Wakilii

Abu Kaija and Another v Safina Nanteza (Civil Appeal No.76 of 2020)

High Court · [2024] UGHC 1320 · 2024 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court decision on land ownership dispute, with preliminary objection raised regarding abatement due to respondent's death
Decision
Preliminary objection dismissed; matter adjourned for beneficiaries to obtain legal representative for deceased respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an appeal does not abate where the respondent dies after the notice of appeal is filed but before the memorandum of appeal is lodged, provided the cause of action survives. The court found that filing a memorandum of appeal in the name of a deceased respondent does not render the appeal incompetent by reason only of that fact. The proper course is for beneficiaries to obtain letters of administration and substitute a legal representative for the deceased respondent to enable determination of the appeal.

Outcome

Preliminary objection dismissed; matter adjourned for beneficiaries to obtain legal representative for deceased respondent

Facts

The respondent filed suit in the Chief Magistrate's Court claiming ownership of one acre of land allegedly gifted to her by her uncle Amisi Musoke. She alleged that after Amisi Musoke's death, the appellants (his biological children) evicted her from the land. The trial court found in her favour and awarded her the land, a permanent injunction, and general damages of UGX 8,000,000. The defendants appealed. The respondent died on 25 June 2021, after the notice of appeal was filed (18 December 2020) but shortly before the memorandum of appeal was filed (30 August 2021). Counsel for the beneficiaries of the respondent's estate raised a preliminary objection that the appeal had abated due to the respondent's death and the appellants' failure to have a legal representative appointed.

Issues

  1. Whether the Appeal abates at the death of the Respondent

Orders

  • The Appeal has not abated by reason of the death of the Respondent
  • The beneficiaries/family of the Respondent are directed to commence the process of getting a legal representative to enable determination of this matter
  • Costs in the cause

Rules and key headnotes

Civil Procedure — Abatement of Suits — Death of Party — Survival of Cause of Action
The death of a plaintiff or defendant does not cause a suit to abate if the cause of action survives or continues, and in applying Order 24 of the Civil Procedure Rules to appeals, 'plaintiff' includes an appellant, 'defendant' includes a respondent, and 'suit' includes an appeal.
Civil Procedure — Appeals — Death of Respondent — Competence of Appeal
An appeal is not incompetent by reason only that a memorandum of appeal was filed in the name of a deceased respondent after the respondent's death, where the notice of appeal was filed while the respondent was alive and the appellants acted diligently in serving the family or beneficiaries of the estate.
Civil Procedure — Substitution of Parties — Death of Respondent
Where a respondent dies and the cause of action survives, the proper course of action is for the beneficiaries or family to commence the process of obtaining a legal representative who can then be substituted for the deceased respondent in order for the appeal to be determined.

Legislation cited (7)

Cases cited (1)

  • Babubhai Dhanji Pathak v Zainab Mrekwe [1964] EA 24

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Abu Kaija and Another v Safina Nanteza (Civil Appeal No.76 of 2020) [2024] UGHC 1320 (11 March 2024)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.