Masengere (Administrator of the Estate of the late Yozefat K. Lubega & 5 Others v Kinene & 3 Others (Miscellaneous Application 2494 of 2024) [2025] UGHCLD 9 (14 January 2025) | Locus Standi | Esheria

Masengere (Administrator of the Estate of the late Yozefat K. Lubega & 5 Others v Kinene & 3 Others (Miscellaneous Application 2494 of 2024) [2025] UGHCLD 9 (14 January 2025)

Full Case Text

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LAND DIVISION] MISC. APPLICATION NO. 2494 OF 2024 (ALL ARISING FROM CIVIL SUIT NO.305 OF 2024)**

- **1. MASENGERE CHARLES LWANGA (Administrator of the Estate of the late Yozefat K. Lubega)** - **2. LUBEGA FRANCIS** - **3. KAMOGA MICHEAL :::::::::::::::::::::::::::::::::::: APPLICANTS (beneficiaries of the late Yozefu K. Lubega's Estate)** - **4. KAKEETO GODFREY (Administrator of Estate of the Late Festus Lule)** - **5. KALANZI NORAH (Administrator of the Estate of the late G. W Kalanzi)** - **6. KYAZZE DAVIS (Administrator of the Estate of the Late Fenekansi Wasswa)**

#### **VERSUS**

- **1. KINENE MUBARAK** - **2. OFUMBI DAN :::::::::::::::::::::::::::::::: RESPONDENTS** - **3. ISAAC MULINDWA** - **4. MELLES AFEWORKI**

#### **BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA**

**RULING.**

## *Introduction;*

- 1. The applicants brought this application by way of notice of motion under Section 98 of the civil procedure act, Section 37 and 43(2) of the judicature act and order 52 rules 1 and 3 of the civil procedure rules for orders that; - i) An order directing the 1st 3rd respondents to submit to this court the distribution scheme to shareholders of Lukuli coffee factory of the proceeds of the sale of the property comprised under Kyadondo Block 261 Plot 152 at Lukuli. - ii) An order directing the 1st 3rd respondents to account for the partial consideration of Ugx 800,000,000(eight hundred million Ugandan shillings) that was received from the 4th respondent as proceeds of sale of the land comprised in Kyadondo block 261 plot 152 at lukuli - iii) An order directing the 1st to the 3rd respondents to pay the applicants all the monies due to them or to the estates that they respectively belong to or administer. - iv) Without prejudice to the foregoing, an order directing the 4th respondent to pay the balance on the consideration of ugx

234,000,000 (two hundred thirty-four million shillings) to the applicants and not in the 1st and 2nd respondents joint personal bank account.

v) Costs of the application be met by the 1st to the 3rd respondents.

#### *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the 1st applicant on behalf of other applicants which briefly states as follows; - i) That I am the administrator of the estate of the late Yozefat K. Lubega who died in 1986 and was among the founding shareholders of the company Lukuli coffee factory limited with the shareholding of 900 shares due to the estate. - ii) That the 2nd and 3rd applicants are my biological brothers thus co-beneficiaries of the estate of the late Y. K Lubega whereas the 4th,5th and 6th applicants are administrators of the late Festus Lule G. W Kalanzi and Fenekansi Wasswa respectively who were all shareholders in Lukuli coffee factory limited.

- iii) That I knew the company owned land comprised under Kyadondo Block 261 Plot 152 at Lukuli and the same was subject to a suit filed in court to reclaim possession from one of the shareholders (3rd respondent). - iv) That I received information from the secretary (4TH applicant) that the lawyer had advised that a settlement was the viable option since even the defendant (3rd respondent) was open to it which advise I was okay with after all for a long time we were not obtaining any benefit. - v) That I later learnt that a settlement had been reached to have land sold off and the proceeds be distributed to the shareholders in the company following the number of shares each person or the estate held in the company and a consent judgement had been executed on the 10th of July 2024. - vi) That I and my brothers were surprised to later learn that the suit property had been sold to the 4th respondent and upon contacting the company board chairperson which failed in vain and later contacted the secretary and I was informed that the beneficiaries of the late Y. K Lubega were to receive

only Ughs 10,000,000 in the meantime until some issues are sorted out.

- vii) That it was wrong and professionally unbecoming of the 1st and 2nd respondents to open up a joint personal account and make the same the recipient account of the proceeds of the sale of the property which is neither theirs as individuals nor did they have any shares in the company. - viii) That to date neither have the 1st and 3rd respondents paid out to us our entitlements as per the shareholding our respective parents held in the company as stipulated in the consent judgement nor any accountability been shown by the recipients for the money so far received and even a demand notice that was served on both 1st and 2nd respondents as recipients of the money. - ix) That we as the applicants are beneficiaries of the respective estates are entitled to receive part of the proceeds of the sale.

#### *Respondent's evidence;*

3. The application is responded to by affidavits in reply deponed by the 1st – 3rd respondents which briefly states as follows;

- i) That the application is premature, defective, lifeless, abuse of court process, purely academic and total moot and it is unfounded law. - ii) The application discloses no cause of action against the respondents, the applicants herein ought to have sued Lukuli factory limited but not the respondents. - iii) That the main suit from which the impugned application arises, the applicants herein were not parties, they are not seeking to set a side or review the said consent and the applicants have not shown how they are aggrieved with the outcomes of the orders from the main suit. - iv) That no transmission of shares has ever been effected in favor of the applicants and that the applicants have never applied to have the shares transmitted to them. - v) That the applicants have never participated in the management of the said company and they have also never participated in the conduct of the main suit.

