Court name
HC: Family Division (Uganda)
Judgment date
10 February 2017

Were & Anor v The Administrator General & 4 Ors (HCT-04-CV-OS-2015/1) [2017] UGHCFD 10 (10 February 2017);

Cite this case
[2017] UGHCFD 10
Short summary:

Family Law

Coram
Kawesa, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA

HOLDEN AT MBALE

 

HCT-04-CV- OS - 001-2015  

 

  1.  WERE CRISPUS

(Minor suing through Next Friend

CLARE NANKYA)

  1. WERE MADRINE

(Minor Suing through Next Friend

OUMA CONSTANCE)       ::::::::::::::::::::::::::::::::::::::::::::PLAINTIFFS

VERSUS

  1. THE ADMINISTRATOR GENERAL
  2. JANE WERE (MRS)
  3. ABEDNEGO WERE
  4. GODFREY WERE
  5. EDWARD WERE                ::::::::::::::::::::::::::::::::::::::::::DEFENDANTS

 

BEFORE: HON. MR. JUSTICE HENRY I. KAWESA

 

RULING

 

The Plaintiff brought this action by way of originating summons seeking to recover from the court, an order for revocation of the letters of administration granted to the first defendant and the Estate be redistributed  by  the court  and that  2nd , 3rd, 4th  and 5th  defendants  have  unlawfully   intermeddled in the  Estate  of the deceased.

 

The defendants filed an affidavit in reply and in opposition to the suit.

When the  matter  came up for hearing  on 13.12.2016, counsel  for 1st  defendant raised a preliminary  objection  regarding  the procedure  adopted   which  is by  originating summons.

He was supported by counsel   for the 2nd - 5th defendants in the arguments.

Their argument was to the effect that the matter before court was very contentious and could not be resolved by way of originating summons. Referring to case         law, they  pointed  out  that originating  summons deals  with non contentious  matters  and cannot be  used where facts  are complex and  involve  a  considerable  amount  of oral  evidence. Reference was made to the cases of Janet   Ntanya V Sauda  Sebaduka MSC 11/2011, and  Nakabugo  V  Serungogi  1981 HCB 58.

 

In response  Counsel Lebu  for the plaintiff referred  to the  affidavit  in rejoinder to argue that the procedure was proper  as it  related to the rights  of a  beneficiary  of  an  estate. He pointed out that the matters are simple, and if court desires oral evidence it could be allowed without   prejudicing any party.

 

I have gone through the originating summons and the accompanying affidavit, alongside the affidavits sworn   in reply and in rejoinder.

 

There is no doubt that the matter before court is very contentious.

From  the pleadings  whereas  the plaintiff  sues the Attorney  General and  five others in their  capacity  as Administrator  of the Estate  of the deceased, it is  contended  by  defendants that Attorney General (1st  defendant)        has ceased being  such an Administrator . While plaintiff claims that no inventory was filed and no distributions done, the defendants allege the same were done.  The plaintiff raises issues of fraud in his reply, which is a matter to be specifically proved by oral and documentary evidence.

From the above facts, the issues raised are not simple.

 

 Under O. 37 of the Civil Procedure Rules, the procedure of originating summons, envisages matters that are simple and straight forward.

 It can not suffice where the suit relates to disputed facts and complicated matters   of law.

Courts have consistently guided that the procedure under originating summons should only apply to simple and straight forward causes.

In  Vicent  Kawinde T/A Oscar  Associates V Kato  HCCS 4/2007(unreported) relying  on  Kulsubai  V Abdulhussein ( 1957) EA 699 it was held  that: 

Such procedure was intended so far as we can judge to enable simple matters to be settled by the court  without  the expense  of bringing  an action in the usual way, not  to enable  the court to  determine  matters which   involve a serious questions.”

 

The procedure was meant to handle simple non complicated matters.

 

From the pleadings and the submissions  herein  it is  clear  that there is no way  this  court  will hear  this matter  without  hearing oral evidence. The matter seems complex. There is need for evidence to prove matters alluded   to by all parties.

This is a case where proceedings by originating summons would not suffice to enable court determine the issues in question.

I agree with the defendants that the procedures adopted can not suffice in this matter.

I hold that this was not  the kind  of matter  that ought  to have  been  brought  by way of  originating summons  as it was neither  straight  forward   nor simple, that the plaintiff ought to have proceeded  in the ordinary  way  and  still has the opportunity to do so if he is  still within  time.   This is as per   Nakabugo V Serungogi (1981) HCB 58.

 

The preliminary objection is accordingly upheld. This is not the kind of matter that ought to have been brought by originating summons, it being not straight forward or simple. The plaintiff ought to have proceeded in the ordinary way, and may yet do so, if he is within time.

 Costs to the defendants. I so order.

 

Henry I. Kawesa

JUDGE

10.02.2017