Muhindo (Administrator of the Estate of the late Bahighana Cyril) v Saad Islamic Institute (Civil Appeal 33 of 2024) [2025] UGHC 27 (28 January 2025)

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT KASESE**

**HCT-25-LD-CA-0033-2024**

**(FORMERLY HCT-01-LD-CA-0023-2023)**

**(ARISING FROM KAS-00-CV-MA-0050-2022)**

**MUHINDO EMMANUEL – ADMINISTRATOR OF**

**THE ESTATE OF THE LATE BAHIGHANA CYRIL=====================APPELLANT**

**VERSUS**

**SAAD ISLAMIC INSTITUTE==================================RESPONDENT**

**BEFORE JUSTICE DAVID S. L. MAKUMBI**

**JUDGMENT**

**REPRESENTATION:**

Appellant represented by M/S Sibendire, Tayebwa & Co. Advocates

Respondent represented by M/S Bagyenda & Co. Advocates

**BACKGROUND:**

This is an appeal by which the Appellant, being aggrieved and dissatisfied with the ruling and orders of Her Worship Betty Ajok, Chief Magistrate in Civil Suit No. KAS-00-CV-MA-0050-2022 appealed against the same on the following grounds:

1. The Learned Trial Magistrate erred in law and fact when she dismissed the application on the basis of a mere technicality. 2. The Learned Trial Magistrate erred in law and fact when she dismissed the application without establishing if Bahighana Cyril who was sued by the respondent was physically different from Bahighana Cyril for whose estate Muhindo Emmanuel was the administrator. 3. The learned Trial Magistrate erred in law and fact when she dismissed the application on the basis of something that can be treated by an amendment. 4. The learned Trial Magistrate erred in law and fact when she held that the applicant did not address the preliminary objections in the affidavit in rejoinder and in the applicant’s written submissions. 5. The learned Trial Magistrate erred in law and fact when she failed to consider the grounds of the application thereby perpetuating an illegality.

The Appellant accordingly made the following prayers:

1. The Appeal be allowed. 2. A temporary injunction be issued against the Respondent. 3. The ruling and orders of the lower court be set aside. 4. The appellant be awarded the costs of this appeal.

The brief facts in this matter are as follows.

The Appellant filed an application by way of Chamber Summons under Order 41 Rules 1 and 9; Section 98 of the Civil Procedure Act; and, Section 33 of the Judicature Act on 29th November 2022 by which he sought orders that:

1. A temporary injunction doth issue restraining the Respondent from evicting the Appellant, alienating, registering the suit land and destruction of crops and trees pending determination of Civil Suit No. 32 of 2009 before the Chief Magistrate in Kasese. 2. Costs of the application be in the cause.

According to the Affidavit in Support of the application sworn by the Appellant Muhindo Emmanuel on 9th January 2022, he sought to restrain the Respondent from evicting from and alienation of the suit land during the pendency of Civil Suit No. 39 of 2002. He further stated that the balance of convenience was in his favour and that the Respondent who was the Plaintiff in the main suit stood no chance of success.

By way of Affidavit in Reply sworn by Razaka Asuman, the Respondent stated that the Appellant had no locus standi to bring the application and that the main suit had already abated and that furthermore the Appellant had never applied to be put on record as a legal representative of the deceased Plaintiff/Respondent. The Respondent further stated that the status quo on the land had since changed and there was nothing to preserve in the interests of the Appellant. This is because the main suit had already been determined ex parte on 16th August 2010 and it is only upon execution that the Appellant had applied to be heard.

By way of Affidavit in Rejoinder, the Appellant rejected the reply and stated that the Respondent entered the suit land on 9th March 2023 after abandoning the suit. The Appellant further stated that the main suit had been reinstated on 15th September 2011. The Appellant further stated that following the adjournment of the main suit sine die on 15th May 2015 due to issues concerning the membership of the Respondent board, the Respondent had proceeded to forcefully evict the Respondent from the suit land in March 2022.

On 3rd April 2023, the learned Trial Magistrate delivered a ruling by which she dismissed the application on the grounds that there was no main suit pending contrary to Order 41 Rule 1 of the Civil Procedure Rules as the main suit No. 32 of 2009 had since abated and furthermore it had been determined and disposed. The learned Trial Magistrate also ruled that the Appellant had no locus standi in the application as he had appeared in capacity of Administrator of the Estate of the Late Bahighana Siriro whereas the original party in the suit that he was representing was on court record as Bahighana Cyril. The Trial Magistrate ruled without giving reasons that Siriro and Cyril were two different persons and upheld the preliminary objections and accordingly dismissed the application.

It is on the basis of the above that the Appellant being aggrieved and dissatisfied filed this present appeal.

