Luyimbazi & 16 Others v Kabaaga & 2 Others (Miscellaneous Application 942 of 2023) [2024] UGHCFD 22 (26 April 2024)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA FAMILY DIVISION MAKINDYE **MISCELLANEOUS APPLICATION NO. 0942 OF 2023** (ARISING FROM CIVIL SUIT NO. 246 OF 2022) HAJI SULAIMAN LUYIMBAZI & 16 ORS::::::::APPLICANTS **VERSUS** HENRY FREDRICK KABAAGA & 2 ORS::::::RESPONDENTS

BEFORE HON. JUSTICE JOHN EUDES KEITIRIMA

## **JUDGMENT**

1]. This application was brought by way of Notice of Motion under Order 6 rules 28, 29 and 30, Order 7 rules 1, 11 and 14, Order 52 rules 1, 2 and 3 of the CPR, Section 98 of the CPA, Section 17 (2) and 33 of the Judicature Act (as amended) and section 176 (c) of the Registration of Titles Act.

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## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA FAMILY DIVISION MAKINDYE **MISCELLANEOUS APPLICATION NO. 0942 OF 2023** (ARISING FROM CIVIL SUIT NO. 246 OF 2022) HAJI SULAIMAN LUYIMBAZI & 16 ORS::::::::APPLICANTS VERSUS HENRY FREDRICK KABAAGA & 2 ORS::::::RESPONDENTS

**BEFORE HON. JUSTICE JOHN EUDES KEITIRIMA**

## **JUDGMENT**

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21. The applicants are seeking for orders that; -

- H. C. C. S No. 246 of 2022 Henry Fredrick Kabaaga & 2 others $(i)$ versus Hajji Sulaiman Luyimbazi and 19 others filed on 6th June 2022 be dismissed for being incompetent, frivolous, vexatious and an abuse of court process. - That the said suit should be dismissed for being res judicata. $(ii)$ - That the said suit which was filed on 6th June 2022 be struck out $(iii)$ as it does not disclose a cause of action and is unmaintainable against the applicants and that the respondents lack the locus standi to institute the suit. - That the incumbrances/caveats and or order registered on the $(iv)$ applicant's respective titles comprised in and known $\overline{as}$ Mawokota Block 54, Plots 21, 35, 29, 34, 39, 36, 22, 23, 42, 43, 44, 45, 31, 37, 46, 12, 14, 15, 19, 32, 50, 47, 49, 51, 52, 53, 48, 24, 26, 27, 33, 40 and 41 by virtue of a temporary injunction vide HCMA No. 855 of 2022 arising out of H. C. C. S No. 246 of 2022 be vacated, removed/lifted.

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That the applicants be awarded costs of the suit and of this $(v)$ application.

3]. The application is supported by the affidavits of Hajji Sulaiman Luyimbazi, (the 1st applicant), Basil Tyaba (the 5th applicant) and Kitakule Geoffrey (the 17th applicant) who deposed inter alia; -

- That the respondents who are the plaintiffs in H. C. C. S No. $(i)$ 246 of 2022 have no valid claim and lack the locus standi to file, maintain and challenge the $1^{st}$ to $3^{rd}$ applicant's grant of Letters of Administration in respect of the estate of Petero Tebukya Luyimbazi and or seek to revoke the same, pursuant to the decision of this court vide H. C. C. S No. 07 of 2015-Henry Fredrick Kabaaga versus Hajji Sulaiman Luyimbazi and others. - That the respondents have no locus standi to file and maintain $(ii)$ a suit against the 4th to 17th defendants/applicants challenging their ownership and proprietorship of their respective properties on account of the decisions of this court vide

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HCMA No. 02 of 2022; Henry Fredrick Kabaaga versus Kitakule Geoffrey and others; HCMC No. 033 of 2022; Henry Fredrick Kabaaga versus Kitakule Geoffrey and nineteen others and H. C. C. S No. 07 of 2015; Henry Fredrick Kabaaga versus Hajji Sulaiman Luyimbazi and others.

