Kiyingi v Kajuma & 2 Others (Civil Suit 14 of 1992) [1992] UGHC 58 (2 April 1992)

Full Case Text

## THE REPUBLIC OF UGANDA

the How.

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 14 OF 1992

WYCLIFF KIYINGI $\begin{smallmatrix} 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 & 1 &$ **PLAINTIFF**

## VERSUS

mm. M. Justice Figanda Ittende.

| AUGUSTINE KAJUMA | | | |---------------------------|------------------------------------------|--| | $2.$ MUSA LHAMUTALA | :::::::::::::::::::::: DEFENDANT. | | | THIS REGISTERAR OF THIS ( | | |

BEFORE: The Honourable Mrs. Ag. Justice M. Kireju.

RULING.

This is an application for a temporary injuction made under Or.37 rules 2,3,5, and 9 of C. P. R. The application was made exparte and supported by the affidavit of applicant Wycliff Kiyingi dated 18/2/92. The applicant/plaintiff sweks an intunation against the first and second defendants restraining them from threatening, harassing or evicting the plaintiff and his customary tenants from the suit land to wit Kibuga Block 6 Plot $243,247$ & $248$ at Katwe and further to restrain the defendants or their servants or agents from trespassing on the said land and continuing to develop the said land until final disposal of The applicant also prayed that notice of this application the suit. to the defendants be waived and costs of the suit be provided for.

The main grounds of application were as narrated in the Chamber Summons and presented by Mr. Kibirige counsel for the applicant are that, this application should be heard exparte because of the urgency of the matter and that if notice is given to the respondents the applicant will be occassioned great suffering and loss. Secondly that the applicant filed suit against the defendent/respondents for fraudulently obtaining a title in respect of the suit land which belonged to the applicant's

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r ' -ri ('.'•c /..all- . Nabossa, That the first and second' defendants have • <j;ici \*.osJy ^/oc.icivoly crespasqed un the said land and with tne nolp of <?.rmhd. men assaulted and harassed and tried to evict the plaintiff's customary tenants from the suit land. That the 1st defendant is in the process of constructing a house on the land in clisnute. The defendants have also destroyed the property of the customary holders and taken away some of their property, they were also Loa4:-xx ,.p,

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According to the pleadings the plaintiff is bringing the suit - . , ' ( 7. on his own behalf &gt;s a relative and as a representative of the family ' and estate of the late Zalia-Nabossa who died in 1952 andrwas the rogistorjJ^Lp^qpriqt^^of the suit property. In the second paragraph of the affidavit in support of the application he also states that he filed a suit against the defendantz-^npondents for fraudulently obtaining a title, in respect of the suit land which lawfully ..... '■ . belonged to his lite sister Zalia Nabossa, In paragraph 11(c) of the plaint, thu plaintiff seeks a declaration that the plaintiff on behalf of the family and estate of the late Zalia Nabossa is ■' n ee. to have his names registered as a proprietor of the suit pzoproty.

After carefully px-rusing the plaint and the affidavit in support of this application I tried to find out on what basis uho plaintiff/applicant was bringing this application. The plaintiff himself admits th.a\*' the suit property belonged to his late sister who died in 1952 but ho did not state how he became responsible for this suit land on behalf of himself, other members of the family of and estate of late Naboss.., no letters of administration or grant of probate was attachdd to the plaint or to this application ' '• \* \*, - \* • •

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chowing the applicant/plaintiff as the person empowered to administer the estate of late inbussa. Section 190 of the Succession Act is as follows: ..

> " Except as herein after provided, but subject to the provisions of section 5 of the Administrator General's Act, no right to any part of the property of person who has died intestate shall be established in any court of justice, unless letters of administration have first been granted by court of competent jurisdiction."

> > $... / 4$

The above provision is very clear before you can bring action claiming -any right to the property of a person who died intestate you have to have letters of administration. And if someone is In executor, he also must have grant of probate S.187 of Succession refer to Act refer I wish to/the case of Lea Najerio Vs. Alisha I. SELLWARDA HCB /19747 182 Where after the death of the defendant Lea Marieno, her daughter purported to take over the case as a legal representative of the definant and as the successor in title of the Sibonja in dispute, the Chief Magistrate allowed her to be Bussultuted. The plaintiff appealed against the substitution that the daughter had no lecus standi and should not have been added as a party merely because of her affidavit and that of her advocate. Justice Allon as he then was held that in the absence of satisfactory proof by the daughter showing the relevant grant she had no locus standi to be heard in the Chief Magistrate's Court, that the Chief Magistrate had acted wrongly in proceeding to

in his court a.nd that his judgement and decree vhi;e tForh'sribd3 null and void since the appellant/dcferdnnt in th ,.t c.-prt 7'as dead ,;nd and there was no legal representative b e i' o ru hi\$•

J fire. the. plaintiff/applicant in the present application in the same position as th..; daughter in the above cited casein the absence of any proof showing the relevant grant to th? rpplic/iifct allowing hiia to administer the estate of late Nabossa, I find that he- had no locus standi to have his application ent -rtain--d by this court. Sections 187, and 190 of the Succession Act refer.

This' application is incomptent and is accordingly dismi-&s-ed for lack of locus standi. No order to costs.

M.- KIREJU -

.r \

•••I -ta Ag. J U D G, E. 2/4/92 v''/92 Aii-. Kibirigc - for the applicant.

:v. .. Oburu - jour\*' Clerk.

Ruling read before the above.

M. KIREJU V Ag. J U D G E. '

2/^:-/92

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