Mucunguzi and Another v Akatukunda (Miscellaneous Application 1064 of 2022) [2023] UGHCFD 155 (6 June 2023)

#### **FTHE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KAMPALA FAMILY DIVISION**

#### **MISCELLANEOUS APPLICATION NO. 1064 OF 2022**

## **(ARISING FROM CIVIL SUIT NO. 394 OF 2022)**

#### **(ARISING FROM ADMINISTRATION CAUSE NO. 1588 OF 2022)**

#### **MUCUNGUZI SHAYNE**

## **AHURIRA JOANITA::::::::::::::::::::::::::::::::::::::::::::::::APPLICANTS (Beneficiaries of the Estate of the late Mucunguzi Silver, suing through their next friend Kyarisiima Ruth)**

## **VERSUS**

## **AKATUKUNDA EDINAH :::::::::::::::::::::::::::::::::::::::: RESPONDENT**

#### **RULING BY HON. LADY JUSTICE CELIA NAGAWA**

#### **1. Introduction**

## **1.1. Representation**

- 1.1.1. The Applicant is represented by Mr. Karugaba Levis from Sebanja & Co. Advocates, Kampala. - 1.1.2. The Respondent is represented by Mr. Maxim Mutabingwa from Mutabingwa & Co. Advocates, Kampala.

## **2. The Application**

2.1. This Ruling relates to a Chamber Summons dated 24th November, 2022 brought under the provisions of 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. The


Application is supported by an Affidavit dated 24th November, 2022 sworn by the Applicant.

- 2.2. The Applicant is seeking the following orders; that: - **1)Civil Suit No. 394 of 2022 and Civil Suit No. 005 of 2022 all arising from Administration Cause No. 1588 of 2022 be consolidated.** - **2) Further proceedings in Civil Suit No. 005 of 2022 be stayed until further Order.**

# **3)The costs of this application be provided for.**

2.3. In brief the applicant avers that; the Respondent petitioned for Letters of Administration vide Administration Cause No. 1588 of 2022. The Petition was caveated by Ms. Akwankwasa Jesper, then the Petitioner filed HCCS No. 005 of 2022 arising from the Petition of Letters of Administration. Once the Applicant realized acts of intermeddling with the estate by the Respondent, they too caveated the petition to grant Letters of Administration. The Applicant wants this Court to consolidate the two Civil Suits that they have similar questions of law as to whether the respondent is intermeddling with the estate of the late Mucunguzi and whether the Respondent should be appointed an Administrator of the said estate. In both Civil Suits the parties are beneficiaries to the said estate.

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

3.1. Similarly, the Respondent has sued Akwankwasa Jesper vide a Plaint dated 6th January, 2022 Civil Suit No.005 of 2022. Learned Counsel for the Respondent, Maxim Mutabingwa opposed the Application and filed an affidavit in reply deponed by the Respondent on 10th May, 2023.


- 3.1. The Respondent argued that whereas it is true that she Petitioned for Letters of Administration vide Administration Cause No. 1588 of 2022 for the Estate of the late Mucunguzi Silver and bought a suit against Jesper Akwankwasa who lodged a caveat against the issuance of the Letters of Administration vide Civil Suit No. 005 of 2022 which is pending before this Court. Scheduling of the said suit No. 005 of 2022 has been completed and all the necessary pre-trial exercise has been concluded. The issue of who in entitled to obtain the Letters of Administration has been covered under Civil Suit No. 005 of 2022. The Applicant is a witness in Civil Suit No. 005 of 2022, the minors have been declared as beneficiaries in Administration Cause No. 1588 of 2022 and the next friend filed Civil Suit No. 394 of 2022 which the Respondent finds frivolous, unnecessary and an abuse of Court process and ought to be withdrawn or dismissed or stayed but not consolidated with a suit which is in advanced stages of hearing and likely to cause delay in hearing Civil Suit No. 005 of 2022. - 3.2. The applicant filed a rejoinder.

