Musiime & Another v Muutesi & 3 Others (Originating Summons 1 of 2024) [2025] UGHC 156 (12 March 2025)

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA

#### ORIGINATING SUMMONS NO.001 OF 2024

#### (Formerly Originating Summons No.004 of 2023 at Mubende High Court)

**1. MUSIIME EMMANUEL**

2. BYAMUKA CHARLES } ....................................

(Administrator of the estate of late Rwabulindoli Celestine)

#### **VERSUS**

1. MUUTESI SYLVIA

2. NYABIJURA FAITH

**3. NYANGORE MEBLE** } ....................................

(Children of late Rwabajoga Kalibwende)

4. THE COMMISSIONER LAND REGISTRATION

#### BEFORE HON. MR. JUSTICE KAREMANI JAMSON. K

#### **RULING**

#### Introduction.

Musiime Emmanuel and Byamukama Charles (hereinafter referred to as the applicants) filed this case under Order 37 Rules 1 &8 IF THE Civil Procedure Rules, Sections 14 and 33 of Judicature Act and the Succession Act against Mutesi Sylvia, Nyabijura Faith, Nyangore Meble and The Commissioner Land Registration (hereinafter referred to as the respondents) seeking determination of the following question:

- 1. Whether the plaintiffs can be denied a special certificate of title as the administration of the estate of late Rwabulindori Celestine on the ground that the late Rwabulindori Celestine is a tenant in common with equal shares with the late Rwabajoga Kalibwende whose estate has no administrator. - 2. Whether the plaintiff can be denied registration of a certificate of title as an administrator for the late Rwabulindori Celestine on the ground that the late Rwabulindori Celestine is a tenant in common with equal shares with the late Rwabajoga Kalibwende whose estate has no administrator.

Luam

- 3. Whether the $1^{st}$ and $3^{rd}$ defendants can frustrate the administration of the estate of the late Rwabulindori Celestine by refusing to appoint an administrator of their late father' estate as the co-owner of the land in issue. - 4. Whether the 4<sup>th</sup> defendant is in order for refusing to register the plaintiff on the certificate of title as administrators and refusing to issue them with a special certificate of title on the ground that the deceased co-owner has no administrators. - 5. Whether the defendants should pay costs of this suit.

The Summons is supported by the affidavit of Musiime Emmanuel the 1<sup>st</sup> plaintiff.

The respondents filed an affidavit in reply deponed by Nyabijura Faith the 2<sup>nd</sup> defendant. She averred that;

- 1. The two deceased persons purchased the land in issue measuring approximately 3 square miles together. - 2. That her late father bought 2 square miles of the 3 square moles while the deceased father of the plaintiff bought one acre. - 3. That the inclusion in the certificate of title that they were tenants in common with equal shares was a mistake. - 4. That their late fathers corrected the error by writing a sharing agreement acknowledging each ones share. - 5. That the same mistake was never rectified on the certificate of title.

At the hearing the learned counsel for the respondents raised a preliminary objection on the ground that the procedure adopted by the applicants of originating summons without first seeking the leave of court was irregular.

# Background

The deceased father of the plaintiffs and the deceased father of the defendants, the late Rwabulindori Celestine and the late Rwabajoga Kalibwende were registered proprietors of the land comprised in Singo Block 604 Plot 2 land at Kyamukekayera Mubende District as tenants in common.

Upon the death of late Rwabulindori Celestine letters of administration to his estate were applied for and granted to Byamukama Charles and Musiime Emmanuel.

Upon the death of the late Rwabajoga Kalibwende no one acquired letters of administration top his estate.

The plaintiffs contend that the failure to acquire letters of by the beneficiaries of the estate of the deceased has failed the acquisition of a certificate of title and transfer of the same into the administrators' names hence this application.

Julium Julium

### The issues to be resolved at this stage are:

- 1. Whether the procedure adopted of originating summons was proper. - 2. What are the remedies?

The learned counsel for the defendants submitted that the procedure adopted of originating summons was incurably defective. That under that procedure the plaintiff ought to have first presented an ex parte application to the judge in Chambers with an affidavit setting out the facts upon which the right to the relief sought by the summons is founded. That upon the same judge being satisfied that the facts alleged were sufficient and that the case was a proper one to be dealt with under originating summons, the same would be endorsed and served accordingly.

Counsel cited the case of Bukenya Paul & 7 Ors versus Mary Margret Nakawunde Anor Civil Appeal No.132 of 2016 where the above procedure was emphasized.

### **Decision of court**

According to Order 37 Rule 8(2) of the Civil Procedure Rule it is provided that

"the person entitled to apply shall present the application $\alpha$ parts to a judge sitting in chambers $\ldots$ and the judge if satisfied that the facts as alleged are sufficient and the case is a proper one *to be dealt with on an originating summons, shall sign the summons".*

I have looked at the proceedings in this matter and the *ratio decidendi* in the case of Bukenya Paul (supra) cited above and the Rule referred to above, am convinced by the submissions of the learned counsel for the defendants that the procedure adopted by the plaintiffs of filing the originating summons before seeking endorsement by the judge was irregular.

The procedure under Order 37 of Civil Procedure Rules requires that a preliminary ex parte hearing is held and the trial judge upon being convinced that there are pertinent questions to be answered frames those questions before the Originating summons is taken out spelling out those questions to be answered. It is then that the defendants can served with the same.

In the instant case the above procedure was faulted.

Furthermore, the Originating Summons procedure was designed to be applied where the matter does not require deep hearing of evidence.

In the case of **Namutebi Mariam Bitalo vs Nabisere Jalia Originating Summons** No.004 of 2023 at Land Division of High Court (unreported) it was held that the matter was a contentious one that required the court to look at a number of

1 Man

considerable evidence before determination. The originating summons filed was accordingly dismissed.

I have looked at the affidavit in support of the matter at hand and the affidavit in reply, I find that this matter involves a lot of complexities that cannot be addressed without each side adducing evidence.

The procedure of Originating Summons adopted in this case was not the right one.

# What are the remedies?

Since the procedure was faulted and at the same time it was not the right procedure I uphold the preliminary objection and strike out the Summons.

# Costs

I have taken into consideration the relationship of the parties' deceased parents and the fact that there is need to promote the harmony that their deceased parents had. I find that awarding costs may deepen their foes. I accordingly order that each party meets its own costs.

Wann

KAREMANI JAMSON. K **JUDGE** 12.03.2025