Namukasa v Namayanja & 4 Others (Miscellaneous Application 890 of 2024) [2024] UGHCLD 117 (2 May 2024)

# **THE REPUBLIC OF UGANDA**

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

# **(LAND DIVISION)**

# **MISCELLANEOUS APPLICATION NO 890 OF 2024**

# **ARISING OUT OF**

## **MISCELLANEOUS APPLICATION NO 889 OF 2024**

# **ARISING OUT OF**

# **MISCELLANEOUS APPLICATION NO JRC 2 OF 2024**

**[ARISING OUT OF CIVIL SUIT NO 1117 OF 2023]**

**ROSE N NAMUKASA :::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

**Administrator of the Estate of the late M. N Sesiriya**

**(suing through her lawful Attorney Nelson Dhibikirwa)**

# **VERSUS**

**1. NAMAYANJA MAYANJA MARGRET (being sued through her Lawful Attorneys; Susan Munabi, Nantale Agnes and Bakahuna Joseph)**

**2. GEO OILS (U) LTD**

#### **3. KIBWIKA GEOFREY**

#### **4. NCBA BANK UGANDA LTD**

## **5. MUKIZA VALLEY :::::::::::::::::::::::::::::::::::::: RESPONDENTS**

#### **BEFORE; HON. LADY JUSTICE NALUZE AISHA BATALA**

#### **RULING**

## *Introduction;*

- 1. The Applicant brought this Application under section 98 of the CPA, Order 43 r.4(4) of the Civil Procedure Rules and all other enabling provisions of the law seeking for orders that; - i) Execution of the consent judgement issued by the court in Civil Suit No.117 of 2023 be stayed pending hearing of the application for stay of execution filed by the Applicant in this court. - ii) That an interim order doth issue restraining the 2nd -5th respondents or their agents, servants, assignees, successors in title and or persons claiming under them, from transferring, dealing with, developing, constructing on, selling or interfering with the land comprised in BUSIRO FRV

1006 FOLIO 13 PLOT 8-12/8A until final disposal of the main Application for stay of execution.

iii)The cost of this Application be provided for.

# *Applicant's Evidence;*

*2.* The grounds of this application are set out in the application and affidavit in support of the Application on the 11th day of April, 2024 and briefly are;

i) That the Applicant had filed an application for review of a consent judgement issued by the court against the Respondents in the High Court of Uganda, Lands Division and the application is pending hearing.

ii) That it is imperative to stay execution of the consent judgement so that the Application for review is not rendered nugatory.

iii) That the Applicant will suffer irreparable damage if this Application is not granted.

iv) That the Applicant shall suffer substantial loss if execution pending review is not stayed.

v) That the Applicant has high chances of success in the Application for review.

vi) That it is just and equitable that this Application be granted.

## *1st Respondent's Evidence;*

- *3.* Susan Munabi the lawful Attorney of the 1st Respondent in her Affidavit in reply of the Application on the 18th day of April, 2024 stated as follows; - i) That the Respondent has been informed by her lawyers' M/s Luzige, Kavuma and Co. Advocates which information she verily believes to be true that they will raise a preliminary point of law at the hearing of this Application. - ii) That in specific reply to paragraph 2 of the Affidavit in support, the 1st Respondent was not a party to the said suit and that she never got to know of the same suit. - iii) That the 1st Respondent owned a Kibanja on the land comprised in BUSIRO FRV 1006 FOLIO 13 Plot 8- 12/8A-12A. - iv) That the 1st Respondent realized that the 4th Respondent had advertised the suit land for sale. - v) That the 1st Respondent filled a suit for the protection of her interests against the 2nd, 3rd, and 4th Respondents.

- vi) That the parties entered into a consent and her interests were paid off. - vii) That the purchaser took possession of the suit land and started to utilize the same.

#### **2 nd Respondents Reply;**

- 4. Kibwika Sharon the Director of the 2nd Respondent and duly authorized to depone on behalf on the 3rd Respondent who has duly consented and authorized her to swear on his behalf. - i) That the 2nd Respondent has been advised by her lawyers that this Application is incurably defective on the account that; - ii) That the orders sought are moot and this Application is overtaken by events as the consent judgement in HCCS 1117 of 2023 has already been executed. - iii)That the purported lawful attorney has no authority and capacity to institute this application since he does not possess a valid power of attorney attached on the application at the time of filing this application in this Honorable Court. - iv) The Applicant has no capacity to institute this application for lack of a valid grant of letters of administration to the estate of the late M. N Sepiriya before this Honorable Court.

