Nyeko v Kitgum Municipal Council (Miscellaneous Application 8 of 2024) [2024] UGHC 1023 (31 October 2024)

## **THE REPUBLIC OF UGANDA**

## **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

## **MISCELLANEOUS APPLICATION No. 08/2024**

# **(ARISING FROM HIGH COURT CIVIL SUIT No. 051/2008)**

# 5 **(Formerly GULU HIGH COURT - CIVIL SUIT No. 052/2008)**

# **NYEKO RONALD JULU APPLICANT**

#### **Versus**

# **KITGUM MUNICIPAL COUNCIL RESPONDENT**

## **RULING**

## 10 **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

#### **Introduction and Background.**

- [1]. The Applicant seeks Orders from this Court firstly appointing him to stand in as Legal Representative in the suit for the now deceased 1st Plaintiff, his late father Mr. George Barnabas Akera, as Administrator of his Estate by 15 virtue of him holding Letters of Administration for his Estate and for purposes of handling and concluding the Main Suit - thus substituting him and secondly making provision for Costs of this Application. - [2]. The Application is instituted by Motion issued on the 9th May, 2024 citing **Sections 64(e) and 98 of the Civil Procedure Act, Cap. 71 (now Cap.** 20 **282); Section 33 (now S. 37) of the Judicature Act, Cap. 13 (now Cap. 16); Order 24 Rule 3 and Order 52 Rules 1 – 3 of the Civil Procedure Rules, SI 71 - 1.** - [3]. These citations were revised by the **Law Revision Act, Cap. 3 and Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7** 25 **th Revised Edition) (Principal Laws) Instrument, 2024**.

#### **The Applicant's Case and Submissions.**

[4]. The Applicant's grounds in the Motion substantiated in his supporting Affidavit are that the suit was filed by his late father, Mr. George Barnabas Akera, as the 1st 30 Plaintiff who is now deceased having passed away in the year 2020 while his uncle is the 2nd Plaintiff; he applied for and was granted Letters of Administration over the 1st Plaintiff's Estate on the 17th August, 2022 which are attached to his Affidavit; the suit being over a land matter founded in trespass, conversion and malicious damage to property survived his late father requiring a substitute for him as the 1st 35 Plaintiff – the Court understands this to mean that the cause of action survives inspite of the demise of the specific Plaintiff for so long as there is a Legal representative therefore requiring substitution of the deceased Party by his Legal representative; and lastly, he is conversant with the matter and capable of prosecuting the suit to 40 its conclusion and this Application has been made without undue delay. The Applicant did not file any Written Submissions.

## **The Respondent's Case and Submissions.**

- [5]. There is no Affidavit in Reply filed by the Respondents nor are there any Written Submissions filed. Thus, no Rejoinders are filed either. - [6]. At the proceedings of the 19th 45 June, 2024 the Respondent represented through its Official that it had no objection to the Applicant replacing his late father as a party in the suit.

## **Representation.**

- [7]. Counsel, Mr. Gabriel Kamugisha Byamugisha, represented the Applicant. The 50 Applicant was present in Court at the proceedings. - [8]. The Respondents did not have Counsel and were represented in Court by an Official, Mr. Otim David, Senior Law Enforcement Officer.

## 55 **Proceedings of the Court.**

[9]. The matter came before the Court for hearing on the 19th June, 2024 and 30th May, 2024.

#### **Issues for Consideration.**

[10]. The Issue for consideration to be addressed by this Court is – **Whether the Applicant has established grounds to replace and substitute the 1st** 60 **Plaintiff as his Legal representative and other Remedies.**

## **Considerations and Determination of the Court.**

[11]. The Applicant brought this Application under **Section 64(e) of the Civil Procedure Act** in respect of supplemental proceedings specifically 65 interlocutory matters, **Section 37 of the Judicature Act** making general provision for remedies and **Order 24 Rule 3 of the Civil Procedure Rules** which is reproduced *verbatim* hereunder and provides –

> **"Procedure in case of death of one of several plaintiffs or of sole plaintiff.**

70 **(1) Where one of two or more plaintiffs dies and the cause of action does not survive or continue to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff 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 plaintiff to** 75 **be made a party and shall proceed with the suit.**

**(2) Where within the time limited by law no application is made under sub rule (1) of this rule, the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the court may award to him or her the costs which he or she may have** 80 **incurred in defending the suit to be recovered from the E state of the deceased plaintiff."**

