Mugabo and Another v Kiiza and 7 Others (Miscellaneous Application 110 of 2022) [2024] UGHC 873 (23 August 2024)

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT HOIMA

#### MISC. APPLICATION NO. 110 OF 2022

(Arising from Land Civil Suit No. 010 of 2010)

#### 1. MUGABO GEOFFREY

2. KWESIGA GODFREY::::::::::::::::::::::::::::::::::::

| | <b>VERSUS</b> | |-----------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------------| | 1. KIIZA EVELYN<br>2. SPERITO MUKWAYA<br>3. AHABWE ROBERT<br>4. DR. KASIRIVU ATWOOKI<br>5. KIIZA CHARLES<br>6. SAM NGARO<br>7. BYAKAGABA<br>8. KIRIKARAMA | <b>EXAMPLE 11:1:1:1:1:1:1:RESPONDENTS</b> |

## BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

## **RULING**

- The Applicants filed this application under Section 98 of the $[1]$ Civil Procedure Act, Section 222 of the Succession Act (as amended); Order 24 rule 3(1) and Order52 rules 1, 2 and 3 of the Civil Procedure Rules seeking orders that: - (a) The dismissal order for Civil Suit No. 010 of 2010 be set aside and the suit be reinstated and heard on its merit. - (b) The Applicants substitutes the late Nyarwaya Clever the deceased plaintiff in Land Civil Suit No. 010 of 2010. - No order be made as to costs. $(c)$ - [2] The grounds upon which this application is made are contained in the affidavit of the 1<sup>st</sup> Applicant, Mugabo Geoffrey, and

opposed by the affidavit in reply of the 1<sup>st</sup> Respondent, Kiiza Evelyn.

## **Background**

- The Applicants are nephews of the late Nyarwaya Clever who $[3]$ filed Civil Suit No. 10 of 2010 against the Respondents. It is the Applicants' contention that the late Nyarwaya Clever was managing the suit land on behalf of Kambanda James, the 1<sup>st</sup> Applicant's father. - The late Nyarwaya Clever died in 2014 before the said civil suit $[4]$ was heard and determined in this court. It was dismissed by this court on $24/8/2020$ for lack of prosecution. - The Applicants were appointed administrators of the estate of the $[5]$ late **Kambanda James** on $5/7/2022$ . As a result, the Applicants contend that there is need to appoint them as the legal representatives of the late Nyarwaya Clever and substitute for him in this suit, Civil Suit No. 10 of 2010. They filed the present application for reinstatement of the suit and for the substitution of their names as legal representatives of the late Nyarwaya **Clever** in the matter

#### **Counsel legal representation**

The Applicants were represented by Mr. Simon Kasangaki of M/S $[6]$ Kasangaki and Co. Advocates, Masindi while the 1<sup>st</sup>, 2<sup>nd</sup> & 4<sup>th</sup> Respondents were represented by Ms. Barbra Katusabe of M/S Musinguzi & Co. Advocates, Masindi. Both Counsel filed their respective submissions for consideration in the determination of this application.

## **Determination of the Application**

- $[7]$ Both Counsel proposed various issues for determination and I shall allude to them in the due course of the determination of the application but in my view, the issues for determination as proposed by Counsel for the Applicants suffice for this application. They are as follows: - Whether the Applicants have sufficient reasons to warrant 1. setting aside of the dismissal order in Civil Suit No. 10 of 2010. - What remedies are available to the parties. $2.$ - Issue No.1: Whether the Applicants have sufficient reasons to warrant setting aside of the dismissal order in Civil Suit No. 10 of 2010 - Counsel for the $1^{st}$ , $2^{nd}$ & $4^{th}$ Respondents submitted that under $[8]$ Section 180 of the Succession Act, as the case may be, the executor or administrator of a deceased person is their legal representative for all purposes and all the property of the deceased person vests in them as such. That under Order 24 r.3(1) of Civil Procedure Rules, where a plaintiff dies, the court, on an application made for that purpose, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. - Counsel argued that in the instant case, the Applicants are not $[9]$ administrators or legal representatives of the estate of the late Nyarwaya Clever, who died intestate and or cannot seek reinstatement of H. C. C. S. No. 10 of 2010 or be appointed to take over the suit which was left behind by the deceased. That the grant attached to the 1<sup>st</sup> Applicant's affidavit in support of the application is useless because it refers to the estate of the late Kambanda James, who was the plaintiff in Civil Suit No. 10 of 2010, they cannot represent his estate in the instant application and court case. - [10] Counsel argued further that $6<sup>th</sup>$ Sam Ngaro. the Respondent/Defendant is dead while the $7<sup>th</sup>$ and $8<sup>th</sup>$ Respondents

are fictitious and therefore, that the application is incurably defective for being brought against a deceased person and fictitious persons. In the premises, she prayed for dismissal of the application with costs.