# **4.0. Submissions**

- 4.1. The Parties agreed to dispose of the Application by filing written submissions. - 4.2. It was submitted by the Applicant 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. That the principles to consider 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".*

- 4.3. However, the Respondent reiterated the factual matters stating that Civil Suit No. 005 of 2022 which the Applicant seeks to consolidate with Civil Suit No. 394 of 2022 is already in advanced stages of hearing. Learned Counsel submitted that all preliminary steps have been completed in Civil Suit No. 005 of 2022, scheduling conference has been completed, trial bundles and witness statements are already on court record and the matter only awaits cross examination of witnesses and all this was done before Civil Suit No. 394 of 2022 which is about a similar issue. The court finds that this is true status of the record as per 11th July, 2022. - 4.4. 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. - 4.5. In HCCS No. 394 of 2022 the prayers sought are that; a declaration that the defendant is intermeddling with the estate of the late


Mucunguzi Silver, a declaration that the defendant is not a fit and proper person to obtain letters of Administration to administer the estate of the Late Mucunguzi Silver, an order appointing the plaintiffs next friend Kyosimiire Ruth as an Administrator to protect their respective beneficial interests in the estate of the late Mucunguzi Silver, general damages and costs.

- 4.6. Similarly, in HCCS No. 005 of 2022 the prayers are that; a declaration that the Defendant is not a widow of the deceased or beneficiary to the estate of the deceased and that the caveat was lodged without justifiable cause, a declaration that the Plaintiff is the sole widow of the deceased, an order for removal of the caveat lodged by the defendant, an order that the letters of administration be granted to the plaintiff, general damages and costs. - 4.7. In both Civil Suits there is an element of who should be granted Letters of Administration and who are the rightful beneficiaries to the Estate of the Late Mucuguzi Silver?

## **5.0. Resolution**

5.1. 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."*

- 5.2. While resolving the issue of whether HCCS No. 394 of 2022 and HCCS No. 005 of 2022 should be consolidated, Counsel for the Applicant submitted on principles for consideration being that a *common question of law or fact arises in the actions; the right to relief claimed arise out of the same transaction; and it is otherwise desirable to approve the consolidation.* - 5.3. The grounds upon which the present application was made were *inter- alia*, that the suits raise a common question of law and fact, that the transactions are inter-related and it would be convenient to try all the suits together. The application was opposed on the grounds that the suits are at different levels of trial. - 5.4. I have considered the averments in the Plaint in both suits and it has come to my considered opinion that these suits emanates from obtaining Letters of Administration of the late Mucunguzi Silver and intermeddling with the estate as alleged by the caveators of the Petition for the grant. - 5.5. 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.

- 5.6. 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. - 5.7. As regards the opposition to the application that the suits are at different stages of trial, that per se cannot be a bar to an order for consolidation. None of the suits has been heard, the one that is ready for trial is HCCS. No. 005 of 2022 which was cause listed for hearing on 20th September, 2022 but was never heard by the trial judge. - 5.8. In the Court's view, it would be convenient and expedient to try all the suits together as it would obviate the multiplicity of suits. It will lead to the determination of all the issues arising in all the 2 suits at the same trial. It will be less costly and will save the court precious judicial time.

## **6.0. Conclusion**

Accordingly, the Application is allowed as follows;

- 1. Civil Suit No. 005 of 2022 is hereby consolidated with Civil Suit No. 394 of 2022. - 2. Civil Suit No. 005 of 2022 will be the head suit. - 3. I grant leave to either of the parties to be at liberty to amend their pleadings within 14 days of this order, if need arises. - 4. The parties should file and exchange their consolidated witness statements with their respective trial bundle documents within 14 days from date of delivery of this Ruling.


- 5. The matter is scheduled for hearing on 30th October, 2023 at 11:00am. - 6. Costs of this application shall be in the cause.

*Dated, Signed and Delivered by Email this 6th June, 2023*