Wakilii

Administrator General and Others v Teddy Kisambira and Others (Civil Suit 145 of 1995)

High Court · [1998] UGHC 34 · 1998 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to set aside ex parte judgment and order under Order 9 rule 24, Order 47 rule 6 and Order 48 rule 1 of the Civil Procedure Rules
Decision
Ex parte judgment against deceased 3rd defendant set aside; suit struck out as incompetent, null and void

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A suit instituted or continued in the name of a dead person is a nullity. Where a plaintiff knowingly joins a deceased person as a defendant and obtains judgment against the deceased following substituted service, the judgment is void. The Civil Procedure Rules do not permit substitution of the legal representative for a deceased defendant who was dead at the time the suit was commenced or joinder ordered. The court set aside the ex parte judgment and struck out the suit against the deceased defendant in exercise of its inherent jurisdiction.

Outcome

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

Facts

The late Bulkhani Nkonge filed Civil Suit No. 145 of 1995 against Abiasali Sentongo for compensation for loss of land. On 14 November 1995, the court joined Joseph Serunkuma Nkalubo as 3rd defendant despite the plaintiff's knowledge (stated in the plaint and in testimony) that Nkalubo was dead. The Administrator General had been granted Letters of Administration over Nkalubo's estate on 4 October 1993. Summons were issued to Nkalubo and the court ordered substituted service by publication. When Nkalubo did not appear, the court proceeded ex parte and on 4 June 1996 entered judgment ordering cancellation of his name from the certificate of title. On 15 October 1996, the Administrator General applied to set aside the ex parte judgment and to be joined as legal representative. By consent dated 21 November 1997, the Administrator General was allowed to be added or substituted.

Issues

  1. Whether an ex parte judgment and order obtained against a deceased person who was known to be dead at the time of joinder is valid.
  2. Whether service by substitution can validly be ordered and effected against a person known to be dead.
  3. Whether the Administrator General, as the legal representative of a deceased defendant, can be joined or substituted in a suit commenced in the name of the deceased long after death.
  4. Whether the court has inherent jurisdiction to set aside proceedings instituted against a dead person as a nullity.

Orders

  • The ex parte judgment and order of this court dated 4th June 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 to bear own costs of the application.

Rules and key headnotes

Civil Procedure — Joinder of Parties — Dead Persons — Suit instituted or continued in name of deceased
A suit instituted in the name of a dead person is a nullity. There is no power under the Civil Procedure Rules to amend a plaint by substituting the executors or administrators of a deceased's estate in place of the deceased where the suit was filed or the party joined when the person was already dead.
Civil Procedure — Service of Process — Substituted Service — Service on dead person
Substituted service can only be ordered in respect of a living person who is difficult to reach. There can be no substituted service where the party to be served is known to be dead. Summons issued to and substituted service ordered upon a person known to be dead are null and void.
Succession & Estates — Legal Representation — Causes of Action Surviving Death — Duty to Sue Legal Representative
Under section 13(7) of the Law Reform (Miscellaneous Provisions) Act, the personal representative of a deceased person has the right to defend any cause of action which has survived against the estate. Where letters of administration have been granted, the administrator is the legal representative and must be sued in that capacity, not the deceased in person.
Succession & Estates — Letters of Administration — Effect on Legal Representation
After any grant of letters of administration, no person other than the administrator shall have power to sue or prosecute any suit or otherwise act as representative of the deceased, until such letters have been recalled or revoked. A plaintiff who knew or ought to have known of the existence of a legal representative must sue that representative, not the deceased.
Civil Procedure — Inherent Jurisdiction — Setting Aside Nullities
A court has inherent jurisdiction under section 101 of the Civil Procedure Act to set aside its own orders to prevent abuse of process and to attain the ends of justice. Illegality, once brought to the attention of court, overrides all questions of pleading. A judgment entered against a dead person is void ab initio and may be set aside in exercise of inherent jurisdiction.
Civil Procedure — Joinder and Substitution — Order 1 rules 9 and 10 CPR — Scope and Limits
The power to add, substitute or strike out parties under Order 1 rules 9 and 10 of the Civil Procedure Rules applies only to living persons. The rules do not confer power to substitute the representatives of a person who was dead when the action was commenced or when the party was joined.

Legislation cited (15)

Cases cited (11)

  • Kalori Mubiru and 21 Others v Edmund Kayiwa and 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 and Hajjat Maliamu Muteteri Adek vs. Moses Ocititi Omona

Full judgment

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Administrator General and Others v Teddy Kisambira and Others (Civil Suit 145 of 1995) [1998] UGHC 34 (5 March 1998)
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.