Matovu and Another v Lubega (Miscellaneous Application 448 of 2022) [2023] UGHCFD 146 (2 August 2023)

## **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA FAMILY DIVISION MISCELLANEOUS APPLICATION NO. 448 OF 2022 (ARISING FROM CIVIL SUIT NO. 029 OF 2022)**

#### **1. FRED MATOVU**

## **2. MULINDWA ENOCK::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS**

#### **VERSUS**

## **EDITH MARY LUBEGA ::::::::::::::::::::::::::::::::::::::::: RESPONDENT (ADMINISTRATOR OF THE ESTATE OF THE LATE KERESPO LUBEGA)**

#### **RULING BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

#### **1. Introduction**

- 1.1. This Ruling relates an application brought by way of Chamber Summons under the provisions of Section 33 of the Judicature Act, Cap. 13, Section 98 of the Civil Procedure Act, Cap. 71 and Order 11 rules 1 (a) (b) and 2 of the Civil Procedure Rules, Statutory Instrument No. 71-1 seeking orders that; HCCS No. 029 of 2022 Fred Matovu and Mulindwa Enock Versus Edith Mary Lubega and HCCS No. 059 of 2018 Fred Matovu, Mulindwa Enock, Bukenya and Edith Mary Lubega be consolidated as one suit and costs for the application be provided for. - 2.0. The grounds of the application are set out briefly in the Chamber Summons but explicated in the 2nd applicant's affidavit in support as follows that; both HCCS No. 029 of 2022 Fred Matovu & Another Versus Edith Mary Lubega and HCCS No. 059 of 2018 Fred Matovu & 3 Others Versus Nabukenya Ssebulime & 2 others are pending in the same court. HCCS No. 029 of 2022 and HCCS No. 059 of 2018 involve the same of similar questions of law of facts. If the consolidation is not


done, the Honourable Court is bound to give two conflicting decisions in respect of the same subject matter. The Consolidation is intended to avoid multiplicity of proceedings over the same subject matter. It is fair, just and equitable that this court grants this application.

# **3.0. The Respondent's case.**

- 3.1 The Applicants/ Plaintiffs in HCCS No. 029 of 2022, jointly with their siblings, Bukenya Geoffrey and Ngabo Grace filed Civil Suit No.59 of 2018 on 12th March 2018, against the Defendant, their mother, jointly with two of her daughters namely; Nabukenya Sebulime and Annet Nakachwa Muwonge. - 3.2 Upon closure of pleadings, Scheduling, filing Witness Statements and fixing HCCS No. 59 of 2018 for hearing, the Plaintiffs on 4th September, 2020 applied vide Miscellaneous Application No.490 of 2020 to amend their Plaint on grounds that they had just discovered that the 3rd Defendant (their mother) was the Administrator of the Estate of their father, the late Kerespo Lubega. They also sought to strike off the 3rd and 4th Plaintiffs as well as the 1st and 2nd Defendants. - **3.3** The Defendants in HCCS No. 59 of 2018 contested the Application for Amendment and striking out the parties mainly on grounds that it would compromise their Defence and Counter-Claim and that withdrawal of any claim had to be with costs. Court agreed with the Respondent/ Defendants, and by Ruling delivered by Hon. Dr. Justice Joseph Murangira (Rtd) on 28th September, 2020 dismissed the Application for Amendment, but ruled that the Plaintiffs in HCCS No. 59/2018 were at liberty and were allowed to withdraw the Suit as against the 1st and 2nd Defendant; as well as withdraw the 3rd and 4th Plaintiffs' case as against all the Defendants, but with costs. The Plaintiffs in HCCS No. 59 of 2018 did not file an Appeal against the Ruling.


- 3.4. On 21st December, 2020 the Respondents were served with Summons to file a Defense in HCCS No. 304/2020, filed in this Honourable Court, by the 1st and 2nd Plaintiffs in HCCS No. 59/2018, against Mrs. Edith Mary Lubega (their mother) and 3rd Defendant in HCCS No. 59 of 2018, which is still ongoing, before payment of the costs. Both HCCS No. 59 of 2018 and HCCS 304/2020 revolve around the Estate of the late Kerespo Lubega. - 3.5. On 11th January, 2021, the Respondent filed a Written Statement of Defense in HCCS No. 304/2020 wherein she among others expressed her intention to raise a Preliminary Objection that HCCS No. 304/2020 was filed as an abuse of court process. On 22nd April, 2021 the Respondents were served with a Hearing Notice in HCCS No. 304/2020, scheduled for 3rd May, 2021 at which they raised two a Preliminary Objection, that is:

*"That HCCS No. 304/2020 abated for failure to take out Summons for Directions within 28 days from the date of the last Reply, as required by Order XIA rule 1(2) of the Civil Procedure (Amendment) Rules, 2019;* and indeed the Plaintiffs had not taken out summons for Directions pursuant to **Order XIA rule 1(2)** of the **Civil Procedure (Amendment) Rules, 2019;** and the Suit accordingly bated.