- [11] Counsel for the Applicants on the other hand submitted that the Applicants having presented evidence that they are family members of the late Nyarwaya Clever, the original plaintiff in Civil Suit No. 10 of 2010 and a copy of the grant for the estate of the late Kambanda James who had appointed Nyarwaya Clever be a care taker of the suit land, they have locus to file this application and substitute for the deceased plaintiff. - [12] Under Order 1 rule 1 of the Civil Procedure Rules, it is provided thus:

"All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if those persons brought separate suits, any common question of law or fact arises."

Order 1 rule 13 adds thus:

"Application to add, strike or substitute a plaintiff or defendant."

"Any application to add or strike out or substitute a plaintiff or defendants may be made to the court at any time before trial by motion or summons or at the trial of the suit in a summary manner."

[13] As per the above provisions of our rules, it is pretty clear that there is no limitation curtailing or restricting the power of court to add, remove or substitute a party to a suit. The overriding consideration is that to add, remove or substitute a party, there should be no injustice to any of the parties to a suit and should be geared towards ensuring that all questions in controversy are heard and determined by court to finality.

- [14] In the instant case, I find that the Applicants who are administrators of the estate of the late Kambanda James, brother of the late **Nyarwaya Clever** who was caretaking or managing the suit land on behalf of **Kambanda James** have proved that they have an interest in the suit land and are interested in the conclusive determination of the dispute in Civil Suit No. 10 of 2010. It follows therefore, under Order 1 rule 1 of the Civil **Procedure Rules** the Applicants qualify to be substituted for the deceased plaintiff Nyarwaya Clever in Civil Suit No. 10 of 2010 upon their application for substitution of the deceased plaintiff. As to whether the late **Kambanda James** or the Applicants themselves have nothing to do with the suit/and or that there is no nexus or lack the actual interest in the suit land is a matter of evidence to be adduced by the Applicants as plaintiffs during the trial of this suit. What is evident is that they have an interest in the suit land and are therefore entitled to prosecute and or defend their interest thereof. - [15] As regards the claims by Counsel for the $1^{st}$ , $2^{nd}$ & $4^{th}$ Respondents in her submissions that the $6<sup>th</sup>$ Respondent **Sam Ngaro** is dead and that **Byakagaba** (7<sup>th</sup> Respondent) and **Kirikarama** $(8<sup>th</sup>$ Respondent) are fictitious, I find that the Counsel for the Respondents' conduct amount to adducing evidence from the bar. There is no evidence from Kiiza Evelyn's affidavit in support of the application that the $6<sup>th</sup>$ Respondent/Defendant is dead. No proof of his death in form of a death certificate or otherwise is attached to the affidavit. The same apply to the $7<sup>th</sup>$ and $8<sup>th</sup>$ **Respondents/Defendants** being fictitious. No evidence has been adduced in the affidavit in reply in support such a contention. - [16] As a result of the above, I do find the claims of the Respondents without any merit. - [17] Lastly, as regards the claims by Counsel for the $1^{st}$ , $2^{nd}$ & $4^{th}$ Respondents Counsel that the application is time barred, has not shown that the present application is time barred as she claims in her submission in reply.

**Issue** $No.1:$ Setting aside the dismissal order and reinstatement of Civil Suit No. 10 of 2010

- [18] It is trite that where the suit is dismissed, the applicant for reinstatement must prove sufficient cause, Abel Balemesa vs Yesero Mugenyi H. C. M. A No.126 of 2019. - [19] In the instant case, it appears not in dispute that the original plaintiff of Civil Suit No. 10 of 2010 which was dismissed for want of prosecution died in 2014 and that the suit was dismissed on $24/8/2020$ . - [20] It is apparent from the above that the suit was dismissed when the original plaintiff Nyarwaya Clever was still alive. The Applicants attribute the eventual dismissal of the case to the death of Nyarwaya Clever. I find this argument not convincing since the suit was dismissed during the life time Nyarwaya Clever.

# **Issue No.2: Remedies available to the parties**

- [21] In view of the fact that the late Nyarwaya Clever died before the determination of Civil Suit No. 10 of 2010 and the Applicants have proved that they have substantial interest in the suit land under Section 98 of the Civil Procedure Act which provides that nothing shall be deemed to limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or prevent abuse of the process of court, I allow the application and costs shall abide the outcome of the main suit. - [22] The Application is therefore in the premises allowed with the following orders: - The dismissal order for H. C. C. S. No. 10 of 2010 is set aside $(a)$ and the suit is reinstated to be heard on its merits.

- (b) The Applicants be and are hereby substituted as the plaintiffs in H. C. C. S. No. 10 of 2010 in a representative capacity. - The Applicants to accordingly within 15 days from the date $(c)$ of this ruling amend the plaint to reflect the Applicants as necessary plaintiffs. - (d) The Registrar of this court to fix **H. C. C. S. No. 10 of 2010** for mention and further directions.

Order accordingly.

Dated at Hoima this $23^{rd}$ day of August, 2024.

Byaruhanga Jesse Rugyèma **JUDGE**