Senabulya v Nampuuta (Miscellaneous Application 68 of 2008) [2010] UGHCFD 6 (25 May 2010)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA MISCELLANEOUS APPLICATION NO. 68 OF 2008 (Arising From Miscellaneous Application No. 120 of 2008 and HCCS No. 87 of 2008) FAMILY DIVISION JOHN**

#### **VERSUS**

**ANNETT NAMPUUTA .**

### **BEFORE HON. LADY JUSTICE C. A. OKELLO RULING**

The present application arises from Miscl. Application No. 120 of -2008 and HCCS No. 87 of 2008 (the main suit). It seeks for,orders reviewing and or setting aside the orders that were made in Miscellaneous Application No. 120 of 2008. The orders in the said Miscellaneous Application were supposed to be for the attachment of property that form part of the estate of one Yozefu Bukenya deceased. The present application states that the attachment order as framed authorised the bailiff to attach not only the late Bukenya's property, but included property owned by the late Petolalina Nabulya. The applicants as administrators of the late Nabulya's estate felt aggrieved by the ambit of the order, hence this application.

Mr. John Ssenabulya swore an affidavit in support. The respondent ■did not file any affidavit in reply but was represented by counsel at the hearing of the application.

## **Background:**

.1 have already said that this application and Misc. Application No. 120 I of 2008 arose from HCCS No. 87 of 2008. The said suit was filed on the 23/6/2008 by the present respondent against Petolalina Nabulya who was then administering the estate of Yozefu Bukenya. The suit challenged Petolalina Nabulya's *locus standi* to administer the said estate saying that she obtained Letters of Administration fraudulently. Particulars of fraud pleaded included her purporting to be the widow of the late Yozefu Bukenya well knowing that she was not. It was also pleaded that she knew that Bukenya had lineal descendants yet she did not obtain their consent before applying to administer his estate. Mrs. Nabulya never filed her defence in the •suit, I suppose because summons in the suit were not served on her. (I dismissed this suit on the 21/04/2010 under Order 5 rule 1. (3) (b) of the Civil Procedure Rules).

Meanwhile, i.e. Application No. 120 of 2008 was filed on the same day as the main suit. The parties thereto were the same ones in the main suit i.e. Nampuuta Annet Namatovu was the applicant while P. Nabulya was the respondent. The main order applied for was an order appointing Ms. Nampuuta administrator *pendente elite* of Yozefu Bukenya's estate. It appears that the application proceeded ex-parte. At the conclusion of the proceedings, court issued a number of orders; I shall reproduce only those I consider to be crucial to these proceedings.

- *"(a) The Application is allowedand the applicantis hereby appointed the administratorpendente Ute to the estate ofthe late Yozefu Bukenya.* - *(b)* - *(c) The applicant shall have custody and manage all the vehicles belonging to the late Bukenya's estate.* - *(d) The applicantshall collect andmanage all the properties ofthe late Bukenya wherever situated in Uganda.* - *(e) The applicantshall take action against anyperson who mismanages the property ofthe late Bukenya Yozefu.* - *(f) "*

Subsequently, an order was issued to the bailiff to attach properties of the estate of the late Yozefu Bukenya. The list included properties that the order said were being illegally managed by persons who had no authority to have possession thereof, among them were properties subject of this application, *viz.*

- (a) Fuso Truck Registration No. UAH 948M - (b) Toyota Datsun double Cabin Registration No. UAJ 065K **Land:**

Kyadondo Block 216 Plot 3960 Kyadondo Block 216 Plot 3959

#### Kyadondo Block 216 Plot 1218

\*

•I turn to submissions and arguments in the application. Mr. Peter Walubiri appeared for the applicants while Mr. Semakula Munganwa arrived late to represent the respondent. In his submissions, Mr. Walubiri drew my attention to paras of the orders in Miscel. Application 120 of 2008 wherein Ms. Nampuuta was appointed administrator *pendente lite* and the ambit of her authority described or spelt out. Counsel then referred to the affidavit of Mr. Ssenabulya in the present application, in which the deponent stated that the orders gave Ms. Nampuuta authority over properties that were owned by the late Nabulya and now being administered by the applicants.

Mr. Walubiri pointed out that by the time the orders were made, and Bailiff issued orders for attachment, motor vehicles Registration Nos.' UAH-948M and UAJ-065U as well as land comprised in Kyadondo Block 216 Plot 3959, Block 216 Plot 3960 and Block 216 Plot 1218 all at Buye, had ceased to be part of Yozefu Bukenya's estate. These properties had all been transferred to Petolalina Nabulya as beneficiary thereof, and on her death, devolved onto the applicants the administers of her estate. It was argued that if there was any dispute concerning transfers of these properties to Nabulya, the proper procedure to get them returned to the estate of Bukenya .would have been a suit between the administrators of the two 1 estates.