3.6. On 24th March, 2022, the Applicants filed Miscellaneous Application No. 240 of 2022(Arising from HCCS No. 029 of 2022) for consolidation of same Civil Suits as in the instant Application and cause listed it for hearing the following day on 25th March, 2022 in the morning at 9am. The Respondents addressed court on the several abuse of court process by the Applicants and Hon. Dr. Justice Joseph Murangira ruled that Summons for Directions in that case were fixed for 8th June, 2022 and that HCCS No.029 of 2022 was not ready to be consolidated as Summons for Directions had not been heard up to present. The Applicants through their Counsel on that note withdrew the said Application.


3.7. On 23rd May 2022, the Applicants filed the instant Application seeking to consolidate HCCS No.029 OF 2022 and HCCS No. 59 of 2018 and time for service expired and served it to the Counsel for the Respondent on 5th April 2023 out of time without courts leave. Despite, completion of filing of all relevant pleadings in Civil Suit No. 029 of 2022, summons for directions have never been taken out.

## **4.0. Representation and Hearing**

4.1. The Applicants are represented by Mr. Warren Byamukama holding brief for Ms. Racheal Nabukenya from Jingo, Sempijja & Co. Advocates and the Respondent are represented by Mr. Dathan Ariho Katebire from Tamale & Co. Advocates. The Parties agreed to dispose of the Application by filing written submissions.

## **5.0. Issues for Determination by this Court**

**1. Whether the application establishes sufficient grounds for consolidation of HCCS No. 029 of 2022 and HCCS No. 059 of 2018.**

# **5.1. Preliminary Objections**

The Respondents in their written submissions in reply raised and argued the following Preliminary Objections, that;-

- i. The Chamber Summons expired and were served out of time without Court's leave. - ii. HCCS No.029 of 2022 whereupon this Application arises offends the "*Lis Pendens Rule.*" - 5.1.1. I have perused the court record and at the time of writing this decision I have not found any reply from the Applicants in regard to the submissions made by the Respondents. They either admit them as stated and filed or they were not served to enable them file their response. This court has


taken keen consideration of the submissions on the Preliminary Objection but will determine this application on the basis of the issue raised.

## **5.2. Submission by counsel in resolution of the issue raised.**

It was submitted by the Applicants that the power of the Courts to make orders for consolidation as sought stem from the provisions of Order 11 Rule 1(a)(b) and 2 of the Civil Procedure Rules, SI-71-1, which mandates the Honourable Court to consider consolidation of suits with a view of furthering expeditious disposal and cited the case **of Iddi Ssengooba Versus Peter Sozzi & 4 Others Misc. Application No. 708 of 2019 arising from HCCS No. 498 of 2019 and HCCS No. 392 of 2019, Hon. Lady Justice Olive Kazaarwe cited with approval the case of Teopista Kyebitama Versus Damayino Batima ( 1976) HCB 276** where it was held that; " it is well established that where two or three suits are filed involving the same parties and arising from the same cause of action, they should either be consolidated for purposes of determining liability or only one of them first in point of time heard first".

5.2.1. Both counsel submitted on the principles to consider in case consolidation is to be effected that were amply set out in the case of; **Stumberg & Anor. Versus Potgieter (1970) EA 323 cited in Prince Balera & 7 Others Versus Attorney General & 153 Ors,** HC Misc. Application No. 176 of 2017 a decision by *Hon. Lady Justice Eva Luswata (as she then was*) wherein the factors were enumerated as follows; -

*"Consolidation of suits…should be ordered where there are common questions of law or fact in actions having sufficient importance in proportion to the rest of each action to render it desirable that the whole of the matters should be disposed of at the same time, consolidation*


*should not be ordered where there are deep differences between the claims and defenses in each action".*

