Wakilii

Administrator General & 2 Others v Kisambira & 2 Others (Civil Suit 145 of 1995)

High Court · [1999] UGHC 35 · 1999 Application Granted — Ex Parte Judgment Set Aside AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Administrator General to set aside ex parte judgment and decree against deceased 3rd defendant and for leave to file late defence
Decision
Ex parte judgment set aside; suit against deceased 3rd defendant struck out as null and void

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A suit filed against a person known to be dead at the time of filing is a nullity. Under the Civil Procedure Rules, there is no power to substitute executors or administrators for a deceased defendant where the suit was commenced in the name of the deceased. The proper procedure is to sue the legal representative directly. The court set aside the ex parte judgment and decree against the deceased 3rd defendant and struck out the suit against him as incompetent, null and void.

Outcome

Ex parte judgment set aside; suit against deceased 3rd defendant struck out as null and void

Facts

The late Bulkhani Nkonge filed suit in 1995 against Abiasali Sentongo for compensation for loss of land. On 14 November 1995, the court allowed joinder of three additional defendants including Joseph Sserunkuma Nkalubo as 3rd defendant. However, the plaintiff knew that Nkalubo had died and the Administrator General had been granted letters of administration to his estate on 4 October 1993. The plaintiff nevertheless proceeded to name the deceased as defendant and obtained substituted service by newspaper publication. The deceased original plaintiff also died on 15 November 1995. His administrators were substituted as plaintiffs and proceeded to obtain ex parte judgment on 4 June 1996 ordering cancellation of the 3rd defendant's name from the certificate of title. On 15 October 1996, the Administrator General applied to set aside the judgment, contending that suing a dead person was improper and that he as legal representative should have been sued instead.

Issues

  1. Whether a suit instituted against a person known to be dead at the time of institution is a nullity.
  2. Whether service of summons by substituted service on a dead person is valid and effective.
  3. Whether the Administrator General as legal representative of the deceased 3rd defendant could be joined or substituted after the suit was filed in the deceased's name.
  4. Whether the ex parte judgment and decree entered against the 3rd defendant should be set aside.

Orders

  • The ex parte judgment and order of this court dated 4.6.1996, so far as it affects the 3rd defendant, be and is hereby set aside.
  • The suit against the 3rd defendant be and is hereby struck out as incompetent, null and void.
  • Each party shall bear his own costs of this application.

Rules and key headnotes

Civil Procedure — Parties — Suit Against Deceased Person — Nullity
A suit instituted in the name of a dead person, where the plaintiff has prior actual knowledge that the person is deceased, is a nullity and all proceedings founded thereon are void.
Civil Procedure — Service — Substituted Service on Dead Person
Substituted service contemplates service on a living person who is difficult to reach. There can be no valid substituted service where the party to be served is known to be dead.
Succession & Estates — Legal Representatives — Right to Sue and Be Sued
Under the Law Reform (Miscellaneous Provisions) Act s.13(7) and the Succession Act s.264, the personal representative of a deceased person is the only person with power to prosecute or defend causes of action on behalf of the estate, and no other person may act as representative after grant of letters of administration.
Civil Procedure — Amendment and Joinder — Substitution of Legal Representative for Deceased Party
The Civil Procedure Rules do not permit substitution or joinder of executors or administrators in place of a deceased defendant where the suit was instituted in the name of the deceased. The rules regarding wrong or improper parties apply only to living persons.
Land & Property — Actions for Recovery — Registered Proprietor Deceased
Where a registered proprietor of land is dead, action for recovery must be brought against the personal representative of the deceased's estate, not against the deceased proprietor by name, notwithstanding that the Registration of Titles Act s.184 requires action to be brought against the registered proprietor.
Civil Procedure — Inherent Powers — Setting Aside Nullity
Under the inherent jurisdiction of the court and s.101 of the Civil Procedure Act, the court may and should set aside its own orders where the proceedings constitute an illegality or nullity, and illegality once brought to the court's attention overrides all questions of pleading including consent.
Civil Procedure — Execution — Execution Under Void Judgment
The fact that a judgment has been satisfied and execution completed is not a bar to quashing a judgment which was a nullity, since execution completed under such a judgment is void ab initio.

Legislation cited (18)

Cases cited (11)

  • Kalori Mubiru & 21 Others v Edmund Kayiwa & 5 Others (Civil Appeal No. 3 of 1979)
  • Nanjibhai Prabhudas & Co Ltd V. Standard Bank Ltd. [1968] E.A. 670(CA)
  • Re Dhubullo [1977] H.C.B. 75
  • Francis Xavier Gajuule Makumbi vs. National Insurance Corporation. [1979] H.C.B. 230
  • Mbogo and Another V.Shah (1968) E.A. 93
  • Clay v. Oxford (1866) L.R.2 EX. 54
  • Tetlow v. Orela Limited [1920] 2 ch.24
  • Dawson (Bradford) Ltd and Others V. Dove and Another [1971] 1 Q.B. 330
  • Babubhai Dhanji Pathak v. Zainab Mrekwe [1964] E.A. 24
  • Makula International Ltd vs. Cardinal Nsubuga and Another [1982] H.C.B. 11
  • H.C. Admin. Cause No. 249/85 - Hajjat Nuliati Mukalujemna Adek & Hajjat Maliamu Muteteri Adek vs. Moses Ocititi Omona

Full judgment

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Administrator General & 2 Others v Kisambira & 2 Others (Civil Suit 145 of 1995) [1999] UGHC 35 (27 December 1999)
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.