- That the respondents are not direct beneficiaries of the estate (iii) of the late Petero Tebukya Luyimbazi and therefore, lack locus to challenge the $1^{st}$ to $3^{rd}$ plaintiff's grant of Letters of Administration for the said estate and to challenge the 4th to 17th defendant's proprietorship on their respective pieces of land given, obtained and or purchased from the administrators of the said estate. - That H. C. C. S No. 246 of 2022 Henry Fredrick Kabaaga $(iv)$ and 2 others (beneficiaries of the estate of the late $J. C$ Makayu and the estate of the late Petero Tebukya Luyimbazi *versus Hajji Sulaiman Luvimbazi and 19 others* filed on 6th June 2022 is res-judicata as the issues and disputes raised by the respondents therein have been dealt with by this and other

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courts in H. C. C. S No. 07 of 2015 Henry Fredrick Kabaaga versus Haji Sulaiman Luvimbazi and others; HCMA No. 02 of 2022- Henry Fredrick Kabaaga versus Kitakule Geoffrey and 17 others and HCMA No. 033 of 2022 – Henry Fredrick Kabaaga versus Kitakule Godfrey and 19 others.

- That H. C. C. S No. 246 of 2022 Henry Fredrick Kabaaga and $(v)$ 2 others (beneficiaries of the estate of the late J. C Makayu and the estate of the Late Petero Tebukya Luyimbazi) versus Hajji Sulaiman Luyimbazi and 19 others filed on 6th June 2022 is a nonstarter, incompetent, frivolous and vexatious and does not disclose a valid cause of action against the applicants and is an abuse of court process and therefore ought to be dismissed with costs. - That H. C. C. S No. 246 of 2022 is an utter abuse of court $(vi)$ process and the applicants are being subjected to unwarranted litigation in defending an incompetent suit and hence in the interests of justice the application and orders sought should be granted.

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4]. In her affidavit in reply Ann Rose hereinafter referred to as the 3rd respondent deposes inter alia; -

- That she is advised by her lawyers that she will seek leave to $(i)$ cross examine the deponent Kitakule Godfrey in relation to the contents of his affidavit in support. - That she is advised by her lawyers that the affidavit in support $(ii)$ touches on the merits of the main suit which requires adducing of evidence before the trial Judge. - That she is advised by her lawyers that withdrawal of a matter (iii) is not a bar to filing a fresh suit. - That she is advised by her lawyers that there is no reasoned $(iv)$ decision on the pronouncement of the parties' rights in the said subject matter. - That she is further advised by her lawyers that locus standi or $(v)$ capacity to sue does not resolve the merits and interests of the parties.

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- That she is further advised by her lawyers that the applications (vi) of injunctive orders are discretionary and upon proof of the tests, court shall grant them devoid of the merits of the main suit. - That she is further advised by her lawyers that preliminary (vii) hearings of the applications stated from which the rulings and orders arise do not determine the merits of the main case. - That she is further advised by her lawyers that paragraphs 14, (viii) 15 and 16 of the affidavit in support touch the merits and require the parties to adduce evidence. - That her and her co-respondents ably pleaded material facts $(ix)$ warranting investigations by this court demonstrating a cause of action. - That her and her co-respondents as beneficiaries of an estate $(x)$ have locus to commence an action against the applicants. - That they are claiming as biological daughters and sons of the $(xi)$ late J. C. Makayu who was the biological son and heir of the late Petero Tebukya Luyimbazi and hence they are direct

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beneficiaries to the estate of their late grandfather Petero Tebukya Luyimbazi as grandsons and granddaughters and sons and daughters of the late J. C Makayu.

