Sendawula Mbuga v Mageno Owori and 2 Others (Civil Suit No. 242 of 2008) [2009] UGHCLD 1 (4 November 2009)

## **THE REPUBLIC OF UGANDA**

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

### **CIVIL SUIT NO. 242 OF 2008**

SENDAWULA MBUGA WILFRED PLAINTIFF

#### VERSUS

| 1. | CHARLES<br>GABRIEL<br>MAGENO<br>OWORI | ) | | | |----|---------------------------------------|---|------------|--| | 2. | GREENLAND<br>BANK<br>LTD. | ) | DEFENDANTS | | | | (In<br>Liquidation) | | | | | 3. | MAGEZI<br>MOHAMED | ) | | | | | | | | |

#### **BEFORE: HON. JUSTICE RUBBY AWERI OPIO**

## RULING

The When this matter was called for scheduling conference Mr. Walukaga, Counsel for the Defendants raised a preliminary objection on point of law on behalf of 2nd and 3rd Defendants. Mr. Walukaga contended that the 15 Plaintiff had no locus standi to bring this suit on behalf of the estate of the late Edron Sempira because of lack of Letters of Administration, learned Counsel referred to Section 191 of the Succession Act which provides that no right to any part of the person who died intestate shall be established in any court unless Letters of Administration have been sought2j) and granted by court of competent jurisdiction.

Mr. Walukaga contended that since in paragraph <sup>3</sup> and *4 of* the amended plaint the Plaintiff was seeking to recover property of a deceased person and that since the Plaintiff did not obtain Letters of Administration or probate he could not bring this action against the 2nd and 3rd Defendants.\*?^

He relied on the case of KOTHARA v QURESHI & Another [1967] EA 566, where it was held inter alia that the rights of an administrator dates from the time he is granted Letters of Administration. According to Mr. Walukaga, it follows that one cannot file an action before obtaining Letters of Administration. He submitted that the only exception was where there QJ3 was proof that the Plaintiff had commenced the process of obtaining Letters ofAdministration or was an executor of a will ofthe deceased. The learned Counsel contended that the above principles were espoused by the Supreme Court in Israel Kabwa v Martin Banoba Musiga; Supreme Court Civil Appeal No. 52 of 1995 (unreported).

Mr. Kwarisiira Wilson who appeared for the Plaintiff opposed the preliminary objection and contended inter alia, that the Plaintiff's claim as stated in paragraph <sup>3</sup> and 4 ofthe amended plaint was based on his being a beneficiary and one in occupation of the suit premises. As such the Plaintiff was entitled to institute this suit even without Letters of U=> Administration. He relied on the case of Israel Kabwa (Supra) and contended that it was cited out of context.

I have perused the submissions of both Counsel. I have also perused the relevant sections of the law cited together with the case laws cited before me.

Section 191 of the Succession Act was cited out of context because that section has exceptions in the Administrator General's Act and in the Succession Act itself. Among the exceptions are the interest of the beneficiaries. The beneficiaries can protect their interest by going to court without Letters of Administration or probate. This was espoused by Hon/yL5 Justice Tsekooko in Israel Kabwa (Supra). The learned Judge held that in terms of Section 28 (1) (a) and 28 (2) of the Succession Act [now Section 27 (1) (a) and 27 (2)] a beneficiary can institute a suit to protect his interest

*2*

without first obtaining Letters of Administration or probate since he was entitled to 76% or more of his father's estate. In that regard the court ruled that the interest of the beneficiary to the land and his developments did not depend on the Letters of Administration.

In my view the decision in Israel Kabwa (Supra) puts to rest the S preliminary objection and further renders the case of Kothara (Supra) irrelevant. The Plaintiff did not move this court as an administrator of the estate or executor. He merely came in as a beneficiary to the estate of his late father. At the moment the onus is on the Plaintiff to adduce evidence to show that he is the son to the late to entitle him under Section 28 of the $\mathbb{N}$ Succession Act, to the estate of the deceased. At this stage it is speculative to say that the Plaintiff is a mere Tom Dick and Harry and not the son of the deceased. That is a question of evidence yet to be adduced.

In conclusion Section 191 of the Succession Act is about the duties of administrator – his locus standi dates from the date of the grant of Letters $\sqrt{5}$ of Administration and the doctrine of relation back from the grant. The locus standi of a beneficiary depends on his interest in the estate and not on Letters of Administration.

For the above reasons the preliminary objection is incompetent and was poorly conceived in view of the land mark pronouncements by Justice D Tsekooko in Kabwa's case (Supra) which the learned Counsel was comfortable to quote. Preliminary objection is overruled with costs to the Plaintiffs.

HON. JUSTICE RUBBY AWERI OPIO **JUDGE**

**4/11/2009 6/11/09** - **3.08 p.m.**

Walukaga Isaac for the 2nd and 3rd Defendants present.

1st Defendant present.

3rd Defendant present.

Other parties absent.

Kwarisiima for the Applicant absent.

Clerk Magala.

**Walukaga:** This case is for ruling.

**Court:** Ruling read and delivered in the presence ofthe above.

**A. G. OPIFENI ASSISTANT REGISTRAR**

**6/11/09 3.11 p.m.** **Walukaga: I** intend to appeal against this ruling.

**Court:** This will be addressed before the relevant court at the correct time.

A. **G. OPIFENI ASSISTANT REGISTRAR**

**6/11/09 05**

*?*

**3:12 P. M.**

*/gnm*