Mallinga & Anor v Mallinga (HCT-04-CV-OS-0002-2016) [2017] UGHCFD 6 (10 April 2017)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE   HCT-04-CV-OS-0002-2016   BEATRICE ASIRE MALLINGA ATWOOKI SARAH.........................................................PLAINTIFFS VERSUS JONATHAN OBUKUNYANG MALLINGA...........................DEFENDANT   BEFORE: THE HON. MR. JUSTICE HENRY I. KAWESA   RULING   The Appellants brought this application by way of originating summons under section 140 (1) RTA and O.37 r. 3 of the Civil Procedure Rules; though in submissions it is presented as O.37 r. 1 of the Civil Procedure Rules.   To justify the procedure adopted applicants’ submissions show that section 140 (1) RTA gives the proprietor whose title has been caveated to move court to summon the caveator to show cause why his/her caveat should not be removed.  He further argues that under O.37 r. 1 of the Civil Procedure Rules the executor/Administrator of a deceased person can take out an originating summons for determination of any question arising directly out of the Administration of the estate.   The questions for determination by the originating summons are: Whether the defendant/caveator should show cause why his caveat should not be removed from the named certificates of title to wit. FRV 1210 Folio 2, FRV 779 Folio 7, FR 779 Folio 8 FRV 890 Folio 2, FRV 1221 Folio 23.  Whether the defendant should be condemned to costs of these proceedings.   The case for applicants briefly that they were granted letters of Administration to the estate of the late Dr. Mallinga on 3rd March 2016.  Defendant had in course of the proceedings placed caveats to the said properties (above) pending determination of HCCS 052/2013.  The suit was determined in their favour on 13th November 2015 and defendant has not filed an appeal.   Applicants contend that the properties are in the names of the deceased and they would like to change their ownership into their names so that they can distribute them to the various beneficiaries named in the deceased’s Will.   They point out that the defendant’s claims in his affidavit in reply why he wants to keep the caveat are without force of law.  Applicants argue that as Administrators, they have the legal right to do so under S.192 RTA, in order to fulfil the deceased’s wishes in the Will.   The defendant on the other hand objected to the above and raised a preliminary objection, that the application was incompetently before court.  Counsel argued that the procedure cited under O.37 rule 1 of the Civil Procedure Rules is wrong as it does not cover the matters before court.  He argues that the correct procedure should have been by Notice of Motion.   Counsel further argued without prejudice to the above that the purpose of the caveats on the properties cited was to guard them from being wasted by the plaintiffs who wished and still wish to change them into their names without consideration of the defendant and his siblings namely Jonathan Obukunyang Mallinga, Pamela Asekenye Mallinga, Stephane Tino and Rachael Kateu Mallinga.  He contends that the listed properties are not mentioned anywhere in the 2009 will, but are meant to go back to the pool of the estate of the deceased for redistribution amongst the beneficiaries.  He prayed that the application is bad in law and be dismissed with costs.   In rejoinder applicant argued that reference to O.37 r.1 of the Civil Procedure Rules was in general reference to the fact that the rules allow an executor/administrator to take out an originating summons to determine questions arising directly out of Administration of the estate.  They argued that the matters raised were simple and determinable by originating summons.   He argued that even if a wrong procedure is utilised, it is curable under Article 126 (2) of the Constitution.  He also said that reference to O.37 r. 3 was meant to be a reference to O.37 r. 2 of the Civil Procedure Rules.   I will begin with the preliminary objection.  The provisions of O.37 r. 1 provides that: “the executors or Administrators of a deceased person or any of them interested in the relief sought.... may take out an originating summons, returnable before a Judge sitting in chambers.... for determination of any of the questions....”   I have looked at the laws governing applications to be originated by originating summons.  Most authorities require the applicant moving court under O.3 r. 1, to specify under which paragraph of the rules there moving. See: Zalwango & Anor. V. Walusimbi & Anor. Orig. Summons No. 03 of 2013 H/C Jinja.   This was not done by applicant. However, order 37 rule 1 of the Civil Procedure Rules under which he generally made the application read together with Article 126 of the Constitution would give benefit to the applicant’s application to be allowed on record even if it is not specific to the paragraph under which it was brought.   