- That court ought to investigate the interests of the late Makayu $(xii)$ from the subject land. - That the High Court had already issued Letters of (xiii) Administration earlier and the $2^{nd}$ grant held by the $1^{st}$ to $3^{rd}$ applicants is unlawful. - That the suit is not frivolous as it discloses a cause of action $(xiv)$ and is not res judicata. - That she is advised by her lawyers that the unassailable right $(xv)$ to a fair hearing clouds H. C. C. S No. 246 of 2022. - That the application lacks merit and ought to be dismissed with $(xvi)$ costs.

5. Counsel for the applicants and counsel for respondents filed written submissions the details of which are on record and which I have considered in determining this application.

8 | Page $\frac{1}{2}$ 61. The issues to determine now are; -

- Whether H. C. C. S No. 246 of 2022 Henry Fredrick $(i)$ Kabaaga and 2 others versus Hajji Sulaiman Luyimbazi and 19 others filed on $6th$ June 2022 should be dismissed for being incompetent, frivolous and vexatious and an abuse of court process. - Whether H. C. C. S No. 246 of 2022 Henry Fredrick Kabaaga $(ii)$ and 2 others versus Hajji Sulaiman Luyimbazi and 19 others filed on 6th June 2022 should be dismissed for being res judicata. - Whether the said suit should be struck out as it does not (iii) disclose a cause of action and is legally unmaintainable against the applicants. - Whether the said suit should be struck out as the $(iv)$ respondents lack the locus standi to institute the suit. - Whether the incumbrances/caveats or orders registered on $(v)$ the applicant's respective titles comprised and known as

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Mawokota Block 54, Plots 21, 35, 29, 34, 39, 22, 23, 42, 43, 44, 45, 31, 37, 46, 12, 14, 15, 19, 32, 50, 47, 49, 51, 52, 48, 24, 26, 27, 33, 40, 41 by virtue of the order of a temporary injunction vide HCMA No. 855 of 2022 arising out of H. C. C. S No. 246 of 2022 should be vacated, removed/lifted. The remedies available to the parties.

7]. I will resolve the issues in the order the applicants submitted on them.

$(vi)$

1. Whether the respondents lack the locus standi to institute and maintain H. C. C. S No. 246 of 2022 against the 4th to 17th Applicants.

## **Submissions by Counsel for the Applicants.**

8]. Counsel for the applicants submitted that Section 192 of the Succession Act (as amended) provides that upon the grant of Letters of Administration, the Administrator is the one vested with the authority over the estate.

9]. Counsel submitted that no person other than the administrators of such an estate can purport to represent or deal with the estate of the deceased

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person until letters of administration have been recalled or revoked. The applicants cited the case of Anecho Haruna Musa versus Twalib Noah and others H. C. C. S No. 09 of 2018 to buttress their submissions.

10]. The applicants contended that in the instant matter there are two distinctive estates. The first estate of the late Petero Tebukya, the former registered proprietor of the suit property and that of the late J. C. Makayu. That in their suit the respondents claim from two estates.

11. Counsel for the applicants submitted that in paragraph one of their plaint, the respondents claim to have brought the suit as children of the late Charles Makayu who was an executor of the estate of the late Petero Tebukya Luyimbazi and yet in paragraph 7 they claim to be the beneficiaries in both estates.

12]. Counsel for the applicants further submitted that in paragraph (e) of the plaint, the respondents seek for a declaration that the suit land comprised in Mawokota Block 54 Plot 2 together with all the subdivided plots belongs to and form part of the estate of the late Joseph Charles Makayu.

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13]. The applicants contended that this was the same capacity in which the 1st respondent initially filed H. C. C. S No. 07 of 2015 where he stated in paragraph 1 that he brought the suit as a son of the late Charles Makayu who was the administrator of the estate of the late Petero Tebukya Luyimbazi.

14]. The applicants submitted that the court dismissed the 1st respondent's suit vide H. C. C. S No. 7 of 2015 for want of locus standi to institute the suit. That the finding of the court on the issue of locus standi has never been set aside or successfully appealed by the respondents and hence the respondents cannot gain locus standi by filing a new suit.

