The High Court at Luwero has reaffirmed that a customary heir has the legal standing to institute proceedings on behalf of an estate, even without letters of administration.

Background

The plaintiff, Erinayo Semwanga, filed a suit against four defendants, Duncan Sekubunga, Asafu Kibuuka, Kyesirikidde, and Kadala Mustafa Nsubuga, concerning the estate of the late Akisoferi Sentumbwe, specifically land in Buruli Block 207, Plot 1 at Nakayonza and Kyandyaga, Nakasongola District.

Against the 2nd and 3rd defendants, seeking revocation of Letters of Administration for the estate of Akisoferi Sentumbwe. This suit was dismissed by Hon. Justice Moses Mukiibi after a “short interview” with the plaintiff, who appeared unstable and was deemed an imposter, with the court dismissing the suit as an abuse of process under Section 98 of the Civil Procedure Act (CPA).

The plaintiff filed Miscellaneous Application No. 210 of 2011 to set aside the dismissal of Civil Suit No. 11 of 2009, but the file disappeared from the registry and remains untraced. Meanwhile, the 4th defendant filed Civil Suit No. 76 of 2012 against the plaintiff and others, which was stayed pending the determination of the current suit.

Preliminary Points of Law

The 4th defendant raised two preliminary points of law:

1. The plaintiff lacks locus standi to file the suit.

2. The suit is barred by res judicata due to the dismissal of Civil Suit No. 11 of 2009.

Issues

The court addressed two preliminary points of law:

1. Whether the plaintiff lacks locus standi to bring the suit.

2. Whether the plaintiff’s suit is barred by res judicata.

Parties’ Submissions

4th Defendant’s Submissions

The 4th Defendant submitted that the plaintiff, claiming to be a nephew and customary heir of the late Akisoferi Sentumbwe, failed to establish himself as a beneficiary of the estate in the amended plaint.

Citing Dima Dominic Porovs vs. Inyani Godfrey & Anor (HCCA No. 0017 of 2016), the 4th defendant argued that locus standi is a pure point of law, and the plaintiff lacks the right to sue as he has no sufficient interest in the estate.

The dismissal of Civil Suit No. 11 of 2009, where the plaintiff was labeled a fraudster with no interest in the estate, supports the claim that he lacks locus standi.

Additional authorities cited include Mukisa Biscuits Ltd vs. West End Distributors Ltd (1969 EA 696) and Omondi vs. National Bank of Kenya & Others (2001) 1 EA 177.

The 4th defendant argued that Civil Suit No. 11 of 2009, which involved similar parties and subject matter, was dismissed, rendering the current suit res judicata.

The dismissal of the prior suit, where the plaintiff was deemed a fraudster, bars him from relitigating issues related to the estate.

Plaintiff’s Submissions

On Locus Standi

The plaintiff relied on Fakrudin Vattibhai Kapasi & Anor vs. Kampala District Land Board & Anor (HCCS No. 570 of 2015), where locus standi must be established at the time of filing the suit.

Citing Dima Dominic vs. Inyani Godfrey (supra), the plaintiff argued he has sufficient interest as a nephew and customary heir of the deceased, who died childless, making him a beneficiary entitled to protect the estate.

The plaintiff further relied on Israel Kabwa vs. Martin Banoba Musiga (SCCA No. 52 of 1995), where the Supreme Court held that a customary heir has locus standi to sue on behalf of an estate.

On Res Judicata

The plaintiff argued that Civil Suit No. 11 of 2009 sought revocation of Letters of Administration, while the current suit seeks recovery of land, making the causes of action distinct.

The prior suit was dismissed prematurely without a full hearing or determination on the merits, as per Wilson Nuwamanya vs. Mary Mugenyi and Mbarara District Land Board (HCCS No. 047 of 2008), which held that res judicata requires a final decision on the merits after a full hearing.

4th Defendant’s Rejoinder

The 4th defendant reiterated that the dismissal of Civil Suit No. 11 of 2009, where the plaintiff was declared a fraudster and not an heir, conclusively negates his locus standi.

The prior suit’s dismissal bars the plaintiff from bringing the current suit under res judicata.