- v) That Nelson Dhikikirwa has no locus standi, capacity or authority to institute this application nor depone the affidavit in support of the Application since the alleged donor of power of attorney is also a delegatee by virtue of her allegedly being an administrator to the estate of the late M. N Sesiriya and therefore can't purport to delegate it. - vi) That the Applicant is not a party to Civil Suit No.1117 of 2023, has no interest in the suit land and therefore lacks locus to challenge the consent judgement arising there from. - vii) That the Applicant has no cause of action against the 2nd Respondent since he purports to hold a power of attorney obtained from an administrator to the Estate which power of attorney if any are null and void. - viii) That the Applicant has not deposited or shown willingness to deposit the mandatory security for due performance of the Orders seeking to challenge or any auxiliary orders there from. - ix)That it offends rules of pleadings, the affidavit in support of this Application contains falsehoods, contradictions, hearsay, it is argumentative, prolix, depone on matters that are not

within his knowledge and hence it ought to be struck out with costs.

- x) That the application raises issues of fraud and other illegalities which cannot be duly adjudicated upon by this Honorable Court through Affidavit evidence. - xi)That the Application is an indirect way of challenging the Mortgage between the 2nd and 4th Respondents which is not only illegal but a wrong and irregular procedure unknown to the law. - xii) That save herein admitted, the 2nd Respondent denies each and every allegation contained in the Applicant's Affidavit in support of the Application. - xiii) That in specific reply to paragraphs 17 and 18 of the Applicant's affidavit in support, the 2nd Respondent has been advised by her lawyers that when the Applicant withdrew the suit against the 4th Respondent at the time when the suit land was mortgaged it meant that the 4th Respondent was free to realize the collateral security to the mortgage and at liberty to dispose off the same. - xiv) That in specific reply to paragraphs 30 and 31, the 2nd Respondent states that the suit land was lawfully transferred

to the 5th Respondent who is in actual possession and occupation of the said land.

- xv) That the said land initially belonged to the 2nd Respondent who lawfully mortgaged it to the 4th Respondent prior to its disposal to the 5th Respondent. - xvi) That in specific reply to paragraph 32, 33, 34 of the affidavit in support, the Applicant has no interest at all in the said land and nor does he have any plausible interest worthy protection of court. That he is an impostor and purports to be an attorney of a non-existent person. - xvii) That in reply in paragraphs 35, 36, 38, 39, 40,41 and 43 of the affidavits in support, the Applicant will not suffer any damage or loss since he has never been in possession of the said land, does not have any document proving ownership of the said land and have no protectable interest in the said land at all. - xviii) That in specific reply to paragraph 37, there's nothing to execute and as such nothing can be stayed since the land was already transferred and no evidence that there is a pending execution to be stayed.

#### *4th Respondent's Reply;*

5. Brenda Kyokwijuka, the Manager Legal Services and Governance of the 4th Respondent in her reply dated 24th April, 2024 stated as follows;

i) That by the advice of her lawyers Kampala Associated Advocates, the Applicant has no locus to bring this Application.

ii) That the Applicant has no cause of action against the 4th Respondent.

iii) That in 2018, the 4th Respondent was approached by the 2nd Respondent for a facility of the sum of UGX 550,000,000/=.

iv) That the 2nd Respondent informed the 4th Respondent that it would among other securities, pledge its property comprised in FRV 1006 Folio 13, Plot 8A-12A Busiro Busambaga Crescent, Wakiso District.

v) That the 4th Respondent went on to conduct due diligence on the suit land at the Lands Registry before accepting the said land as security for the loan facility.

vi) That the 4th Respondent's legal mortgage was duly registered on the Certificate of Title for the suit land on the 10th of August 2018 under instrument number WAK00184834.

vii) That on the 20th January 2023, the Applicant prayed that the 4th Respondent be struck off the Plaint. viii) That there's no court order prohibiting the 4th Respondent as a legal mortgagee from exercising its statutory powers over the suit land to recover the outstanding loan amounts owed to it, due and payable by the 2nd respondent.

ix) That the 4th Respondent executed the consent judgement in CS NO.1117 of 2023 to ensure that the proceeds from the sale of the suit land by the 2nd Respondent were utilized for the payment of all outstanding loan amounts owed under the loan facilities advanced to the 2nd Respondent by the 4th Respondent.

x) That following the court's endorsement of the consent judgement and sale of the suit land and settlement of the outstanding loan amounts, on 20th March 2024, the 4th Respondent issued the Release of mortgage and discharged its mortgage previously created under the suit land.

xi) That on 21st March 2024, the 4th Respondent handed over both the Release of mortgage and the 2nd Respondent's Duplicate Certificate of title of the suit land.

xii) That the 4th Respondent lawfully released the mortgage previously held over the suit land following the payment of all the outstanding loan amounts owed by the 2nd Respondent.

