Rule 3 of the Civil Procedure Rules states.

*"3. Who may be joined as defendants?*

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*All persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against those persons, any common question of law or fact would arise."*

The above provision is one of the general principles in law about who should be sued in the courts of law. However, one must note and be vigilant to ascertain the capacity of the intended defendant—that is, whether he or she exists legally or as recognised by the law; otherwise, the competency of the intended suit shall be questioned.

According to the defendant's counsel, the defendant, in this case, Baikaire Johnson, died on the 31st 10 day of March 2022 because of cardiac arrest as per the death certificate dated 4th May 2022 marked **Annexture "A"** as attached to the written statement of defence. Counsel also added that letters of administration were obtained by Musiime Winfield, Baikaire Lydia and Twinomujuni Isaac about the estate of the deceased on the 13th day of June 2022 from this honourable court.

The above suit was instituted on the 4th day of October 2023, a year after the defendant's death. Clearly, by then, the defendant had no capacity to be sued since he was no longer in existence. In the case of *Babubhai Dhanji Pathak v Zainab Mrekwe [1964] 1 EA 24*, it was held that.

*"A suit instituted by a dead person is a nullity. The power to substitute a plaintiff where* 20 *a suit has been filed in the name of a wrong person, conferred by Order 10, r. 1(1) in the First Schedule to the Indian Civil Procedure Code can only be exercised where the "wrong person" was living at the date of instituting the suit and has no application where the "wrong person" was dead at such date."*

Regarding the current facts and based on the pleadings before me, the current Civil Suit No. 0034 of 2023 is null and has no cure. Perhaps counsel for the plaintiff was hit with denial when he prayed to this court for the defendant to be substituted with his administrators so that the suit could proceed. The substitution would have been proper where the suit upon

its institution, that all parties to it were alive and later, one of them died. This is not the case here since the defendant died before the institution of the suit.

Hence, the preliminary objection raised by counsel for the defendant is upheld. This suit is struck out with costs to the defendant's administrators by both the plaintiff and his counsel, each meeting 50% of the costs since counsel for the plaintiff, as well as the plaintiff himself, ought to have ascertained the defendant's capacity before instituting this case.

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### **It is so ordered.**

**Dated and delivered on this 30th Day of April 2024.**

10 **……………………. Isah Serunkuma JUDGE**