Court’s Findings

1. Locus Standi

The court reaffirmed that a customary heir is, by necessary implication, a beneficiary of an estate and therefore has the capacity to sue to protect estate property.

That under Order 6, Rules 28 and 29 of the Civil Procedure Rules, a preliminary objection based on a point of law may dispose of a suit if it arises from the pleadings (Mukisa Biscuits Ltd vs. West End Distributors Ltd). Courts cannot resolve factual disputes requiring evidence beyond pleadings at this stage.

The court defined locus standi as the right to bring an action or be heard in court. A person must have sufficient interest in the subject matter, referencing the precedents of Bank of Uganda & Anor vs. Kaweesi Sulaiman & 26 Ors, M.A 1047 of 2022; Joseph Muhumuza Kaahwa & 2 Ors vs. Mambutima Jeremiah, HCT-01-CV-CS-038-2022.

Further referencing the precedent in Dima Poro Enterprises Ltd vs. Inyani Godfrey (supra), Justice Mubiru held that a beneficiary has standing to sue to protect an estate, even without a grant of Letters of Administration, if the claim is germane to the estate.

The plaintiff sued as a nephew and customary heir of the deceased, who died childless. As a nephew, he is a potential beneficiary, as the estate would include children of the deceased’s nearest relatives (e.g., siblings). The court found that the plaintiff has the capacity to sue to protect the estate from being wasted or alienated.

Citing Israel Kabwa vs. Martin Banoba Musiga (supra), where the Supreme Court held that a customary heir can sue on behalf of an estate without Letters of Administration, as they are entitled to a share of the estate under the Succession Act (as amended by Decree No. 22 of 1972).

The 4th defendant’s claim that the plaintiff lacks locus standi because he did not explicitly sue as a beneficiary was rejected. The court held that a customary heir is, by implication, a beneficiary. Whether the plaintiff is indeed a customary heir requires evidence, which cannot be resolved at the preliminary stage.

The court overruled the objection, finding that the plaintiff has locus standi to bring the suit.

On Res Judicata

The Court observed that Section 7 of the Civil Procedure Act bars courts from trying a suit where the matter was directly and substantially in issue in a prior suit between the same parties, decided on the merits by a competent court (Kamunye vs. Pioneer Assurance Ltd, 1971 EA 263; Ganatra vs. Ganatra, 2007 1 EA 76; Karia & Anor vs. Attorney General & Ors, 2005 1 EA 83).

Moreover, Civil Suit No. 11 of 2009 sought revocation of Letters of Administration (filed in the Family Division), while the current suit seeks recovery of land and cancellation of the 4th defendant’s registration (filed in the Land Division). The court found the causes of action and reliefs sought to be distinct.

Furthermore, the dismissal of Civil Suit No. 11 of 2009 was based on a “short interview” with the plaintiff, not a full hearing or determination on the merits. The court noted the absence of the defendants and the lack of evidence as reasons for dismissal (Wilson Nuwamanya vs. Mary Mugenyi, supra).

Referencing the precedent in Karia vs. Attorney General (supra), the Supreme Court emphasised that res judicata requires a final decision on the merits after evidence is led. Since Civil Suit No. 11 of 2009 was dismissed without a hearing, res judicata does not apply.

The court overruled the res judicata objection, finding that the prior suit was not determined on its merits and that the causes of action are distinct.

Holding

The plaintiff, as a nephew and claimed customary heir of the late Akisoferi Sentumbwe, has sufficient interest to bring the suit to protect the estate, granting him locus standi. The objection was overruled.

The suit is not barred by res judicata, as Civil Suit No. 11 of 2009 was dismissed without a hearing on the merits, and the causes of action in the two suits are distinct. The objection was overruled.

Both preliminary objections were overruled with costs to the plaintiff. Civil Suit No. 159 of 2022 will proceed to a full hearing on the merits.

Key Takeaways

1. Customary heirs have legal standing to institute proceedings on behalf of an estate, even without letters of administration.

2. Res judicata requires a final determination on the merits. A dismissal without a full hearing or evidence does not constitute a final decision for res judicata purposes (Wilson Nuwamanya vs. Mary Mugenyi).

3. Preliminary objections must be confined to pure points of law evident from the pleadings, not factual disputes requiring evidence.