### *Representation;*

4. The applicants were represented by Counsel Andrew Mugumya and Counsel Mukama Jonathan of M/S Aogon & Co. Advocates whereas the 1st respondent was represented by Counsel Muhwezi James Rwakojjo of Alma Associated advocates who also held brief for the 2nd respondent, Counsel Bwesigye Enock of M/S Factum Associated advocates represented the 3rd respondent, CounselMartin Mbanza Kalemera for the 4th respondent. The applicants,1st - 3rd respondents filed their respective affidavits, the applicants, 1st and 3rd respondents filed written submissions which I have considered in the determination of this application.

## *Issues for determination;*

*Whether the application is properly brought before this court?*

*Whether the applicants have the locus standi to bring the instant application?*

*What remedies are available to the parties?*

## *Resolution and determination of the issues;*

Issues 1 and 2; - 5. Counsel for the applicants submitted that locus standi is defined in the black's law dictionary to mean the right to bring an action or to be heard in a given forum. It's not disputed by the respondents that lukuli coffee factory limited was incorporated with a number of shareholders and among the shareholders some have since died to include, the late Yozefat K. Lubega father of the 1st – 3rd applicants, the late Festus Lule father of 4th applicant, late George William Kalanzii husband of the 5th applicant and late Fenekansi Wasswa father of the 6th applicant. - 6. Counsel for the applicants further submitted that section 21 of the succession act provides that all property of an intestate estate devolves upon the personal representatives of the deceased and the same principle was elucidated upon by court in the decision of

**Anecho Haruna Musa vs Twalib Noah and 2 ors** before Justice Stephen Mubiru.

7. Counsel for the 1st and 3rd respondents submitted that the instant application is premature, defective and an abuse of court process since it does not disclose a cause of action against the 1st and 3rd respondents, the instant application arises from a consent judgement vide HCCS No. 305 of 2024 between lukuli coffee factory limited and Isaac Mulindwa where the applicants are not parties.

- 8. Counsel for the 1st and 3rd respondents submitted that the applicants are seeking to enforce a consent judgement where they were not parties and this can be discerned from the prayers they are seeking for from this court in the instant application. Counsel relied on the decision in **Olara Denis Micheal vs Omony Stephen vide MA No. 01 of 2022** where Justice George Okello held that a consent judgement, decree or order has contractual and binding effect and the legal consequences of recording and passing a decree under order 25 rule 6. - 9. It is the submission of counsel for the 1st and 3rd respondents that the applicants have not adduced evidence to prove to this honorable that their parents were shareholders in lukuli coffee factory limited or articles and memorandum of association of the said company authorizing transmission of shares to the beneficiaries of the deceased member.

#### *Analysis by court;*

10. I take note of the submissions by all the parties and authorities relied upon, the nature of the instant application is that it arises from Civil Suit No. 305 of 2024 Lukuli coffee factory limited vs Isaac Mulindwa and Mohammed Mulindwa which suit was settled through a consent judgement by all the parties to the suit and the applicants were never party to the said consent.

11. Further the prayers upon which the instant application is brought are stated as follows; *An order directing the 1st – 3rd respondents to submit to this court the distribution scheme to shareholders of lukuli coffee factory of the proceeds of the sale of the property comprised under Kyadondo Block 261 Plot 152 at lukuli, An order directing the 1st – 3rd respondents to account for the partial consideration of Ugx 800,000,000(eight hundred million Ugandan shillings) that was received from the 4th respondent as proceeds of sale of the land comprised in Kyadondo Block 261 Plot 152 at Lukuli, An order directing the 1st to the 3rd respondents to pay the applicants all the monies due to them or to the estates that they respectively belong to or administer, Without prejudice to the foregoing, an order directing the 4th respondent to pay the balance on the consideration of Ugx 234,000,000 (Two hundred thirty-four million shillings) to*

## *the applicants and not in the 1st and 2nd respondents joint personal bank account.*

- 12. My understanding of the said prayers leads me to two factors which are; that the applicants are either seeking for the enforcement of the terms of the consent judgement in the main suit or they seek to drag this court into the internal management of the affairs of the company. - **13.** A consent judgement by its nature has a contractual and binding effect as stated in the decision of **Betuco(u)ltd and Another vs Barclays Bank and ors HCMA No.243 of 2009.** - **14.** From the reading of the prayers in the instant application, it appears to me that the applicants intend to enforce terms of a consent judgement which they were not party to. The law on consent judgments is strict in nature as the law governing contracts. - **15.** One would ask him or herself why a non-party to the consent judgement would bring an action enforcing the terms of the said consent, the answer lies in the fact that the applicants desire to benefit from a contract which they were not party to in the first place.

- **16.** The second factor is that, the prayers in the instant application seek to drag this court into the internal management of the affairs of the company. The applicants' locus standi in the instant application is based on a claim that they are beneficiaries and administrators of the estate of some of the directors or shareholders in lukuli coffee factory limited. - **17.** There are many factors to consider as to whether the applicants hold valid interest in lukuli coffee factory limited to include; whether there was transmission of shares to the beneficiaries of the deceased members, whether changes were made on the register of members of lukuli coffee factory limited in order to cloth the applicants with the necessary locus standi to bring this application and many others. - **18.** The applicants did not adduce any evidence of the same in this court and even if they had adduced the said evidence that they had complied with the provisions of the company's act, the instant action ought to have been against the company itself but not the respondents herein and their remedies would lie under the companies act before the right forum.

- **19.** I am the view that the prayers sought in the instant application are ones that call for the applicants to benefit from a consent judgement which they were not party to and they seek to move this court into the internal management of the affairs of a company. - **20.** Therefore, it is to the finding of this court that the instant application is one which is not properly brought before this court and the same is hereby dismissed with no orders as to costs.

#### **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

**Ag. JUDGE.**

### **14th/01/2025**

# **Delieverd electronically via ECCMIS on the 14th day of January 2025.**