15]. The applicants submitted that they are holders of letters of administration in respect of the estate of the late Petero Tebukya vide Administration Cause No. 1445 of 2008 and hence in that capacity the law vests in them powers to administer the estate entrusted to them on behalf of the beneficiaries of the same estate and that the respondents cannot therefore maintain any action in respect of any property vested in the $1^{st}$ to $3^{rd}$ applicants as administrators of the estate of the late Petero

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Tebukya. That this too was confirmed by this court vide H. C. C. S No. 07 of 2015 filed by the $1^{st}$ respondent against the $1^{st}$ to $3^{rd}$ applicants therein.

16]. The applicants contended that the said position has not changed and in an abuse of court process and hoping for a contradicting decision, the $1st$ respondent joined hands with the $2nd$ respondent who was his attorney in the said determined suit and his sister and filed the same suit in the same capacity seeking for the same reliefs and orders.

17]. The applicants contended that the respondents have no locus to challenge the grant of letters of administration in an estate where their father was merely a beneficiary and that the beneficiaries of the estate of the late Petero Tebukya have never challenged the said grant and are satisfied with the administration of the estate.

18]. The applicants contended that the respondents have no locus to challenge the transactions concluded by the administrators of the estate of the late Tebukya and that the applicants have the sole powers to deal with the estate property on behalf of the beneficiaries and hence the respondents cannot maintain a suit while the grant still subsists.

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19]. On whether the respondents have the locus to sue for recovery of land registered in the names of the $4^{th}$ to $17^{th}$ respondents, the applicants submitted that the matter was already determined by this court vide HCMA No. 02 of 2022 where the court held that the respondents herein had no locus to challenge the proprietorship of the $4^{th}$ to $17^{th}$ applicants herein.

201. That the court also held that it was incapable in law of maintaining an action for recovery of the land registered in the names of the $4^{th}$ to $17^{th}$ applicants and that the only right of action lies in seeking accountability from the administrators.

21]. The applicants further submitted that the respondent's attack on the manner in which the $1^{st}$ and $3^{rd}$ applicants obtained a grant of letters of administration does not confer any locus upon them to sue the 4th to 17th applicants or challenge their titles. That the $4^{th}$ to $17^{th}$ applicants are not administrators of the estate of the late Petero Tebukya Luyimbazi and they are not concerned with and aren't privy to the management of the estate

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as they acquired title and are registered proprietors in possession of the land.

22]. The applicants further submitted that the $4^{th}$ to the 17th applicants duly acquired their respective plots of land from the registered proprietors who had been registered by virtue of holding letters of administration and hence are bonafide purchasers of their respective pieces of land for value without notice of any fraud or illegalities associated with the obtaining of such a grant. The applicants cited the case of *Nanteza Mariam and others* versus Nasani Rwamunono and another C. A. C. A No. 28 of 2013 to buttress their submissions.

## Submissions by the respondents on the issue of Locus Standi.

23]. The respondents submitted that H. C. C. S No. 246 of 2022 shows that the respondents sued as beneficiaries of the said respective estates and thus as a matter of law and principle, a beneficiary has standing to sue in his or her own right provided the interests which such a beneficiary seeks to protect are germane to the estate.

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24]. The respondents submitted that the suit land has grossly and fraudulently been subdivided and among others sold and or transferred and acquired by some of the applicants who are not beneficiaries of the said estate.

25]. The respondents contended that a beneficiary has a right to trace estate property in the hands of third parties who are not bonafide purchasers for value without notice. The respondents cited the case of Saul Kisirisimbo Remanda versus Emmy Tumwine and 6 others -S. C. C. A No. 19 of 2018 to buttress their submissions.

26]. The respondents further contended that what court ought to investigate is whether some of the applicants who have since acquired the said subject estate acquired the same lawfully as bonafide purchasers. The respondents cited the case of *Dima Dominic Poro versus Inyani Godfrey* and another H. C. C. A No. 0017 of 2016 (Arua High Court) to buttress their submissions.