- [12]. A review of the Record of the Court indicates that the Main Suit was filed on the 28th August, 2008 in trespass in respect of land in Lango East Village in Kitgum Municipal Council and also for conversion and malicious destruction of property. The Defence was filed on the 15th 85 September, 2008. - [13]. The Record of the Court indicates the following progress in the suit: - i. The suit proceedings commenced in November, 2009 which included Scheduling and attempts at amicable settlement as at the 23rd November, 2011. - ii. The Plaintiffs testified on the 24th June, 2010 with the 2 nd 90 Plaintiff, Okot Godfrey, as PW1 and the 1st Plaintiff, Geroge Barnabas Akera, PW2. The Plaintiffs intended to call a Surveyor as their next witness. - iii. The proceedings subsequently stalled and the suit was dismissed for non-appearance of the Parties on the 31st May, 2022.

iv. The suit was reinstated on the 30th 95 January, 2024.

- [14]. The Applicant attached to his Affidavit Letters of Administration issued on the 17th August, 2022 by the Hon. Justice Alex Mackay Ajiji to himself (Nyeko Ronald Julu) as the son of the late Mr. George Barnabas Akera and Ms. Olana Josephine as the Widow – as Co-Administrators. It is on this basis that he seeks to replace the deceased 1st 100 Plaintiff as Party to the suit being his son and Legal representative in Law and to pursue the land matters comprising the subject matter of the suit. There has, however, been no explanation provided for the Co-Administrator not similarly seeking to be Party to the suit. - [15]. A holder of Letters of Administration duly issued (Administrator or 105 Administratrix) over the Estate of a person deceased by virtue of **Section 188 of the Succession Act** assumes all rights belonging to the intestate and is his Legal representative in Law with authority to represent in any litigation by virtue of **Section 261 of the Succession Act, Cap. 268.**

- [16]. The Applicant by virtue of holding Letters of Administration and being the Administrator of the 1st 110 Plaintiff's Estate possesses the necessary credentials to be substituted as his Legal representative to continue with the suit. - [17]. There is no contention as to the survivability or continuity of the cause of action which is essentially in respect of contestations as to ownership of land and therefore is such a cause of action as would generally survive the demise 115 of a litigant and devolve to an Administrator or Administratrix. - [18]. Therefore, the Applicant has successfully established his credentials and entitlement by virtue of the Letters of Administration he holds granting him the stature of Legal representative to replace and substitute the late Mr. George Barnabas Akera as the 1 st Plaintiff in the Main Suit and thereby 120 continue with the litigation to its conclusion. - [19]. Having carefully given due consideration to the Application with its supporting Affidavit(s) and Annextures and considered the Law Applicable and the entire circumstances of this Application, the Court hereby grants the Application to replace and substitute the deceased 1st Plaintiff, Mr. George 125 Barnabas Akera, with his Legal representative the Applicant herein, Mr. Nyeko Ronald Julu, in **High Court Civil Suit No. 051/2008**. - [20]. Each Party shall meet their own costs.

# **Orders of the Court.**

- [21]. Accordingly, the Court makes the following Orders: - - 1. The Application to replace and substitute the deceased 1st 130 Plaintiff, Mr. George Barnabas Akera, with his Legal representative the Applicant herein, Mr. Nyeko Ronald Julu, in **High Court Civil Suit No. 051/2008** is hereby granted. - 2. Each Party shall meet their own costs of the Application. - 135 It is so Ordered.

**Signed and Dated on the 31 st day of October, 2024 at High Court Kitgum Circuit.**

140 **Philip W. Mwaka**

**Acting Judge of the High Court.**

# **Delivery and Attendance.**

This signed and dated Ruling shall on the Directions of the Presiding Judge be delivered to the Parties electronically on the **31 st day of October, 2024** by the 145 Deputy Registrar, High Court Kitgum Circuit.

- 1. Deputy Registrar,

150 4. The Respondent: - Mr. Otim David,

5. Court Clerk at the Hearing: - Mr. Atube Michael.

**Philip W. Mwaka**

155 **Acting Judge of the High Court.**

**High Court Kitgum Circuit.**

**31 st day of October, 2024.**

High Court Kitgum Circuit: - Her Worship Suzanne Aisia Musooli. 2. Counsel for the Applicant: - Mr. Gabriel Kamugisha Byamugisha. 3. The Applicant: - Mr. Nyeko Ronald Julu. Senior Law Enforcement Officer.