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    only an administrator can sue or be sued

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
    Flag for inappropriate content
    6 views4 pages

    Only An Administrator Can Sue or Be Sued

    Uploaded by

    samurai.stewart.hamilton
    only an administrator can sue or be sued

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 4
    ¢ ‘HE REPUBLIC 0% UGANDA INTE HIGH. COURT. OF UGANDA jeer, oi AT MBALES fe le cont octane HIGH COURT CIVIL SUIT NO, 38/1988. _ ee Cas KAR KASAYULI 4. % +i PLAINTIFF ‘VERSUS BOB ASQUIRE DUMB. ... SENDANT. BEFORE: THU HONOURABLE MR, JUSTICE S.G. ENGUAU. RUT NG: ‘The application is under 0.19 r. 55 (1) C.P.R. and 0.48 rr 1 and.2 C.P.R. and section 101 of the Civil Procedure Act by the Administrator Gencral as the administrator of the prorerty and eredits of the estate of the late Bob Asquire Dumba. 5 It is for an order to set aside the decree in H.C.C.S. No. 38. of 1988 and also to set aside an order of attachment thereto in regard to the house of Boh Asquire Dumba (deceased) at Namunsi, Nakeloke in Mbale District. The grounds of the application are:- 10 (a) THT, the above suit was instituted after the death of the defendant. (%) THAT, the lidministrator General is the administrator of the property ond er dite of the defendant; and (ce) THAT, the Administrator General who is the legal edminis- 15 trotor of the suit roperty and credits was not eware of the suit fof was he served with any Plaint or Claim ozainst the estate of the decoased defendant. The above srounds of this application are supported by the affidavit of one Sarah Dunba, one of the widows ani also by the 20 affidavit of one Christopher Madama for the / ministrator General/ objector, In paragreph 2 of Sarah Dumba's affidavit, she last saw the deceased about June,in 1987. In paragraph 3, the deccased was 25 taken in the vehicle of the respondent/plaintiff. Parsgroph 4, the Administrator General is the administrator of the estate and eredits under High Court /dminist-ation Cause No.-178 of 1988. In paragraph 5, it was the &.Cs who informed her that the respondent was about to sell the suit property and asa result, 30 in paragraph 6, she promptly reported the matter to the D..S., Mbale who in turn notified the administrator General ss his agent. However, she is not avare of any suit between the respondent and the decessed defendant. Se In Wadamts affidavit at paragraph 2, he received a report of ‘the death of Dumba in June, 1988, Rosemin Dumba, another widow, provided the Death Certificate (Anrexture "A"), showing that Dunba died on 29.12.87. The Administrator Gencral instituted a suit against Rosemin 5 Dumba for revocation of Letters of Administration granted to her vide 1.0.C,5, No, 1169 of 1988 ond the said letters were revoked by consent and judgment wae entered on 24.46.92. The Administration of the estate therefore vested in the Administrator General henceforth, It is the contention of the learned Counsel for the 10 applicant that the original suit cannot stand against the deceased. Dawson Bradford Ltd,, & others Vs. Dove & Another (1971) 1 9.82330. Under section 190 of the’ Succession Act, CAP. 139, it is only the Administrator who can sue or be sued as no right to the intestate property can be proved in any court without grant of 15 Letters of Administration., Even if the suit survived death under section 13 (3) and (4) of the Law Re-orm (Miscellaneous Provisions) Act, Cap. 74, the learned Counsel arvues that the suit all the same is against or by the personal representative of the deceased. Under section 179 of the Succession ict, all the property of the 20 deceased vests in the personal representative to hold in trust for the beneficiaries, But uncer section 191 Succession Act, ctor :s effectually as from the 0.28 rr 1 & 2 GePsRey property vests in the adminict ne There“ore unc date of the decessed's suits against estates are acainst advinistrators or executors, 5 In the ii , the suit wes filed on 28,9.88 by thet time the deceased had already died ar he died on 28.12.87, about 7 months later. The suit was brought under 0.33 rr 1 & 2 C.PsRey but under rule 3 of 0.33, it is mandrtory that. the defendant be served, If the defendant is not available then substituted 30 service would suffice. However, aeccrding to the affidavit of the ant ¢ respondent/plointiff at paragraph 10, the decree was obtained on 8.11.88 after filing the suit but service was effected on the deceased's father. That being the case, actually no proper service was effected on the deceased defendant. 