Nanyanzi v Nalubega (Originating Summons 2 of 2019) [2022] UGHCFD 34 (14 June 2022)

## **THE REPUBLIC OF UGANDA**

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

#### **(FAMILY DIVISION)**

#### **ORIGINATING SUMMONS NO. 02 OF 2019**

## **IN THE MATTER OF THE ESTATE OF THE LATE NANDAULA ROSE ARISING OUT OF ADMINISTRATION CAUSE NO. 1329 OF 2017**

#### **AND**

#### **IN THE MATTER OF THE SUCCESSION ACT, CAP 162**

#### **BETWEEN**

**NANYANZI HANISHA …………………………. APPLICANT/PLAINTIFF (Administrator of the Estate of the late Nandaula Rose) AND**

**NALUBEGA PROSSY……………………… RESPONDENT/DEFENDANT**

#### **RULING**

#### **BEFORE: HON. LADY JUSTICE ALICE KOMUHANGI KHAUKHA**

#### **Introduction**

This ruling is in respect of an application brought by way of Originating summons under Order 37 Rules 1 and 8 of the Civil Procedure Rules. The application seeks for determination of the following questions/and or issues:

1. That the rights and interests of the applicant as a beneficiary or *cestui que* trust of and under the estate of her late mother NANDAULA ROSE have been greatly prejudiced occasioning a miscarriage of justice through the continued stay, occupation and/or possession of the deceased's rental houses by the Respondent without the Applicant's, beneficiary and/or administrator of the estate of the deceased's consent and/or permission.

- 2. That all the acts done, transactions carried out or dealings made by the respondent in respect of the estate as a care taker of the deceased's properties or estate in the same way illegal and unlawful or otherwise null and void without any force of law having done so without the Applicant's consent or permission. - 3. That in the alternative but without prejudice to the above, the respondent as a care taker of the late NANDAULA ROSE's estate has misapplied and/or subjected to loss or damages to the prejudice of the beneficiary of the estate of the deceased and also the applicant herein by: - a) Failing to remit the proceeds of rental fee from the above said houses on the kibanja at Makindye Mubaraka Zone to the beneficiary and/or applicant; - b) Refusing, failing, omitting and/or neglecting willfully, intentionally or recklessly to declare the proceeds out to the rental houses of the abovementioned houses and thereafter to furnish to the applicant herein. - 4. That in the further alternative, the respondent as a care taker of the estate of the late NANDAULA ROSE be directed to give vacant possession and/or vacate the said boys' quarters, abstain from collecting any rental fees from tenants in occupation of the deceased's estate or doing any act in any such capacity. - 5. That further in the alternative, the respondent does pay into court the proceeds out of rent collection from the time of death of the late NANDAULA ROSE.

### **Appearance and Representation**

When the application first came up for hearing on **6 th May 2019**, the applicant was not in court but she was represented by Counsel Ellen Najjuma of Najjuma, Nakalule & Co. Advocates while the respondent was neither in court nor represented.

### **The application**

The application is supported by the affidavit and supplementary affidavit of the applicant, a one Nanyanzi Hanisha. The respondent, Nalubega Prossy did not file an affidavit in reply despite the fact that there is evidence that she was served with the pleadings. Counsel for the applicant made oral submissions which have been considered in this ruling.

#### **Facts**

The facts as deduced from the pleadings are as follows:

Nanyanzi Hanisha (hereinafter referred to as **the applicant**) is the only surviving child of the late Nandaula Rose (hereinafter referred to as **the deceased**) who died intestate on 24th December 2016. The applicant applied and was granted Letters of Administration for the deceased's estate on 6th September 2018. At the time of her death, the deceased left behind properties which included a kibanja in Mubaraka Zone, Makindye 1 Parish, Makindye Division on which she had constructed a residential house in which her and the applicant resided and boys' quarters too. Nalubega Prossy (hereinafter referred to as **the respondent**), a sister to the deceased allegedly appointed herself a caretaker of the estate of the deceased since the applicant was still a student at the time the deceased passed and started collecting rent from the houses left behind by the deceased. However, even after the applicant obtained Letters of Administration to manage the said estate, the respondent continued to stay and collect rent from the tenants occupying the main house without the consent or permission of the applicant to her detriment. The respondent also refused to vacate and/or stop occupying the boys' quarters forming part of the deceased's estate and has also denied the applicant from accessing money for rent yet it is the only source of sustenance and livelihood the applicant remained with. The applicant prayed for the following declarations and orders:

- i. That the applicant is the lawful administrator and/or beneficiary to the estate of the late NANDAULA ROSE; - ii. That the respondents' possession and utilization of the boy's quarters forming part of the estate of the late NANDAULA ROSE without the administrator of the deceased's estate and/or beneficiary's consent or permission is illegal; - iii. OR ALTERNATIVELY, the respondent does pay and/or remit the proceeds out of rent collection from the deceased's estate into court as money had and received or obtained illegally; - iv. That this honourable court does issue an order to the applicant to give quiet possession and/or vacate the said boys' quarters forming part of the deceased's estate and to restrain from ever again collecting rental fees from the tenants occupying the said residential house on the deceased's kibanja; - v. That consequential or any other reliefs as may seem just, equitable and proper be granted; and - vi. That costs of this suit or incidental thereof be awarded to the applicant.

Counsel for the applicant submitted that the questions raised in the applicant's affidavit should be answered in the affirmative, the applicant should be found to be the lawful beneficiary and the acts of the respondent be found illegal as she has no Letters of Administration over the property. Vacant possession should be rendered to the applicant.

#### **Resolution**

Upon perusing the file, I noticed that the application was wrongly brought under Order 34 rules 1 and 8 of the Civil Procedure Rules (CPR) which deals with interpleader proceedings instead of Order 37 rules 1 and 8 of the CPR which deals with Originating Summons.

However, Article 126 (2) (e) of the Constitution of the Republic of Uganda and Section 98 of the Civil Procedure Act (CPA) require substantive justice to be administered without undue regard to technicalities and gives court inherent powers to make such orders as may be necessary to meet the ends of justice respectively, I will treat this as a technicality and/or a typing error in the interest of justice.

On the other hand and as I have already pointed out, the defendant/respondent, Nalubega Prossy did not file an affidavit in reply despite the fact that there is evidence that she was served with the pleadings. An affidavit of service dated 17th April 2019 was filed on Court's record and I had an opportunity of reading it. I am convinced that effective and proper service was made upon the respondent. A picture of her receiving the pleadings was attached thereto also. In absence of any other evidence, it is therefore presumed that all the facts as stated in the applicant's affidavit in support and supplementary affidavit are accepted by the respondent. Consequently, this application binds the respondent. This court presumes that the respondent admitted all the facts as contained in the application. (*See: Samwiri Mussa Versus Rose Achen [1978] HCB 297 and Ayisa Nassuna & Anor Versus Commissioner Land Registration High Court (Land Division) Miscellaneous Cause No. 07 of 2020)*

I have had the opportunity of looking at the certified copy of the Letters of Administration issued to the applicant by this honourable Court and I am convinced that the applicant is the true and only administrator of the estate of the late NANDAULA ROSE. As such, she is the only one entitled to administer the said estate.

In the premises, the questions raised in the application are all answered in the affirmative and the following orders are made thereto:

- 1. that the applicant is the lawful administrator and/or beneficiary to the estate of the late NANDAULA ROSE; - 2. that the respondents' possession and utilization of the boy's quarters forming part of the estate of the late NANDAULA ROSE without the applicant's (administrator of the deceased's estate and/or beneficiary) consent or permission is illegal; - 3. that the respondent pays the applicant all the monies that she has obtained from rent collection from the time she started doing so to date as it was obtained illegally; - 4. that the respondent vacates the boys quarters forming part of the deceased's estate and gives quiet possession of the same to the applicant; and - 5. that the respondent is restrained from ever again collecting rental fees from the tenants occupying the residential house on the deceased's kibanja.

I make no orders as to costs.

# **Dated at Kampala this 14th day of June 2022.**

……………………………….. Alice Komuhangi Khaukha **JUDGE.**