27. The respondents contended that they are sons and daughters to the late Joseph Charles Makayu and grandsons and granddaughters to the late

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Petero Tebukya Luyimbazi and this rightly puts them in the position to be vested with the locus standi to trace their beneficial interests in the said estate.

28]. The respondents further contended that they have the right to file and maintain H. C. C. S No. 246 of 2022 challenging the illegalities and fraud committed by the 1st to 3rd applicants when they acquired a $2^{nd}$ grant of letters of administration in respect to the same estate of Petero Tebukya Luyimbazi and which had fully been administered and distributed by the respondent's late father J. C Makayu.

29]. The respondents contended that the $2^{nd}$ grant was illegally and fraudulently used to transfer estate land to the $4^{th}$ to $17^{th}$ applicants and by the 1st to 3rd applicants acquiring a $2^{nd}$ grant it affected the respondents' interests in the estate of their late father J. C Makayu as the 1st to 3rd applicants transferred land constituting Makayu's estate to themselves and to the rest of the applicants.

30]. The respondents submitted that they brought H. C. C. S No. 246 of 2022 to protect their interests in the estate and preserve the estate of their

17 | Page $\mathcal{L}$ $\mathcal{L}$ $\mathcal{L}$ late father Joseph Charles Makayu all arising from the estate of the late Petero Tebukya Luyimbazi which apparently has two grants. The respondents contended that paragraphs 10(i) and (j) plus paragraph 11 of the plaint are supported by documentary evidence and the plaint shows that their late father Joseph Charles Makayu under the Petero Tebukya Luyimbazi Will acquired 191.6 acres of land comprised in Mailo **Register Mawokota Block 54 Parent Plot 2.**

31]. The respondents further submitted that the applicants led by the 1st, $2^{nd}$ , $3^{rd}$ , $5^{th}$ and $11^{th}$ applicants decided to transfer Plot 2 into their names and those of the other applicants as shown by the relevant copies of the search statements.

32]. The respondents contended that the reasoning behind Justice Murangira's ruling vide H. C. C. S No. 07 of 2015 was because in that suit, the $1st$ respondent as a plaintiff did not expressly state the capacity he commenced the suit. That even then, absence of a prior grant in respect of Makayu Charles's estate would not debar the maintenance of a suit by the respondents whose purpose is to claim, preserve and protect the estate of

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the deceased which estate is evidently in the hands of third parties and not themselves.

33]. The respondents further submitted that the $1^{st}$ to $3^{rd}$ applicants agree that the respondent's father is the late Charles Makayu and the son of the late Petero Tebukya and that they also agree that the suit land has been transferred to some of the applicants who are not beneficiaries of the estate of the late Petero Makayu or Charles Makayu and have used the letters of administration to do that despite existence of prior Letters of Probate.

34]. The respondents contended that the applicants have not shown that the subject land was partly transferred from the estate of the late Charles Makayu from which the respondents are entitled.

351. The respondents contended that this leaves them as beneficiaries threatened in recovering their rightful beneficial interest in the suit land and that this gives them locus in the said estate to recover what rightfully belongs to them as beneficiaries of the said estate.

36]. The respondents further submitted that they are claiming to preserve the estate from which their father's interest measuring 191 acres was

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distributed by the $1^{st}$ to $3^{rd}$ applicants to the rest of the applicants using the illegal second grant. The respondents further submitted that the 1st to 3rd applicants having illegally and fraudulently acquired their letters of administration, they could not pass legal titles to the $4^{th}$ to $17^{th}$ applicants. 37]. The respondents contended that the said transfers were done during the pendency of H. C. C. S No. 07 of 2015 which suit was challenging the $1st$ and $3rd$ applicant's illegal grant. The respondents further submitted that the 4th to 10th applicants were grandchildren of the late Petero Tebukya Luimbazi and that these grandchildren would have gotten their shares from their respective parents but not directly from the estate of the late Petero Tebukya Luyimbazi which estate had long been distributed and an inventory filed.

