Court name
High Court of Uganda
Case number
Civil Suit-1994/591
Judgment date
31 January 1995

Betty Nalumaga Nyaika v SerwanoK Kulubya & Anor (Civil Suit-1994/591) [1995] UGHC 18 (31 January 1995);

Cite this case
[1995] UGHC 18
 
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
CIVIL SUIT NO.591 OF 94

BETTY NALUMAGA NYAIKA::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

V ERSUS

SERWANO KITYABA KULUBYA::.::::::::::::::::::::;:::::::::::::DEFENDANTS FLORENCE KULUBYA
BEFORE:
THE HONOURABLE JUSTICE I.MUKANZA

RULING:
At the commencement of The trial of this case, the learned defence counsel raised preliminary objection on the grounds that the plaintiff Betty Nalumaga has got no cause of action and therefore her action is misconceived and misplaced and should be dismissed with costs. He continued that Betty Nalumaga is suing in her capacity as an Administrator of the estate of her late daughter Margaret Nampiima deceased. Later letters of administration were granted to her under administration cause No. 306/94. Betty Nalumaga is claiming an interest in this estate of her daughter who claimed interest in the estate of her father Sam Kulubya the deceased. Margaret’s claim was made in the High Court of Uganda and when the matter went to the Supreme Court Civil Appeal No. 15 of 1990 whereby Serwano Kulubya was the appellant and Margaret Nampiima the respondent, her claim was rejected and the court ruled that she had no interest in the estate of Kulubya particularly plot 15 situated on Nakivubo place/road commonly known as Kulubya place. It is apparent from the plaint and judgment of the Supreme Court the plaintiff is trying to resurrect the matter which was finally adjudicated upon by the Supreme Court.
The matter is now resjudicate and the effort to resurrect it will be an abuse of court process. He submitted that Betty Nalumaga had no locus standi to make a claim in the administration of the estate of Sam Kulubya the deceased. She purports to hold letters of administration in respect of her daughter’s estate whereas the claim by her late daughter in the estates of Sam Kulubya was dismissed by the Supreme Court. To maintain that there is a cause of action she must show that her rights had been violated by the defendant and in the circumstances since there are no rights enjoyed by her in the suit property her claim ought not to be maintained. The
matter was resjudicate and was referred to the case of Semakula .V. Magola 1979 HCB page 20 where it was held that the test is whether
the plaintiff in the second suit is trying to bring before the court in another second way in the form of a new cause of action a transaction which has already been presented before a court which had competent jurisdiction in earlier proceedings and which has been adjudicated upon. If this is answered affirmatively the plea of resjudicate will then not only apply to all issues upon which the first court was called upon to adjudicate, but also every issue which properly belonged to the subject of litigation and which might have been raised at the time through the exercise of the due diligence of the parties. Kamunye and others .V. The Pioneer General Assurance Society Ltd 1971 EA 26. I do agree with the law with regard to the doctrine of resjudicate as explained in the referred to cases.
The learned counsel further submitted that the premises are known as Kulubya house situated on Plot 15 Nakivubo place which was completed by the Supreme Court. But was still being referred to her in the plaint particularly paragraph 4C. Nalumaga is going around to make a claim over a plot which was resolved by the Supreme Court. He further submitted that the plaintiff was a foreigner to the estate of the late Kulubya. She could not even question the management of the estate. The plaint should be struck out and the claim dismissed as being vexations frivolous and misplaced. She does not have the locus standi to question how the estate is being administered, questioning about the management of the estate of Kulubya is far fetched. Her daughter’s claim was conclusively handled by the Supreme Court. They could not be dragged in that matter again. He prayed that the suit be dismissed under order 6 r. 26 of the Civil Procedure Rules.
Mr. Lubega counsel for the plaintiff submitted that there was a number of legal issues raised and would answer them in the order presented. The first being whether the plaint disclosed a cause of action. It is trite law that if the court is to enquire whether a plaint discloses a cause of action, it has only to look at the plaint. His learned friend has not presented to the court in which areas the pleadings were lacking. The plaintiff had disclosed grounds why he was bringing the action. She was aggrieved by the fact that the property known as plot 15 Nakivubo Road, Kulubya house which was given to her daughter as a gift made intervivos has not been honoured by the defendant who are executors of the will of her father Sam Kulubya, that is clearly brought in paragraph 4 of the plaint which elaborates her areas of discontent and hence the cause of action. The remedies which the plaintiff is seeking from the court are quite clear and particularly a declaration as to ownership of that plot to No.15 Kulubya house.
The plaintiff’s pleadings have clearly disclosed a cause of action and over which she is seeking the Honourable Court to determine her right.
On the second preliminary point that the plaintiff did not have the locus standi he submitted that the plaintiff had disclosed under para 4(c) of the plaint that she is the administrator of the estate of her daughter Margaret Nampiima and that was granted under Administion Cause No.306 of 1994 granted by the High Court. It is by virtue of this grant that the plaintiff has stepped in the shoes of her late daughter to pursue the gift that she had got from her late father called Sam Kulubya.