**Duty of the First Appellate Court:**

The duty of this Court as a first appellate court as laid down by the Supreme Court in the case of **Father Nanensio Begumisa and three others v. Eric Tiberaga Civil Appeal No. 17 of 2000** is as follows,

*“It is a well-settled principle that on a first appeal, the parties are entitled to obtain from the appeal court its own decision on issues of fact as well as of law.  Although in a case of conflicting evidence the appeal court has to make due allowance for the fact that it has neither seen nor heard the witnesses, it must weigh the conflicting evidence and draw its own inference and conclusions*.”

This Court therefore has a duty to re-evaluate the evidence before the lower Court in its entirety and the subsequent decision of the Court and reach its own decision on the correctness of the decision of the lower Court taking into account the arguments of the parties in the appeal.

**Submissions of the Parties:**

During submissions for this appeal the Appellant drew the attention of Court to an error in Ground 2 of the Appeal and prayed that Ground 2 be amended to read, “The Learned Trial Magistrate erred in law and fact when she dismissed the application without establishing if Bahighana Cyril who was sued by the respondent was physically different from Bahighana Siriro for whose estate Muhindo Emmanuel was the administrator.”

Strictly speaking the amendment above ought to have been raised in Court and not as part of written submissions. However, given that the purpose of the amendment is to clarify a detail upon which the appeal is mainly premised I am inclined to allow the amendment in the interest of achieving substantive justice in the matter without undue regard to technicalities (see Article 126(2)(e) of the Constitution).

Furthermore Counsel for the Appellant opted to argue the first three grounds jointly and then address Grounds 4 and 5 separately.

**ANALYSIS AND RESOLUTION OF GROUNDS OF APPEAL:**

1. **The learned Trial Magistrate erred in law and fact when she dismissed the application on the basis of a mere technicality:** 2. **The learned Trial Magistrate erred in law and fact when she dismissed the application without establishing if Bahighana Cyril who was sued by the respondent was physically different from Bahighana Siriro for whose estate Muhindo Emmanuel was the administrator.** 3. **The learned Trial Magistrate erred in law and fact when she dismissed the application on the basis of something that can be treated by an amendment.**

As concerns the grounds above, Counsel for the Appellant argued that the Trial Magistrate’s decision that the Appellant had no locus standi in the application was wrong because there was ample evidence that it was the Respondent who introduced Siriro as Cyril in the main suit. Counsel further argued that there was no evidence that there was another person named Cyril in relation to the suit land and that furthermore the then Defendant’s National ID in the names Bahighana Siriro was available to court and that even the Letters of Administration granted to Muhindo Emmanuel were in relation to the suit land.

According to Counsel for the Appellant, the issue of the deceased Defendant’s name was a misnomer and cited the decision of Justice Stephen Mubiru in the case of **Kaggwa Michael v Olal Mark and 6 others – HCCA No. 10 of 2017 (Gulu)** which decision was also upheld by the Court of Appeal vide **Olal Mark and 6 others v Kaggwa Michael – Civil Appeal No. 89 of 2019.**

Counsel further cited the decisions in **Kilembe Mines v Uganda Gold Mines Ltd – HCT-00-CC-0312-2012** and **Davies v Elsby Brothers Ltd (1960) 3 All ER 672 (CA)** arguing that the Defendant in the main suit had been sued as Bahighana Cyril but died before the case was decided. Letters of Administration had then been secured for his estate which estate included the suit land. However, the Letters of Administration reflected his name as captured in the National ID. According to Counsel for the Appellant the real issue for the lower Court with regard to the names was whether Bahighana Cyril was different from Bahighana Siriro. Counsel argued that there was no evidence to suggest that the two were different. Furthermore, the Respondent had not even challenged the question of the Appellant’s identity and that furthermore according to Paragraph 10 of the Affidavit in Reply sworn by Razak Asuman in response to the application before the lower court, the factnof Bahighana Cyril’s death was recognized.

Counsel for the Appellant argued that the issue of the name of the deceased Defendant was a misnomer and on that basis Grounds 1, 2 and 3 ought to succeed.

Counsel for the Respondent argued in reply to Grounds 1, 2 and 3 that the Defendant was bound by Section 36 of the Registration of Persons Act while he was alive and that furthermore after his death the Appellant had not furnished any Gazette or accompanying instruments to prove the change of name. Counsel maintained that Bahighana Cyril and Bahighana Siriro were two different persons.

Counsel for the Respondent went on to submit that it was argued before the lower Court that if the Appellant had wished to join the suit under the name on the grant of Letters of Administration then he ought to have first applied under Order 24 Rule 4(1) to be substituted as a legal representative of the deceased. Counsel argued that the Appellant never fulfilled this requirement in the main suit but had instead proceeded to file an application based on the main suit for which he was not yet a party.