- 5.2.2. Counsel for the applicant submitted that according to the evidence availed to this court under paragraph 7,8 and annexture C1 and C2 of the affidavit in support of Chamber Summons, it is clear as revealed therein that an order of cancellation of the grant as sought in HCCS of No. 029 of 2022 has the same effect as the order for a permanent injunction in HCCS No. 059 of 2018 restraining the defendant and/or her agents from undertaking any further dealing in the properties of the estate. This being the case, it is apparent that both suits are intended to achieve the same redress and the only way both suits can be handled without multiplicity of suits and also avoiding the possibility of this court coming with conflicting decisions is through consolidation of both suits. - 5.3. A glance at the Plaint filed in this court on 12th March, 2018 the Plaintiffs claim against the defendant is for; - a) A declaration that the suit property comprised in Block 438 of Plot 729 Land at Nkumba forms part of the Estate of the Late Kerespo Lubega. - b) A declaration that the Plaintiffs are entitled to a share in the estate of their father the late Kerespo Lubega. - c) An Order of sale of the suit property comprised in Block 438 of Plot 729 at Nkumba and proceeds of the sale be shared equally among all beneficiaries to the estate of the Late Kerespo Lubega. - d) An order directing the defendants to furnish accountability for the proceeds from the rental premises on the suit property comprised in Block 438 Plot 729 since the demise of the Late Kerespo Lubega in 1997 upto date.

 - e) Permanent Injunction restraining the defendants and/or their agents from undertaking any further dealings with the suit property comprised in Block 438 Plot 729 at Nkumba. - f) General damages and costs of the suit. - 5.4. Counsel for the applicant further submitted that on learning that the respondent (Edith Mary Lubega) had obtained Letters of Administration in respect of the Estate of the Late Kerespo Lubega, the Applicants instituted a suit against her since the letters were fraudulently obtained and the fact that she ( as the administrator of the estate) had failed to distribute the estate but instead she was mismanaging the properties to the detriment of the beneficiaries including the applicants and hence filed HCCS No. 029 of 2022 seeking; - a) An order for revocation/annulment of Letters of Administration of the Estate of the Late Kerespo Lubega granted to the defendant. - b) Citation of Letters of Administration. - c) An Order granting the Plaintiffs Letters of Administration of the estate of the Late Kerespo Lubega. - d) Cancellation of defendant's names from the Certificate of title for the property comprised in Busiro Block 493 Plot 390 at Bunono and land be registered in the names of the Administrators of the Estate. - e) An order directing the defendant to furnish accountability for rental proceeds from the properties of the estate from the date of obtaining the grant up-to the date of filing this suit. - f) A permanent injunction restraining the defendant and/or her agents from undertaking any further dealings in the properties of the estate. - g) Special damages of UGX. 250,000,000/=


- h) Mense Profit for rentals on Kibanja at Nkumba, Interest on special dames at the rate of 24% from the date of the grant to the date of judgment, general damages, interest on general damages at court rate from date of judgment until payment in full and costs of the suit - 5.5. The Respondent reiterated that these two matters are not appropriate for consolidation for reasons the intended consolidation introduces a new cause of action and would occasion injustice to the Respondent if permitted. - 5.6. The Respondent's Counsel further submitted that consolidation of the two cases is intended to frustrate the Respondent's defence and Counterclaim since HCCS No.029 of 2022 which seeks to strike off the 3rd and 4th Plaintiffs the registered proprietors of the Suit Property. The Defendants/Counterclaimants who are the Respondents challenge the 3rd and 4th Plaintiffs' fraudulent acquisition of the Certificate of Title to the Suit Property, without the knowledge or consent of the 3rd Defendant as Administrator of the Estate and the Defendants/Counterclaimants make several prayers, including delivery of the Certificate of title to the Suit Property; cancellation of the entries of the 3rd and 4th Defendants sought to be struck-off the suit, among other prayers. An attempt to stealthily strike them off the suit is done in bad faith; it is prejudicial to the Defendant's Defense and Counter Claim and it is untenable. The consolidation is brought in bad faith; it's calculated to cure incurable defects, it is prejudicial to the Respondent's /Defendant's Defense and Counter Claim and should be rejected. - 5.7. Lastly, Counsel for the Respondent submitted that the Application for consolidation is a veiled attempt to withdraw from the suit without payment of the requisite costs, and it is done in bad faith. It is reflected


on record that a notice of withdrawal was filed in this court on 21st September, 2020 notifying court that the 3rd and 4th Plaintiffs had wholly withdrawn from Civil Suit No. 059 of 2018 against all the defendants and without observing Order 25 of the CPR, which comes with a consequence of payment of costs.

5.8. At the close of the arguments/submissions by the parties, I have considered the prayers in the Application and the submissions by the respective parties and I find that the issue to determine is whether the Applicants have met the threshold for consolidations of suits.