#### **5 th Respondent's Reply;**

- 6. Mr. Mukiza Valley, the 5th Respondent in his affidavit in reply dated the 18th day of April, 2024 stated as follows; - i) That the 5th Respondent has been advised by his lawyers that this application is incurably defective on the account that; - ii) That the orders sought are moot and this application is overtaken by events as the consent judgement in HCCS 1117 of 2023 has already been executed. - iii)That the purported lawful attorney has no authority and capacity to institute this Application since he does not possess valid powers of attorney before this Honorable Court. - iv) That the Applicant has no capacity to institute this application for lack of a valid grant of letters of administration to the estate of the late M. N Sepiriya before this Honorable Court. - v) That Nelson Dhibikirwa has no capacity or authority to depone the affidavit in support of the application since the alleged donor is also a delegatee by virtue of alleged grant and therefore cannot purport to delegate it.

- vi) That the Applicant is not party to civil suit No.1117 of 2023, has no interest in the suit land and therefore lacks locus to challenge the consent judgement arising there from. - vii) That in specific reply to paragraphs 17 and 18 of the Applicant's affidavit in support, the 2nd Respondent has been advised by her lawyers that when the Applicant withdrew the suit against the 4th Respondent at the time when the suit land was mortgaged it meant that the 4th Respondent was free to realize the collateral security to the mortgage and at liberty to dispose of the same. - viii) That in specific reply to paragraphs 30 and 31, the 5th Respondent states that he is the registered proprietor of the land comprised in FRV 1006 Folio 13 Plot 8a-12a at Katabi Busambaga- Crescent Entebbe Municipality and that he is in possession and occupation of the said land. - ix)That the 5th Respondent purchased the said land from the mortgagee, NCBA Bank Ltd, the 4th Respondent herein with the consent of the former registered proprietor, the 2nd Respondent/ Mortgagor, all parties who had interest therein under sanction of the court vide HCCS NO 1117 of 2023.

- x) That prior to the purchase of the said land on 28th February, 2024, the 5th Respondent conducted a search both in the land registry and on locus before purchasing the said property and found no encumbrance save for the said mortgage. - xi)That this application raises issues of fraud and other illegalities which cannot be adjudicated upon by this Honorable Court through affidavit evidence. - **7.** The applicant filed affidavits in rejoinder.

### *Representation;*

8. The applicant was represented by Mukuve Mugaga of Mukuve & Co. Advocates whereas Kyazze Fahad of Luzige, Lubega, Kavuma & Co. Advocates for the 1st respondent, David Kasadha of Kasadha & Partners Co. Advocates for the 2nd and 3rd respondent, Akampurira Patience and Hannat Nabagala of Kampala Associated Adbvocates for the 4th respondent and Kisekka Lawrence and Mwanje Lawrence of Imran Advocates & Solicitors for the 5th Respondent.

### **ISSUES**

**1. Whether the Applicant has locus to apply for interim stay of execution?**

## **2. Whether the applicant has met the requirements for grant of an interim order of stay?**

Determination of this application

### **PRELIMINARY OBJECTION**

- 9. Before proceeding to consider the merits of this application, I deem it proper to first dispose of the preliminary point raised by the respondents in their affidavits in reply and elaborated in their submissions. The preliminary point relates to the applicant's locus to bring the instant application. - 10. I shall consolidate the arguments presented by all counsel collectively, given their interrelated nature. - 11. Counsel for the 2nd, 3rd, 4th and 5th respondents submitted that the applicant is suing as a lawful Attorney of Rose N Namukasa who is the Administrator of the Estate of M. N Sesiriya suing through her lawful Attorney Nelson Dhibikirwa. - 12. That Nelson Dhibikirwa the purported lawful attorney of the applicant has no locus standi to institute this application, the substantive application, the main application or the main suit vide HCCS No.31 of 2014. The affidavit in support and all other affidavits in other applications are incurably

defective. Counsel relied on **Dima Dominic v Inyani & Anor HCCS No 17 of 2016**.

