Wakilii

Livingstone Lubwama and Another v Sebugulu Mukasa Teopista Nabukalu (Miscellaneous Application 1807 of 2022)

High Court · [2023] UGHCLD 482 · 2023 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to dismiss main suit for lack of locus standi, arising from Civil Suit No. 303 of 2022
Decision
Application dismissed; respondent found to have locus standi in the main suit; applicants' joint written statement of defence allowed despite late filing

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that an administrator of an estate may lawfully appoint an attorney under s.23 of the Trustee Act to handle specific litigation matters without unlawfully delegating their administrative mandate, provided the power of attorney is limited to commencing or attending proceedings and not general estate administration. The application to dismiss the main suit for lack of locus standi was dismissed. However, an affidavit deponed by one applicant without written authority from the co-applicant is incurably defective, rendering such application incompetent.

Outcome

Application dismissed; respondent found to have locus standi in the main suit; applicants' joint written statement of defence allowed despite late filing

Facts

The applicants sought to dismiss the respondent's main suit (Civil Suit No. 303 of 2022) on grounds that the respondent lacked locus standi. The respondent had been granted letters of administration to her late husband's estate and appointed her son as her attorney to handle court proceedings relating to suit land. The applicants filed their defence 23 days after service of summons, 8 days beyond the prescribed 15-day period, without seeking leave. The application was supported by an affidavit deponed by only one of the two applicants, without written authority from the co-applicant. The respondent argued that as administrator and beneficiary to the estate, and through a lawfully appointed attorney who was also a beneficiary, she had sufficient interest in the suit land.

Issues

  1. Whether the affidavit in support of the application was defective for being deponed by one applicant without authority from the other applicant.
  2. Whether the applicants' defence was filed out of time and rendered them without locus standi to bring the application.
  3. Whether the applicants should have raised the issue of locus standi in their pleadings rather than by way of preliminary objection.
  4. Whether the respondent has locus standi in the main suit having sued through a power of attorney while serving as administrator of an estate.

Orders

  • Application dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Affidavits — Defective Affidavits — Authority to Depose on Behalf of Another
An affidavit is incurably defective where it is deponed on behalf of another person without written authority from that person being attached as evidence and filed on the court record.
Civil Procedure — Defence — Time Limits — Extension of Time
Where a defence is filed beyond the 15-day period prescribed by Order 8 rule 1(2) of the Civil Procedure Rules without seeking leave of court, the court may exercise its inherent powers under s.98 of the Civil Procedure Act and s.33 of the Judicature Act to allow the defence where the other party has waived the defect by filing a reply and no injustice has been occasioned.
Civil Procedure — Preliminary Objections — Points of Law — Raising Issues Not Pleaded
A party entitled to raise a point of law by pleading under Order 6 rule 28 of the Civil Procedure Rules who fails to do so and raises it only by way of preliminary objection after filing a defence may be found to be raising an afterthought or attempting to delay proceedings, and such objection may be struck out as a departure from the pleadings.
Succession & Estates — Personal Representatives — Powers and Duties — Appointment of Agents and Attorneys
Under s.23 of the Trustee Act, a personal representative may lawfully appoint an agent or attorney to handle specific matters such as commencing or attending civil or criminal proceedings in relation to estate property, provided the power of attorney is limited to such specific functions and does not delegate the core decision-making power of estate administration.
Civil Procedure — Locus Standi — Sufficient Interest — Beneficiaries and Administrators
An administrator of an estate who is also a beneficiary and widow of the deceased, suing through a lawfully appointed attorney who is also a beneficiary, has locus standi to institute proceedings in relation to estate property, as both the administrator and attorney have individual beneficial interest in the estate.

Legislation cited (11)

Cases cited (6)

  • Binaisa Nakalema and 3 Others v Mucunguzi Myers (Miscellaneous Application No. 460 of 2013)
  • Makerere University v St. Mark Education Institute and Others (High Court Civil Suit No. 378 of 1993)
  • Stop and See (U) Ltd v Tropical Africa Ltd (High Court Miscellaneous Application No. 333 of 2010)
  • Yaya v Obur and Others (High Court Civil Appeal No. 81 of 2018)
  • Dima Dominic Poro v Inyani and Another (High Court Civil Appeal No. 17 of 2016)
  • Kampala Financial Services v Commissioner Land Registration (High Court Miscellaneous Case No. 149 of 2020)

Full judgment

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

Livingstone_Lubwama_and_Another_v_Sebugulu_Mukasa_Teopista_Nabukalu_(Miscellaneous_Application_1807_of_2022)_[2023]_UGHCLD_482_(20_June_2023)
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.