The affidavit in support of the application are administrators.  They have shown by affidavit that the matters in contention relate to showing cause why a caveat should not be removed.  There is an affidavit in reply whose contents, indicates a simple answer to the question posed.  This application therefore falls under the ambit of O.3 r. 1 of the Civil Procedure Rules which allows a person claiming to be interested in relief sought as legal representative of a deceased, to take out an originating summons before a Judge in chambers.   The next question to determine is if the matters brought before court by way of the originating summons are such as may be brought under the said procedure.   In Kalusambai vs. Abdul Hussein (1975) EA 708, it was held that:             “The procedure by originating summons was intended to enable simple matters to be settled by the court without the expense of bringing an action in the usual way, not to have court determine matters which involve serious question.” The same was the position in Nakabugo v. Serunjogi (1981) HCB 58 held that: “The test is whether the disputed facts are complex and involve a considerable amount of oral evidence.  If so, originating summons is not the proper procedure to take.”   Given the above, it is clearly stated from the pleadings in this case that the only question for investigation is whether the caveat ought to be lifted.  Looking at the answer given in the affidavit in reply, this is a simple matter which requires no oral testimony to resolve.  It can be adequately resolved by looking at the pleadings.  The procedure adopted by applicants, of originating summons is therefore proper and the preliminary objection is accordingly rejected.   Having resolved so, and turning to the merits of this application, I find that the properties which were caveated by the defendant are properties mentioned in the Will of the deceased under paragraphs 5.1, 5.2, 5.3, 5.4, and 5.5.  This is contained in the applicants’ affidavit in support refer to the said facts under paragraph 8 of Beatrice Asire Mallinga’s affidavit.  The contents of paragraph 8 above, are premised on the Will annexed and archiving the said Will, I noted that the properties named in the Will refer to land at Butebo- under paragraph 5.3.   Yet, the Respondent in paragraph 2 of Obukunyang Mallinga’s affidavit in reply depones that all the property is at Butebo Pallisa District.  That be as it may, he concedes that the property is part of the late Mallinga’s estate (paragraph 3) of his affidavit.  He states in paragraph 4, 5, and 6 that he wants the caveats retained in order to protect the property from waste pending a proper distribution schedule. The above position as argued by respondents cannot legally stand because, the respondent has no locus standi to allege that the Administrators will put the estate to waste.  The law places all authority to deal with the deceased’s estate in holder of letters of Probate/Administration.  Therefore as argued by applicants, the plaintiffs are obliged by law to put into effect the wishes of the deceased as per the Will annexed to the Letters of Administration.  The said Will under clauses 5.1-5.8 and 6.0 clearly lays out how the lands, buildings, properties should be shared out.  The respondent or the other siblings in the USA were not provided for under that part of the Will.  They were separately provided for under clause 7 of the will specifically to share property in the USA.   This court determined HCT-04-0013-2013, and resolved the matters therein in favour of applicant and she was subsequently together with Atwoki Sarah, were jointly granted letters of Administration to this Estate (Dr. Stephen Oscar Mallinga) on the 3rd of March 2016.  They therefore legally assumed all rights of administrators, to manage the entire estate in accordance with the law of succession and the Will of the deceased.  There is therefore no justifiable reason shown by the respondents, why the caveats should not be lifted.  The caveats I notice were placed there at a time before the determination of HCCS. 052/2013. The suit having been concluded, there is no justification for the Respondent’s caveats to remain on the deceased’s property in which he has no legal interests at all.   I did not find evidence of the alleged sharing of the Shs. 2 billion.  I agree with the applicant’s counsel that the allegation as contained in the affidavit in reply offends O.17 r. 3 of the Civil Procedure Rules for not disclosing the source of this information.  (See Kabenge Advocates v. Mineral Access Systems CA-565-2012). For all reasons above, I find that the applicant has succeeded in this application and is granted the orders as sought.  Costs granted to applicant.     Henry I. Kawesa JUDGE 10.4.2017

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