- 13. That the purported Lawful Attorney has no valid powers of Attorney before this court and Order 3 rule 2 of the Civil Procedure Rules permits a person to institute proceedings on behalf of the party if they possess powers of attorney. Counsel added that it is only logical that the said powers are attached to the pleadings to enable the opposite party and the court to verify the authenticity and scope of the said powers. It is not enough to make an averment of the same in the pleadings. Counsel relied on **Samuel Mubiru Kizito v Edward Sekabanja Kato T/A Sekabanja and Co Advocates MA No 1844 of 2022.** - 14. The applicant did not also attach letters of Administration to the application or any application before this court and purports to delegate administration. Counsel relied on Section 264 of the Succession Act Cap 162. - 15. Counsel also added that by the applicant being a delegate, an administrator of an estate could not delegate her powers. That this falls under the principle of delegata potestas non potest delegari meaning no delegated powers

can be further delegated. Counsel relied on **Kasozi & Ors v Attorney General & Ors (Constitutional Petition No. 37, 40 and 48 of 2010) [2015] UGCC 4 (29th September 2015), Nakabuye Agnes v Martin Strokes and Anor Miscellaneous Cause No.38 of 2021), Kampala Financial Services Ltd v Commissioner Land Registration Misc Cause No 149 of 2020 and Juliet Bbosa Namitala v Louis Bakyenga and 3 Ors Misc Application No 1535 of 2021.**

- 16. From the foregoing, the powers of attorney allegedly given to Nelson Dhibikirwa by the applicant are void as the applicant, by virtue of being an administrator of an estate, has no powers to delegate her mandate. - 17. Counsel for the applicant in reply to the preliminary objection raised by the respondents submitted that it is true that an administrator of an estate has no powers to delegate his or her authority as administrator of an estate as it relates to affairs of distribution and management of the estate. That the position is different when it comes to representation in court. The court recognizes lawful attorneys as proper recognized agents of all parties to suits under Order 3 rule 2 (b) of the Civil Procedure Rules and that any party to the suit

including and administrator can appoint by way of a power of attorney a recognized agent to represent them in court. Counsel for the applicant maintained that representing an administrator in court is not the same as managing an estate on their behalf. He added that in the instant case Nelson Dhibikirwa has been appointed to represent the applicant in court and that his representation does not involve the distribution or management of property therefore it does not offend the Succession Act. That most of the cases cited by counsel to prove this fanciful theory were decided by my learned sister and brother to wit Justice Henry Kaweesa, Justice Nkonge Rugadya and Justice Flavia Nassuna and that these authorities do not bind this court

- 18. Counsel for the applicant further submitted that a power of attorney is herewith attached on the submissions and marked A and the it is already attached on the head suit (Civil Suit No 31 of 2014). That the letters of administration are attached marked "B" on the submission and on the head suit. - 19. Counsel for the applicant invited court to overrule this point of law.

20. Locus standi means a right or ability to bring a legal action to a court of law or to appear in court, essentially it is a right to be heard. In the case of **Hon. Katuntu & Another v. MTN Uganda Ltd & Others, H. C. C. S No. 248 of 2021,** it

was stated that locus standi as defined by Osborn's concise law Dictionary 11th Edition is, simply; *"A place of standing;*

### *The right to be heard in a court or other proceeding."*

- 21. Locus Standi, the legal concept granting standing or the right to bring an action before court, is not merely a procedural technicality but a cornerstone of justice, ensuring that only those with a genuine stake in the matter can seek redress. It symbolizes the balance between access to justice and the orderly administration of the law, ultimately safeguarding the integrity and fairness of the legal system. - 22. I have perused the application of the applicant and the title reads as follows;

# *"ROSE N NAMUKASA (Administrator of the Estate of the late M. N Sesiriya) (Suing through her lawful Attorney Nelson Dhibikirwa)"*

23. This simply means that Rose N Namukasa the purported administrator of the Estate of the late M. N Sesiriya appointed Nelson Dhibikirwa to be her lawful attorney for purposes not known but purportedly include bringing actions on behalf of Rose N Namukasa.

### **What is the legal status of such power of attorney?**

# 24. **The Black's law Dictionary 2nd Edition** defines Power of Attorney as when legal authorization is given to another person or an instrument authorizing a person to act as the agent or attorney of that person granting it.

- 25. In the instant case, it can be deduced from the title of the application that Rose N Namukasa appointed Nelson Dhibikirwa as a lawful attorney to bring the application on her behalf in her capacity as Administrator of the Estate of the Late M. N Sesiriya. This in my view is a delegation of authority. - 26. **The Black's Law Dictionary 2nd** edition defines delegation of authority as a transfer of authority from one person to another and delegation as the entrusting of another with a general power to act for the good of those who depute him. - 27. **Section 180 of the Succession Act Cap 162** as amended provides thereof that the executor or administrator,

as the case may be, of a deceased person is his or her legal representative for all purposes, and all property of the deceased person vests in him or her as such.