38]. The respondents contended that the $4^{th}$ to $10^{th}$ applicants being the sons and daughters of Martin Louis Tyaba (a son to Petero Tebukya Luyimbazi) would have gotten their shares or would have shared the 50 acres which their late father Martin Louis Tyaba was entitled to as per the Will of the late Petero Tebukya Luyimbazi.

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39]. The respondents contended that for the 4th applicant Kiggundu Edward William to own over 50 acres and for the 5th applicant Basil Tyaba Kawuki to own 90 acres much more than what their father owned amounted to fraud.

40]. The respondents further contended that the extra acreage of land possessed by the $4^{th}$ to $10^{th}$ applicants was illegally gotten from the share of the respondents' father together with the shares of the other beneficiaries of the Will. That the 4th to 10th applicants acquired their fraudulent interests from a one Makanga Jumba who had never been an administrator of the estate of the late Petero Tebukya Luyimbazi.

41]. The respondents submitted that they are not claiming for the entire estate but they are claiming their father's interest measuring 191 acres, which the $1^{st}$ to $3^{rd}$ applicants distributed to the rest of the applicants using the illegal fraudulent second grant. That the 11th to 17th applicants were outsiders and not in any way related to the Late Luyimbazi but among the parties who fraudulently got registered on the parts of the suit land during the pendency of the suit challenging the $1^{st}$ to $3^{rd}$ applicants' letters of

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administration and that the particulars of fraud and illegalities against the said applicants are clearly stated in paragraphs $13(i) - (cc)$ of the plaint.

42]. The respondents further submitted that the fraud against the 11th to $17th$ applicants is clearly stated in the plaint and the applicants all had knowledge of the respondent's claims through the caveats lodged and even the pending court case where the $11th$ applicant was the advocate in personal conduct but she also ended up taking over the land which was a subject of a court case. The respondents cited the case of Elizabeth Kobusinge versus Annet Zimbiha C. A. C. A No. 69 of 2019 to buttress their submissions.

43]. The respondents contended that the court ought to resolve the issue of illegality and fraud. The respondents maintained that they have the locus standi to institute this case.

## Submissions in rejoinder by the Applicants.

44]. In rejoinder the applicants submitted that the tenets that underpin the principle of locus standi are that court's time should not be wasted on hypothetical and/or abstract issues or at the instance of busy bodies who

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have no genuine causes. That locus standi goes to the root of the matter at hand. The applicants cited the case of *Crane Bank Ltd (in receivership)* versus Sudhir Ruparelia and Meera Investments Ltd C. A. C. A No. 252 of 2019 to buttress their submissions.

45]. The applicants further submitted in rejoinder that it is imperative upon a court before which a suit has been filed or a court hearing the matter to ensure that the plaintiff has locus standi. The applicants contended that if at any stage a preliminary point of law touching locus is raised, the court may deal with and determine it first before the matter proceeds.

46]. The applicants further contended that in H. C. C. S No. 07 of 2015 during the determination of the issue of locus standi, the court adjudicated the rights of the parties thereby determining that the $1^{st}$ to $3^{rd}$ applicants were the lawful administrators of the estate of the late Petero Tebukya Luyimbazi and as such the said determination resulted into a judgment from which a decree resulted.

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That the only remedy was for the aggrieved party to appeal the judgment/ruling of the court.

47]. The applicants contended that H. C. C. S No. 7 of 2015 having been dismissed for want of locus standi, the respondent couldn't file a fresh suit and the only remedy was to appeal against the dismissal to the Court of Appeal.

48]. The applicants further submitted that filing a new suit and adding new parties while raising similar claims and seeking the same remedies did not eliminate the fact that the matters had already been adjudicated by court and prayed that the court dismisses the suit.

