High Court Declares Suit Against Deceased Person a Nullity, Reaffirms That Such Actions Are Void Ab Initio and Incapable of Amendment, Thus Setting Aside Ex Parte Proceedings in Land Dispute.

Waboga David
Sep 4
6 min read

Facts

The Applicant, Ddamba Susan, brought this application against Respondents John W. Katende and Fredrick Ssempebwa. The original suit also involved the late Ssendagire Abdul, who died in 2002.

The Respondents filed Civil Suit No. 3030 of 2016 (formerly Civil Suit No. 15 of 2010) claiming ownership of land in Kyadondo Block 200 Plot 220 at Kawempe, alleging it was illegally subdivided into Plots 498 and 499. They lodged caveats on these plots, which the Applicant and Nanvuma Faridah Ssendagire (daughter of the late Ssendagire Abdul) sought to vacate.

Applicant’s Claims

Ddamba Susan purchased 5 acres of the suit land in 1995 from Semu Ntulume Nsibirwa, Ssendagire Abdul’s uncle. To compensate squatters, she sold 2.5 acres (Plot 498) to Ssendagire Abdul and retained 2.5 acres (Plot 499) in her name.

She had been in possession for over 30 years, cultivating crops and eucalyptus trees.

In 2021, she discovered a caveat lodged by Ssempebwa on 18th March 2008. Attempts to negotiate with the Respondents failed, with demands escalating from UGX 200,000,000 to UGX 300,000,000.

The suit was dismissed for want of prosecution in March 2022, allowing the Applicant to vacate the caveat and subdivide the land. However, she was shocked to learn on 16th May 2025 that the suit had been reinstated, and a locus visit occurred, with proceedings conducted ex parte.

The Applicant claimed she was never served with court processes despite being in possession of the land, and the suit was defective as it was filed against a deceased person (Ssendagire Abdul).

Respondents’ Claims

The Respondents claim they jointly acquired the land in 1985 and were registered proprietors. They allege the 1990 subdivision creating Plots 498 and 499 was fraudulent, done without their consent.

They filed Civil Suit No. 15 of 2010 against the registered proprietors for fraud and lodged caveats in 2008.

They obtained an order for substituted service in 2010 due to inability to locate the defendants and proceeded ex parte. The suit was dismissed but later reinstated.

They argue the Applicant was aware of the suit, engaged in negotiations, but failed to file a defense, and her actions in subdividing the land post-dismissal were fraudulent.

Procedural History

The suit proceeded ex parte, was dismissed for want of prosecution, reinstated, and a locus visit occurred in 2025. The Applicant sought to dismiss the suit, set aside ex parte proceedings, and file a defense out of time.

Issues

Whether Civil Suit No. 3030 of 2016 proper before the court?
Whether sufficient grounds exist to set aside the ex parte proceedings and orders in Civil Suit No. 3030 of 2016?
Whether the Applicant entitled to an enlargement of time to file a defense?

Applicant’s Arguments

Issue 1: Propriety of the Suit:

The Applicant argued that the suit is incurably defective because it was filed in 2010 against Ssendagire Abdul, who died in 2002. A dead person lacks legal personality and cannot be sued, rendering the suit a nullity (Order 1, Civil Procedure Rules).

That the Respondents failed to identify and sue the correct parties, such as the legal representatives of Ssendagire Abdul’s estate.

Issue 2: Setting Aside Ex Parte Proceedings

The Applicant argued that he was not duly served, despite being in possession of the land with a caretaker and known to local authorities. Substituted service via newspaper advertisement was improper as the Respondents could have located her.

Furthermore, the Respondents misled the court by proceeding ex parte after reinstatement without serving the Applicant, despite prior interactions during negotiations.

The Applicant’s right to a fair hearing under Article 28 of the Ugandan Constitution was violated.

Issue 3: Enlargement of Time:

Delays in filing a defense were due to the dismissal and reinstatement of the suit, the Covid-19 lockdown, and failed negotiations.

The Applicant has a legitimate interest in defending her title as a registered proprietor in possession for over 30 years.

Respondents’ Arguments

Issue 1: Propriety of the Suit:

The Respondents argued that they were unaware of Ssendagire Abdul’s death, as no record existed at the Ministry of Lands. The suit was filed against the registered proprietors listed on the title.

They further argued that the Applicant’s actions in subdividing the land post-dismissal were fraudulent, supporting the validity of their claim.