- 28. **Section 264 of the Succession Act Cap 162** as amended provides thereof that after any grant of probate or letters of administration no person other than the person to whom the same has been granted shall have the power to sue or prosecute any suit or otherwise act as a representative of the deceased until the grant has been recalled or revoked. - 29. From the aforementioned sections, it appears to this court that the powers of an administrator cannot be delegated not even by a duly executed power of attorney. - 30. I have perused the affidavits in rejoinder by the applicant especially Paragraph 3 where it is stated that the power of attorney is herewith attached and marked annexure "A". However, the affidavit does not have the said attachments as alluded to by the applicant. Counsel for the applicant attached the power of attorney on his submissions in rejoinder and in reply to the preliminary points of law raised by the respondents.

31. The position of the law was settled by Hon. Justice Alexandra Nkonge Rugadya in **Kampala Financial Services**

**v Commissioner Land Registration Misc Cause No.149 of 2020** cited with approval in **Nakabuye Agnes v Martin Strokes and Anor Misc Cause No.38 of 2021** where the learned judge stated that;

## *"An administrator has no power to delegate his or her mandate"*

- 32. In light of the foregoing, I am of the opinion that any purported power of attorney, if indeed executed, is inherently invalid insofar as it attempts to confer upon Nelson Dhibikirwa the authority or powers of an administrator. - 33. In addition, the powers of attorney the document that confers the capacity through which Nelson Dhibikirwa brings this matter is not attached to this application, however it is annexed to the submissions in rejoinder by counsel for the applicant. - 34. It is a settled position of the law that a party should be clothed with locus standi at the time of commencing an action regardless of the mode. This now leaves the court to guess whether the applicant has authority or if he had, whether he

# still has the same. **(See Fakhruddin Vallibhali Kapasi & Anor v Kampala District Land Board & Anor, HCCS No 570 of 2016) (Samuel Mubiru Kizito v Edward Sekabanja Kato**

### **T/A Sekabanja and Co Advocates MA No. 1844 of 2022)**

- 35. Counsel for the applicant in his submissions maintained that the powers of attorney and letters of administration were attached to the head suit (Civil Suit No.31 of 2014). I do not find this a sufficient reason not to attach documents that confer authority to the Nelson Dhibikirwa. It cannot therefore be brought forward to cure the want of locus on the part of the applicant in this case. **(See Fakhruddin Vallibhali Kapasi & Anor v Kampala District Land Board & Anor, HCCS No 570 of 2016)** - 36. I find the position in the **Samuel Mubiru Kizito (supra)** good law and I see no reason to depart from it. In that regard, the applicant has not established locus standi to bring this application as a lawful attorney of Rose N Namukasa before this court. - 37. In paragraph 5 of the affidavit in rejoinder by the applicant, it is stated that the applicant is an administrator of the estate of the late Musubika and a beneficiary as well.

No grant of letters of administration is attached to the affidavits. It is not enough for one to state that he or she is an administrator of an estate of a deceased person in absence of a grant. Again counsel for the applicant maintained that the letters were attached to the head suit which head suit I believe has no nexus to this application when it comes to matters of locus standi. In my view, averring that the said letters of administration are attached on the head suit which head suit the instant application does not even emanate from is not sufficient reason for not attaching them on the application at the time it was filed. Is it counsel for the applicant's case that he left it for the court to presume locus standi based on annexures in an earlier matter filed in court? Court shall not descend into the arena in a matter that is not for determination before it.

38. I need to reemphasize the position of the law that submissions are not evidence neither are any of the annexures attached to them of any evidential value. The evidence can be brought through other avenues and not by attaching it to the submissions. **(See Ngabire Bena v**

## **Malongo Subcounty Local Government Misc Application No. 062 of 2020)**

- 39. This court cannot therefore satisfy itself on the authority of Rose N Namukasa as Administrator of the Estate of the late M. N Sesiriya. It thus follows that since the application is brought by Rose N Namukasa in her capacity as administrator of the deceased's estate and not as beneficiary or both (the title of the application speaks to this fact), the suit cannot be maintained in her names and in her capacity as administrator in absence of evidence of that authority. - 40. Upon determining the invalidity of the powers of attorney granting authority to Nelson Dhibikirwa to initiate the present application, and considering the absence of a grant for letters of administration to Rose N Namukasa, the application fails on grounds of lack of locus standi. - 41. The application is hereby dismissed with no orders as to costs.

**I SO ORDER.**

**…………………………..**

**NALUZZE AISHA BATALA**

**JUDGE**

**02 /05/2024**