## Decision of Court on the issue locus standi.

49]. Locus standi is defined in the Black's Law Dictionary, 9th Edition at page 1026 as "the right to bring an action or to be heard in a given forum". By locus standi the court interrogates the legal capacity of a person which enables him or her to invoke the jurisdiction of court in order to be granted the remedies sought.

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50]. Locus standi is intrinsically related with the cause of action in any given suit to enable a party move court. See *Fakrudin Vallibhai Kapasi* and another versus Kampala District Land Board and another - $H. C. C. S$ No. 570 of 2015 (Land Division).

51]. In Civil Suit No. 07 of 2015 the 1st respondent sued the 1st, 2nd and applicants herein and a one Manjeri Ndagire Luyimbazi the $3rd$ administrators of the estate of the late Petero Tebukya Luyimbazi seeking for orders that; -

- Letters of administration granted to the said applicants on the $(i)$ 29th day of January 2010 in respect of the estate of the late Petero Tebukya Luyimbazi be revoked. - A declaration that the said Petero Tebukya Luyimbazi died $(ii)$ testate and that his estate was distributed to the beneficiaries according to his Will. - A permanent injunction restraining the defendants from $(iii)$ exercising the authority under the grant vide H. C. C. S No. 33 of 2009 and Administration Cause No. 1445 of 2008.

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- $(iv)$ An order directing all the beneficiaries under the Will of the late Petero Tebukya Luyimbazi who did not take up their share in the estate to do so. - $(v)$ General damages and costs of the suit.

52]. During the course of hearing the said case, the defendants in the said case (some of the applicants herein) raised a preliminary objection to the effect that the plaintiff ( $1^{st}$ respondent herein) lacked the locus standi to institute the suit or/and to maintain the suit against the defendants ( $1^{st}$ to $3^{rd}$ applicants herein). The trial Judge held then that the plaintiff had no locus standi to institute the said case against the defendants who were the lawful administrators of the estate of the late Petero Tebukya Luyimbazi. The case was then dismissed with costs to the defendants.

53]. The $1^{st}$ respondent who was the plaintiff in C. S No. 07 of 2015 instituted another case with the respondents in this application against the applicants vide H. C. C. S No. 246 of 2022.

26 | Page $\mathcal{L}$ The suit seeks to protect and preserve the properties in the estate of the late Joseph Charles Makayu and the estate of the late Petero Tebukya Luyimbazi in which they claim to be beneficiaries.

54]. The respondents also seek in the said case for several declarations and orders against the applicants inter alia for the revocation of the grant of letters of administration in respect of the estate of the late Petero Tebukya Luyimbazi granted to the 1st to 3rd applicants and for the cancellation of all the entries entered on the register of former Mawokota Block 54 Plot 2 and all the subdivisions in favour of the 1st to 17th applicants and all certificates of title registered in the names of or obtained by the applicants. The applicants filed their respective written statements of defence denying the allegations in the plaint.

55]. A similar matter was instituted by the $1^{st}$ respondent against the $1^{st}$ to 3rd applicants vide H. C. C. S No. 07 of 2015. In the said case the 1st respondent in this application who was the plaintiff in the said case was seeking for orders for revocation of letters of administration granted to the defendants who are the $1^{st}$ to $3^{rd}$ applicants in this application in

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respect of the estate of the late Petero Tebukya Luyimbazi, a declaration that the said Petero Luyimbazi died testate and that his estate was distributed to the beneficiaries according to his Will,a permanent injunction restraining the defendants from exercising their authority under the grant vide H. C. C. S No. 33 of 2009 and Administration Cause No. 1445 of 2008.

56]. During the course of hearing the said case, a preliminary objection was raised by the defendants to the effect that the plaintiff who is the 1st respondent in this application had no locus standi to institute the case. In his judgment the Judge upheld the preliminary objection and held that the 1st respondent who was the plaintiff then had no locus standi to institute the said case and further held that the defendants who are the $1^{st}$ to $3^{rd}$ applicants in this application were the lawful administrators of the estate of the late Petero Tebukya Luyimbazi. The suit was dismissed with costs to the defendants.