6 Court is.to take judieial notice of the grant of Letters of idministration to Rosemin Dumba on 14.6.88 as proof that Dumba wes dead about 3 months before institution of the suit. Under section 54 of the Evidence Act, no proof ncessary of facts where the court takes judicial notice. ‘Similarly judicial notice of 40 the signature of Justice Manyindo on the eid Letters of Administration be tsken under section 55 (1) (7) Evidence Act. Sf area It is therefore the prayer of the applicant that the suit be deélared a nullity, the decree ent Attachment Warrant be set aside yand' costs of this application be provided for. ‘The respondent's side of argurent is thet the application is misconecived and be disnisecd with costs, Under 0.19 r, 55 (1) 5 uP, instituged on 13.38.88, The fother £ the decease’ 1 the application de designe ‘ly delayed, The suit vas 4 defendant was served. Under 0.5 r. 14 C.0.2.4 s-rvice on an adult menber of the family of the 4efendent ic on effestive service as in the instant case. 10 on the above basis, the court took ection and issucd s decree on 8.11.88 and on 17.3.89 an Attac.ment “arrant was also issued. Rosemin Dumba wos prompted on 20,1.89 to file two applications, one for substitution as Adminietratix of the estate of the late Dumba and the other one is to set aside the decree, 15 It is the eubmission of the learned Counsel for the respondent that the alleged death of Dumba is fake for there is no seal on the said Death Certificate nor is there any postmortem report to. aecompany it. Under cection 10% Bridence Act, a person is presumed dead after 7 years which is not the case in the instant case. 20 To set aside the execution of decree will occasion a miscarriage of justice and will amcunt tc an abuse of court proces ‘The epplicant/defendent has no defcace to the suit. The application be dismissed with costs and execution of the decree to proceeds Having concidercd the submissions from both sides of the coin 25 and also after strencous scrutiny of the records available before me, it is herevy held 4. THAT, the suit was instituted in court on 28.9,88, Court process was served on one Jum. Dumba said to be the father of the deceased defendant on +.11.88 at Kacimonkoli Trading 30 Centre, Kanonkoli Sub-County, Tororo District. Under 0.5 r.l4 C.P.2., where in any suit the defendant cannot be found, service my be made on on agent of. the defendant empowered to accept service or on any edult member of the family of the defendant who is residing with him 35 It is not establishe?, however, thet the said Juma Dumba was either an agent of the Jefendant empowered to accept service or thot the said Juma Dumba was an adult member of the family of the defendant who was residing with him. It is not sufficient that Jum. Duma (f-ther of the deceased) 40 was found at the home of tk» defendant without proof that he (Juma Dumba) wes residir> with him (devendant) who was not at home at the material time. fe = ho # 2, THAT, the Death Certificate (innexture A") eonfirms that Bob isquire Dunba died on 29.17.87, The suit was filed in sourt on 28.9.88, that is, 9 months after his death. It is trite law in the circumstances that he could not be sved and sould not be served persons lly with court process and the 8 suit is mull and void. 3. THAT, the court issued the decrce on 8.11.88 followed by an Attachment ‘/arrant issued on 17.3.89, Since the suit is declared null and vo: a, the decree therefry Warrant which followed there-ft.r cannot stand. 4, THAT, under section 190 of the Succession Act, Cap. 139, it is the aduinistrator who can sue or be suet ws no right to the intestate property can be proved in any court without grant of Letters of . d retion, In the instant cr Letters of Administra ion were lly granted to the Administrator General on 18,1.93 vide ‘igh Court Administretion Case No. 178 of 1988 pursuant to the judgment on 24.692. 5. THAT, the administrator General

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