Counsel argued that the Trial Magistrate had been correct in her decision that the Appellant had no locus standi and that it was not the duty of the Trial Magistrate to establish whether Bahighana Cyril was different from Bahighana Siriro. He argued that the duty lay on the party who was supposed to have moved court in an application for substitution in the main suit. Counsel went on to argue that an amendment in names cannot be done in the application for injunction while the main suit still reads a different name.

Counsel for the Appellant argued in rejoinder that the Trial Magistrate’s decision was not based on whether or not the Appellant had applied to be replaced as a Defendant but rather she had decided on the basis that Bahighana Cyril and Bahighana Siriro were two different persons. He further argued that the Registration of Persons Act was not applicable in this matter because it was the Respondent who had incorrectly named the Respondent before the lower Court. It was therefore the duty of the Respondent to prove that Bahighana Cyril was a different person but this was not done. Counsel made reference again to the Olal decision insisting that this was an issue of misnomer as it is common knowledge in many communities that Siriro is the vernacular version of Cyril.

I have considered the arguments of both Counsel in this matter as well as the proceedings and ruling of the lower Court. I shall consider Grounds 1, 2 and 3 jointly as ultimately they all relate to one thing and that is whether or not the Learned Trial Magistrate was correct in ruling that the Appellant lacked locus standi before the lower court in the application for temporary injunction.

In the ruling of the learned Trial Magistrate she initially made reference to Order 41 Rule 1 of the Civil Procedure Rules which lays out the circumstances under which the Court may grant a temporary injunction until the disposal of the main suit or until further order. She then correctly pointed out that for a temporary injunction to be granted there must be a pending main suit. However, the Trial Magistrate then went on to rule that the application was based on Civil suit 32 of 2009 which suit had since abated and that it had been determined and disposed.

I find that the learned Trial Magistrate actually misdirected herself in fact and law when she held that Civil Suit No. 32 of 2009 before the Chief Magistrate Court had abated and was therefore determined and disposed. Whereas the learned Trial Magistrate gave no reasons for reaching this position I believe she may have been misguided by the submissions of Counsel for the Respondent before the lower court who claimed that the main suit had abated by reason of the death of the Defendant therein Mr. Bahighana Cyril.

However, the legal position concerning the effect of death of a party in civil proceedings is laid out distinctly by virtue of Order 24 Rule 1 of the Civil Procedure Rules. It is provided thereunder that the death of a plaintiff or defendant shall not cause the suit to abate if the cause of action survives or continues. Therefore, by virtue of this Rule and in accordance with the requirements of Section 101 of the Evidence Act, before one can proceed to make an argument that a suit is abated, the one who is pleading the fact of abatement must prove to court that the cause of action in the suit did not survive the death of the party in question (in this case the Defendant).

It is on the basis of the above, that I find that the Trial Magistrate erred in law and fact when she concluded that there was no pending main suit without evidence of abatement. The main suit being Kasese Chief Magistrate Civil Suit No. 32 of 2009 remained a valid suit until such time as it could be proved that the cause of action had not survived the passing of the Defendant which proof was never led before the lower Court.

As concerns the question about the discrepancy in names between Bahighana Cyril and Bahighana Siriro as Defendant in the civil suit pending before the lower Court and the subsequent application for temporary injunction arising from the same civil suit before the same lower court, I have considered the arguments of both Counsel carefully as well as the proceedings before the lower Court.

It is my considered view that even before one can get into a legal debate about whether or not the names Bahighana Cyril and Bahighana Siriro relate to different persons or are a misnomer, one has to take into account whether Muhindo Emmanuel who appears in capacity as Administrator of the Estate of the late Bahighana Cyril could appear as a representative of the deceased Defendant. The locus standi question here therefore had two issues to it.

The first issue as raised by Counsel for the Respondent was whether the Appellant having not applied to be made a party in the main suit could appear as a legal representative in an application arising from the main suit.

The second issue to the locus standi question concerns whether the Appellant could appear as legal representative to Bahighana Cyril while holding Letters of Administration for the estate of Bahighana Siriro.

As concerns the first issue apparent in the locus standi question, Counsel for the Appellant made a spirited effort to direct this Court away from the same on the grounds that this issue did not feature at all in the decision of the learned Trial Magistrate. While I do agree that the learned Trial Magistrate’s ruling was primarily focused on the difference between the names Cyril and Siriro, I find that it is impossible to address the difference in names without considering how the issue comes about to begin with. In other words this Court cannot close its eyes to the question of whether the Appellant correctly appears as a legal representative of the deceased Defendant because that question also has a direct bearing on whether the Appellant also has locus to appear before this very Court. In order to get to the misnomer debate one must first settle the question of how the legal representative comes to appear both before the lower Court vis a vis the impugned application for temporary injunction and this present appeal.

