Wakilii

Chelbei & Anor v Masai Labu (Miscellaneous Application No. 140 of 2010)

Court of Appeal · [2015] UGCA 4 · 2015 Application Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to reinstate a withdrawn civil appeal and to substitute legal representatives of deceased appellants
Decision
Application struck out with costs; applicants may apply for fresh letters of administration in respect of each deceased person's estate

Observed later treatment

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Holding

The Court held that the appeal had not been validly withdrawn: the advocates' letter was not a proper notice of withdrawal under Rule 94, and once an appeal has been called for hearing it may only be withdrawn with leave of court, which was never obtained. The appeal therefore subsisted. However, the application was struck out because the applicants lacked valid letters of administration. The single grant covered the estates of two deceased persons, which is a nullity, and the supporting affidavit annextures were uncertified contrary to the Commissioner for Oaths Rules. The applicants therefore lacked locus standi, and the application was struck out with costs as incompetent.

Outcome

Application struck out with costs; applicants may apply for fresh letters of administration in respect of each deceased person's estate

Facts

Two persons, Singili Cheminy and Saisi Cheposhak, sued Masai Labu in 1986 claiming ownership of land in Kapchorwa. They lost in the Chief Magistrate's Court, lost again on appeal to the High Court at Mbale, and appealed to the Court of Appeal as Civil Appeal No. 7 of 2003. On 6 May 2004 their advocates wrote to the Registrar withdrawing the appeal. The appeal had been fixed for hearing on 17 May 2004. In 2010 the current applicants, claiming to be sons and legal representatives of the now-deceased original appellants, sought to reinstate the appeal and be substituted as parties. They relied on letters of administration and supporting affidavits. The respondent contended the appellants were alive when the appeal was withdrawn and that counsel had been duly instructed. The applicants' letters of administration purported to cover the estates of both deceased persons in a single grant, and the affidavit annextures were uncertified.

Issues

  1. Whether Civil Appeal No. 7 of 2003 was properly withdrawn in accordance with the Rules of the Court.
  2. Whether the applicants have locus standi to bring the application as legal representatives of the deceased appellants.

Orders

  • Application struck out with costs as incompetent and lacking merit.
  • The grant of letters of administration covering two deceased persons declared a nullity.
  • Court of Appeal Miscellaneous Application No. 134 of 2010 also struck out, but with no order as to costs.

Rules and key headnotes

Civil Procedure — Withdrawal of Appeals — Notice and Leave Requirements under Rule 94
An appeal may only be withdrawn before it has been called for hearing by lodging a proper notice of withdrawal; once an appeal has been called for hearing it can only be withdrawn with leave of the court, and a mere letter from counsel that does not comply with Rule 94 does not effect a valid withdrawal.
Succession & Estates — Letters of Administration — One Grant Per Estate
A grant of letters of administration can only be made in respect of the estate of one deceased person; a single grant purporting to cover the estates of two deceased persons is a nullity.
Civil Procedure — Locus Standi — Substitution of Deceased Parties
Only the validly appointed legal representative of a deceased person may be substituted as a party in the deceased's place; an applicant holding invalid letters of administration lacks locus standi to bring an application to reinstate or continue an appeal.
Evidence — Affidavits — Certification of Annextures
Annextures to an affidavit that are not certified by the commissioner for oaths before whom the affidavit was sworn offend the Commissioner for Oaths Rules and cannot be relied upon as evidence.
Civil Procedure — Abatement — Death of a Party on Appeal
An appeal does not abate on the death of any appellant or respondent, and where a withdrawal letter is written by advocates after the appellant's death the advocates have no instructions and the withdrawal is of no effect.

Legislation cited (6)

  • Rules of the Court of Appeal r.43(1)
  • Rules of the Court of Appeal r.56(3)
  • Rules of the Court of Appeal r.94
  • Rules of the Court of Appeal r.97
  • Commissioner for Oaths Act (Cap 5)
  • Commissioner for Oaths Rules, Third Schedule r.9

Cases cited (3)

  • Geoffrey Gatete and Angella Maria Nakigonya v William Kyobe (Civil Appeal No. 7 of 2005)
  • Edith Nantumbe Kizito and Others v Mariam Kuteesa (Civil Application No. 294 of 2013)
  • Makula International v Emmanuel Cardinal Nsubuga and Another (1982) HCB 11

Full judgment

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

Chelbei & Anor v Masai Labu (Miscellaneous Application No. 140 of 2010) [2015] UGCA 4 (6 February 2015)
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.