57. The said finding of the court on the issue of locus standi has never been set aside or appealed against. What has now changed is that the

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1st respondent has added two parties to the suit vide H. C. C. S No. 246 of 2022 against the applicants with the same cause of action only that he has added other applicants who received their titles from the $1st$ to $3rd$ applicants in their capacity as administrators of the estate of the late Petero Tebukya Luyimbazi.

58]. The issue of whether the respondents have a locus standi to sue for the recovery of land registered in the names of the 4th to 17th respondents was also determined in HCMA No. 02 of 2022 arising from C. S No. 007 of 2015 involving the 1st respondent and the said applicants where the court held that the $1^{st}$ respondent had no cause of action against the said applicants and that the only right course of action lied in seeking accountability from the administrators. That same issue was therefore also resolved in the said application and hence cannot be reintroduced in another case.

591. If the $1^{st}$ respondent was dissatisfied with the said decision, he should have either appealed against it or applied for a review.

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The issue of locus standi was therefore already resolved and it follows that H. C. C. S No. 246 of 2022 is res judicata and cannot be reincarnated.

60]. Section 7 of the Civil Procedure Act provides that "No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a *former suit between the same parties, or between parties under whom* they or any of them claim, litigating under the same title, in a court competent to try the subsequent suit or the suit in which the issue has been subsequently raised, and has been heard and finally decided by that court."

61. The rationale for the doctrine of res judicata is to bring finality to litigation and protect parties from defending suits that have already been determined by a competent court. The defence of res judicata is a bar to a plaintiff whose claim was previously adjudicated upon by a court of competent jurisdiction in a suit with the same defendant or with a person through whom the defendant claims. See Father

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Narsensio Begumisa and others versus Eric Tibebaga – S. C. C. A No. 17 of 2002.

62]. It was held in the case of Dickson Okumu and others versus Uganda Electricity Transmission Company Ltd and others – S. C. C. A No. 18 of 2020 that res-judicata applies where; -

- There exists a previous suit in which the matter was in issue; $(i)$ - That a competent court heard the matter in issue; $(ii)$ - That the matter in issue was heard and finally decided in the (iii) former suit; - That the issue has been raised once again in a fresh suit. $(iv)$ - That the parties were the same or litigation under the same $(v)$ title.

63]. The court in H. C. C. S No. 07 of 2015 filed by the 1st respondent against the $1^{st}$ and $3^{rd}$ applicants held that the $1^{st}$ respondent who was the plaintiff in the said suit lacked the locus standi to sustain a suit against the lawful administrators of the estate of the late Petero

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Tebukya Luyimbazi. This is the same remedy the respondents are seeking in the current suit.

64]. The question of locus standi can only lead to a dismissal of the suit on the ground that the party bringing the suit has no right to do so. That conclusively determines the rights of the parties and would result in a decree.

65]. The only remedy in the circumstances to a dissatisfied party of that dismissal would either be to apply for a review or appeal against the said decision. I agree with the decision in G. W Wanendeya versus Stanbic Bank (U) Ltd - H. C. C. S No. 0486 of 2005 (Commercial **Division**) where it was held that such a decision disposed of the suit wholly and amounted to a decree. It was further held that in such circumstances it was sufficient to raise the bar of res judicata as it has wholly disposed of the matters in issue in that suit. The option for the plaintiff at that stage if dissatisfied would be to appeal against the decision and not file another action.

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It would be for the appellate court to consider whether the trial court was right to dispose of all issues in that suit without providing the parties an opportunity to be heard on all the issues that were in issue in that former suit.

66]. In my view this resolves the rest of the issues that were raised and I will uphold all the preliminary points of law raised in this case.

Civil Suit No. 246 of 2022 involving the parties herein will be dismissed with costs for the plaintiffs lack of the locus standi to institute it and for being res judicata.

Hon. Justice John Eudes Keitirima.

$27/04/2024$