Wakilii

Ssenyimba & Ors v Birikade & Another (Miscellaneous Application No. 378 of 2018)

High Court · [2019] UGHCFD 40 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend counterclaim in pending civil suit arising from estate administration dispute
Decision
Leave granted to amend counterclaim in HCCS No. 175 of 2015

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that where co-administrators act in their capacity as administrators of an estate, one co-administrator may depose an affidavit concerning the estate without written authority from the others under Succession Act s.272, which allows any one of several administrators to exercise powers in the absence of contrary direction. Held further that an amendment seeking to clarify matters already raised in the original pleadings does not introduce a new cause of action. Application for leave to amend counterclaim granted.

Outcome

Leave granted to amend counterclaim in HCCS No. 175 of 2015

Facts

The applicants are co-administrators of the estate of the late Nalumoso Vincent Kitandi Kusanze. They were sued in HCCS 175 of 2015 and filed a counterclaim. They sought leave to amend the counterclaim on grounds that their previous lawyer had not captured material facts and new facts concerning the suit land had come to their knowledge. The respondents opposed, arguing that the first applicant lacked authority from the other co-administrators to swear the affidavit in support, that the amendment would introduce a new cause of action concerning the estate of Anna Maria Nambejja, and that there was already a pending suit concerning that estate. The original plaint in HCCS 175/2015 had itself referenced property mentioned in the will of Anna Maria Nambejja.

Issues

  1. Whether a co-administrator can depose an affidavit on behalf of fellow co-administrators without written authority under Order 1 rule 12 of the Civil Procedure Rules
  2. Whether the proposed amendment to the counterclaim introduces a new cause of action by bringing in matters concerning the estate of Anna Maria Nambejja when the suit concerns the estate of Nalumoso Vincent
  3. Whether the respondents would be prejudiced if leave to amend the counterclaim is granted

Orders

  • Preliminary objection dismissed.
  • Application granted.
  • Costs awarded to the applicant but shall stay in the cause.

Rules and key headnotes

Civil Procedure — Affidavits — Authority of Co-Administrators — Succession Act s.272
Where several co-administrators of an estate exist, any one of them may exercise the powers of all in the absence of any direction to the contrary under Succession Act s.272, including deposing an affidavit concerning matters touching the rights of the estate where the deposed facts do not concern any administrator's individual capacity or interests.
Civil Procedure — Preliminary Objections — Pure Points of Law
A preliminary objection must raise a pure point of law argued on the assumption that all facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.
Civil Procedure — Amendment of Pleadings — New Cause of Action
Where the original plaint raises matters concerning a particular estate, a proposed amendment to the counterclaim seeking to have the court investigate related matters concerning that same estate does not introduce a new cause of action but rather seeks clarification and final resolution of issues already in controversy.
Civil Procedure — Amendment of Pleadings — Principles
Timely amendment of pleadings should not be denied if it is for the purpose of just and final resolution of disputes between parties. The amendment must be in the interest of justice and should not flimsily open causes of action not previously before court but should be solely for clarifying and ensuring that the matter and all related issues touching the subject matter are finally and fully disposed of.

Legislation cited (7)

Cases cited (7)

  • Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1969] EA 696
  • Sitenda Sebalu v Sam K. Njuba and Another (Supreme Court Election Petition No. 26 of 2007)
  • Hon.Ababiku Jesca vs Eriyo Jesca Osuna MA No. 4/15, 31/15 and 37/15
  • Otim and 3 Others v Uganda Revenue Authority (Miscellaneous Application No. 94 of 2017)
  • Kaheru Yasin and Another v Zinorumuri David (Miscellaneous Application No. 82 of 2017)
  • Taremwa Kamishani and Others v Attorney General (Miscellaneous Application No. 38 of 2012)
  • Kaingana v Dabo Boubon [1986] HCB 59

Full judgment

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

Ssenyimba & Ors v Birikade & Another (Miscellaneous Application No. 378 of 2018) [2019] UGHCFD 40 (20 December 2019)
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.