I

Secondly, Mr. Walubiri submitted that the applicants were not heard in Misc. Application No. 120 of 2008, they were not even parties to that proceeding. Yet orders made therein affected the estate they are. administering.

Lastly, it was contended that since the respondent did not file an affidavit in Reply, the contents of the applicants' affidavit in support must be taken as being truthful warranting entitlement to orders sought.

Mr. Semakula Muganwa for the respondent conceded that no affidavit in reply had been filed, but contended that he would argue points of law that did not require filing an Affidavit in Reply. Since the points of law may well dispose off the application, I shall examine them before dealing with the merits of the application.

Mr. Semakula Muganwa's first point of law was that he had not been served the substantive application but was served hearing notice only on the 15/03/2010. Mr. Walubiri replied that Counsel for the respondent had been served, was actually served long ago.

Since Mr. Semakula Muganwa admitted receiving notice of the hearing thirty-seven days before the actual hearing, I consider his first objection to have a lot to do with breach of the regulations governing legal practice, namely the Advocates (Professionals Conduct) Regulations (S. I 267-2) rather than being a sustainable.

legal objection. Under regulation 2(2) of the said Regulations, an advocate is under obligation to among other things, conduct business on behalf of a client with due diligence. Regulation 5 enjoins an advocate to appear in court on behalf of his/her client, and regulation '6 is to the effect that an advocate should generally be personally responsible for the client's work. In the discharge of the duties/obligations under these regulations, learned Counsel for the respondent should have got in touch with his colleague for relevant papers after receiving hearing notice. He certainly had more than enough time to do so without waiting to make that an excuse for not filing an affidavit in reply. His first objection lacks merit, it is dismissed.

The second point of law was *res subJudice.* Mr. Semakula Muganwa submitted that there are two pending suits challenging transfer of •properties from the estate of the late Y. Bukenya, into the names of P. Nabulya i.e. HCCS No 87 of 2008 and 8 of 2008. Nabulya died before the suits were completed and ownership dispute resolved. Counsel argued that the applicants should have applied to be substituted in the suits in place of Nabulya instead of filing a suit.

This objection if proved, would have led to <sup>a</sup> stay of one of the suits except that there was no evidence to prove that there is an earlier suit between the parties over the same subject matter that is pending disposal in another Division of the High Court. This point required evidence in the form an Affidavit in Reply attaching

pleadings in the alleged pending suits to prove it. Secondly, it appears from the court file that Nabulya was never served summons in the main suit. It is possible that she died without knowing of its existence. The applicants could only apply to be substituted in the suit if their predecessor had known of its existence and had been served. This objection is equally misconceived, I dismiss it as well.

Be that as it may in this last objection, the learned counsel for the respondent actually agreed with Mr. Walubiri that there is contention over ownership of some properties that once formed part of the late Yozefu Bukenya's estate but were transferred to the late P. Nabulya. He equally conceded that at least one suit filed to resolve the dispute is still pending hearing. These are admissions that change in ownership status of the properties in dispute should await disposal of the substantive suit(s) filed to resolve the dispute over their "transfers.

Given these concessions, it is obvious that the issue of ownership could not have been determined in an ex-parte application for the appointment of an administrator pendente lite. The orders issued therein should have covered only properties of the late Bukenya that were un-administered by the time first administrator (Nabulya) died. Order (c) in Miscellaneous Application is equally clear that the administrator *pendente Ute* is to take action against person who mismanages the property of the late Bukenya. Although this order is framed in forward-looking mode, I believe that under it, and of

course under the general powers of an administrator, the administrator *pendente Ute* is free to take legal action in respect to past mal-administration and/or misappropriation of estate properties. Short-cuts in the form of orders applied for and obtained ex-parte is not the answer as was done in Miscl. Application No. 120 of 2008. (See Para 6 of Mr. Ssenabulya's affidavit in this application).

This court has powers under section 82 of the Civil Procedure Act and Order 46 rr. 1, 3, and 4 of the Civil Procedure Rules to among other things, review its orders. Since there are grounds for review of orders in Miscl. Application 120 of 2008, I grant this application and make the following orders.

- (1) . The orders made in Misc. Application 120 of 2008 as well as the warrant issued to the Bailiff to attach certain properties are reviewed by excluding from their ambit, these properties that had already been transferred into the names of Petolalina Nabulya as owner thereof and now form part of her estate: - a) Motor vehicle Registration No. UAH 948M. - b) Land comprised in Kyadondo Block 216 Plot 3959 - c) Land comprised in Kyadondo Block 216 Plot 3960. - d) Land comprised in Kyadondo Block 216 Plot 1218. - (2) . The respondent shall pay costs of this application.

(3) . There is no evidence proving that Petolalina Nabulya ever owned motor vehicle Registration No. UAJ 065K, this court will therefore not order a review its ownership.

C. A. Okello Judge •25.05.2010