Issue 2: Setting Aside Ex Parte Proceedings:

They argued that substituted service was properly ordered in 2010 as the defendants’ whereabouts were unknown. The Applicant was aware of the suit through negotiations but failed to file a defense.

That the Applicant’s delay in challenging the ex parte proceedings until after the locus visit shows dilatory conduct, disentitling her to relief.

Issue 3: Enlargement of Time

The Applicant’s failure to file a defense despite knowing about the suit and receiving pleadings during negotiations precludes her from seeking an extension.

The suit has been ongoing for 17 years, and the Applicant’s actions caused prejudice to the Respondents through further subdivisions.

Court’s Findings

Propriety of the Suit

The suit against Ssendagire Abdul is a nullity.

The Court held that Civil Suit No. 3030 of 2016 was incurably defective to the extent that it had been instituted against the late Ssendagire Abdul, who had died in 2002.

Relying on Order 1 CPR, the Court reiterated that a suit cannot be instituted against a dead person since a deceased person lacks legal personality. Such a defect cannot be cured by amendment.

A suit instituted against a deceased person is void ab initio and cannot be cured by amendment, unlike a case where a defendant dies during the suit’s pendency, where legal representatives can be substituted (citing Abdala Ramathan v. Agony Swaib MCA No. 0067 of 2016).

Ex Parte Proceedings Set Aside

The Court found that substituted service was improperly obtained, despite the Applicant’s known occupation of the land and ongoing engagements with the Respondents.

The Court concluded that the Respondents acted in bad faith by misleading the Court into proceeding ex parte when they knew of the Applicant’s whereabouts.

Under Order 9 Rule 27 of the Civil Procedure Rules, a court may set aside an ex parte decree if the defendant was not duly served or was prevented by sufficient cause from appearing. Section 98 of the Civil Procedure Act grants courts inherent power to make orders to prevent abuse of process and ensure justice.

Right to a Fair Hearing Upheld

Citing Article 28 of the Constitution, the Court emphasized the fundamental right to a fair hearing and held that justice requires that all parties be given the opportunity to defend their interests in land.

The Court exercised its inherent powers under Section 98 of the Civil Procedure Act to prevent abuse of process and ensure substantive justice.

Enlargement of Time Granted

Recognizing the confusion caused by the dismissal and reinstatement of the suit, the Covid-19 lockdown, and failed settlement negotiations, the Court granted the Applicant leave to file a defence out of time.

Holding

The suit against the late Ssendagire Abdul is struck out as incurably defective for being filed against a deceased person.
The ex parte proceedings and orders against the Applicant, Ddamba Susan, are set aside due to improper service and violation of her right to a fair hearing.
The Applicant is granted leave to file a written statement of defense out of time.
Costs: Not explicitly addressed in the provided ruling, but the application sought costs for the Respondent, which the court did not expressly grant or deny.

Key Legal Principles

Legal Personality and Suits Against Deceased Persons:
A dead person lacks legal personality and cannot be sued. A suit filed against a deceased person is void ab initio and cannot be cured by amendment as per Abdala Ramathan v. Agony Swaib.
The burden lies on the plaintiff to properly identify and sue legal persons capable of being sued (Order 1, Civil Procedure Rules).
Setting Aside Ex Parte Proceedings:
Order 9 Rule 27 of the Civil Procedure Rules allows courts to set aside ex parte decrees if the defendant was not duly served or was prevented by sufficient cause from appearing.
Inherent Powers of the Court:
Section 98 of the Civil Procedure Act grants courts inherent power to make orders to prevent abuse of process and ensure justice, including setting aside irregular proceedings.
Enlargement of Time:
Courts may grant extensions to file a defense where delays are justified by external factors (e.g., Covid-19 lockdown, procedural confusion) and the applicant demonstrates a legitimate interest in defending the suit.
Fair Hearing
Article 28 of the Ugandan Constitution guarantees every person a fair hearing before an independent tribunal, requiring courts to ensure all parties are given an opportunity to be heard.

Key Takeaways

A suit instituted against a deceased person is a nullity ab initio and cannot be cured by substitution or amendment.
Courts will closely scrutinize claims of non-service where there is evidence that the defendant was known and could reasonably have been located.
The constitutional guarantee of a fair hearing remains central, and Courts will not permit parties to obtain judgment through procedural manipulation.
Where there is confusion due to reinstatement of dismissed suits, enlargement of time may be granted in the interest of substantive justice.

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