## **6.0. Resolution**

6.1. The Jurisdiction to consolidate suits is provided for under Order 11 Rule 1 and 2 of the Civil Procedure Rules. In reference to the Indian case of *Brij Kishore Versus Bir Singh & Others Harana L. R. 5922 of 2013* wherein Justice Paramjeat Singh quoted the following from the Indian Supreme Court case of; *Prem Lala Nahata & Another Versus Chandi Prasad Sikaria, (2007) 2,* Supreme Court Cases 551 at paragraph 18 and stated as follows; -

*"It cannot be disputed that the Court has power to consolidate suits in appropriate cases. Consolidation is a process by which two or more causes or matters are by order of the Court combined or united and treated as one cause or matter. The main purpose of consolidation is therefore to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. The jurisdiction to consolidate arises where there are two or more matters or cause pending in the Court and it appears to the Court that some common questions of law or fact arises in both or all the suits or that the rights to relief claimed in the suits are in respect of or arise out of the same transaction or series of transactions; or that for some other reason, it is desirable to make an order consolidating the suits."*


- 6.2. The grounds upon which the present application was made were *interalia*, that the suits raise a common question of law and fact, that the results are inter-related and it would be convenient to try all the suits together. The application was opposed on the grounds that one suit introduces a new component. - 6.3. I have considered the averments in the Plaint in both suits and it has come to my considered opinion that these suits have difference orders sought. I also do not find it truthful for the applicants to allege that they have recently learnt about the respondent in this matter to have received Letters of Administration any yet they are the same parties who instituted Civil Suit No, 304 of 2020 (Fred Matovu and Mulindwa Enock Versus Edith Mary Lubega (Administrator of the estate of the late Kerespo Lubega) on Thursday 3rd December, 2020. The fact that they instituted a suit against her not in her individual capacity but as an administrator of the Estate of their late father the late Kerespo Lubega is sound enough that they were aware that Letters of Administration had been obtained. - 6.4. It is on court record that the applicants in this matter are the same applicants in Miscellaneous Application No. 490 of 2020 (Fred Matovu and Mulindwa Enock Versus Edith Mary Lubega) werein the applicants sought orders that leave be granted to the applicants/plaintiffs to amend the Plaint in the manner proposed in the attached amended plaint, leave be granted to strike out the 2nd and 4th plaintiffs and the 1st and 2nd Defendants from Civil Suit No. 59 of 2018. Part of the ground being that the new and pertinent facts that arose subsequent which materially to the filing of the suit and documents discovered by the applicants which materially affected and consequently impacted the nature of reliefs sought in the plaint filed before this honourable court, for example, the discovery that the 3rd


defendant was granted letters of administration of the estate of the late Kerespo Lubega. (Item 2 of the chamber summons).

- 6.5. The purpose of consolidation of suits is to save costs, time, speed up trial, eliminate duplicative trials involving the same parties, issues and evidence, for efficient and proper administration of justice, and expeditious disposal of matters, consequently promote judicial economy, so long as it is not to prejudice any of the Parties. - 6.6. The essence of consolidation of suits is to facilitate the efficient and expeditious disposal of disputes, and to provide a framework for a fair and impartial dispensation of justice to the parties. Consolidation was never meant to confer any undue advantage upon the party that seeks it, nor was it intended to occasion any disadvantage towards the party that opposes it. - 6.7. In **Nyati Security Guards & Services Ltd Versus Municpal Council of Mombasa [2000] eKLR,** the court held; "the situation in which consolidation can be ordered include where there are two or more suits for matters pending in the same court where; some common questions of law or fact arises in both or all of them, the right or reliefs claimed in them are in respect of the same transactions and for some other reasons, it is desirable to make an order for consolidating them". - 6.8. It is this Court's finding that HCCS No. 59 of 2018 and HCCS No. 29 of 2022 do not need to be consolidated, I therefore do not find it necessary I will hear both matters as initially filed by the Plaintiffs starting with HCCS No. 59 of 2018 since it was the first to be registered in this court, I have therefore scheduled it for hearing on 14th September, 2023 at 11:00am.


- 7.0. Costs. - 7.1. I have failed to find sufficient grounds for consolidation, in the result the application fails and it is hereby dismissed with costs. The Respondent is awarded costs.

## **8.0. Conclusion**

- 8.1. Accordingly, the Application is dismissed with the following orders; - 1. Civil Suit No. 059 of 2018 and Civil Suit No. 029 of 2022 will be heard independently. - 2. Civil Suit No. 059 of 2018 will be heard on 14th September, 2023 at 11:00am - 3. Costs of this Application are awarded to the Respondents.

## *Dated, Signed and Delivered by Email this 2nd August, 2023.*

**\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_ CELIA NAGAWA**

**AG. JUDGE**