With regard to the above, Counsel for the Respondent drew this Court’s attention to Order 24 Rule 4(1) of the Civil Procedure Rules which provides inter alia that where a sole defendant or sole surviving defendant dies and the cause of action survives or continues, the court, on an application made for that purpose, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. By this rule the following conditions have to be met in order for a legal representative to be made a party to a suit:

1. Death of the defendant 2. Survival or continuation of cause of action 3. Application to court by legal representative

When I consider the lower Court record, it is clear to me especially from Paragraph 10 of the Affidavit in Rejoinder to the application sworn by the Appellant before the lower Court that the main suit had been adjourned sine die on 15th May 2015 and by that time the now deceased Defendant was still alive and was on record as Bahighana Cyril. There is no evidence apparent in the lower Court record to suggest that the Appellant ever took steps in accordance with Order 24 Rule 4(1) of the Civil Procedure Rules to be made a party in the main suit vide Kasese Chief Magistrate Civil Suit No 32 of 2009.

The effect on a party who presents an interlocutory application when they are not on record as a party in the main suit is clear. Such a party has no locus standi in the interlocutory matter as the interlocutory matter arises from the main suit and to that extent is part and parcel of the main suit. It is not open to a litigant to use the occasion of an interlocutory application to enter appearance as this would have the effect of introducing a new party outside of the main suit and yet the interlocutory application is intended to determine have some form of legal impact on the main suit where the said party is yet not known to Court.

It is clear to me therefore that in this instance the Appellant placed the proverbial cart before the horse. An application for a temporary injunction is exactly that, an application for temporary injunction. It cannot therefore also become the occasion where the Applicant also enters appearance as a representative of the deceased Defendant for the first time. The procedure for applying to be made a party in the place of a deceased defendant is specifically provided under Order 24 Rule 4(1) of the Civil Procedure Rules and furthermore is subject to limitation. The two procedures are separate and distinct and one cannot be used as the occasion for the other and vice versa.

It follows therefore that even with regard to this appeal the Appellant has no locus standi as the basis of his appearance before this Court is the presumption that he had proper standing before the lower Court which is clearly not the case. It further follows that without having complied with the requirements of Order 24 Rule 4(1) of the Civil Procedure Rules in the main suit, it was not open to the Appellant to argue the question of misnomer both before the lower Court and before this Court on appeal. The question of misnomer would have been more appropriately addressed during the application under Order 24 Rule 4(1) but the Appellant clearly did not take this step.

I therefore find that Grounds 1, 2 and 3 all fail. While I do not agree with the reasoning of the learned Trial Magistrate in reaching her decision to dismiss the application on grounds of lack of locus standi, I find that the decision was actually correct on the basis of the analysis above.

1. **The learned Trial Magistrate erred in law and fact when she held that the applicant did not address the preliminary objections in the affidavit in rejoinder and in the applicant’s written submissions.** 2. **The learned Trial Magistrate erred in law and fact when she failed to consider the grounds of the application thereby perpetuating an illegality.**

I have considered the arguments of both Counsel with regard to Grounds 4 and 5 respectively. However in light of the finding of absence of locus standi before the lower Court concerning the first three grounds above, I find that the subsequent Grounds are devoid of merit to the extent that the Appellant has no locus standi to raise them before this Court. As already explained above, the Appellant’s locus standi before the lower Court rested on the Appellant applying under Order 24 Rule 4(1) of the Civil Procdure Rules to be made a party to the main suit Kasese Chief Magistrate Civil Suit No. 32 of 2009 before going on to make the application for which he is now appealing to this Court.

The foundation of this appeal rests on the Appellant having been legally recognized as a party in the application for which he is now appealing. The Appellant having not been legally recognized as a party before the lower Court cannot therefore have right of audience before this Court in appeal against the decision of the lower Court. Grounds 4 and 5 therefore also accordingly fail.

**ORDERS:**

1. The Appeal fails. 2. The ruling of the lower Court in **KAS-CV-CS-LD-MA-0050-2022** is upheld to the extent that the Appellant lacked locus standi before the lower Court and in accordance with Section 37 of the Judicature Act the ruling of the lower Court is accordingly substituted to reflect the reasoning and decision of this Court in that regard. 3. Costs of this Appeal are awarded to the Respondent.

I so order.

**David S. L. Makumbi**

**JUDGE**

**28/01/25**