Muluuta v Kalungu Farm Limited (Civil Miscellaneous Application No. 189 of 2020) [2021] UGHCLD 91 (30 July 2021)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

MISCELLANEOUS APPLICATION NO. 189 OF 2020

(Arising from Civil Suit No. 671 of 2014)

(LAND DIVISION)

MULUUTA WILSON WILLIAM::::::::::::::::::::::::::::::::::

VERSUS

- 1. KALUNGU FARM LIMITED - 2. ADMINISTRATOR GENERAL - 3. COMMISSSIONER FOR LAND REGISTRATION ::::::::::::::::::::::::::::::::::::

BEFORE: HON. JUSTICE JOHN EUDES KEITIRIMA

RULING

This is an application brought by way of Notice of Motion under Section 33 of the Judicature Act, Section 98 of the Civil Procedure Act and Order 51 of the Civil Procedure Rules.

The Applicant is seeking for orders that:

- 1. Pursuant to the Decree of this court passed on the 29^th May 2020 and save for the land the subject matter of appeal in the Court of Appeal Civil Appeal No. 314 of 2020, the 2^nd Respondent does surrender to the Applicant all the duplicate certificates of title in his possession in respect of the estate of the late Semu Tenywa Musoke save the one for Bulemezi FRV 2 Folio 8 cum Bulemezi Block 15 Plots 96 and 97. - 2. The $3^{rd}$ Respondent does cancel the name of the $2^{nd}$ Respondent on the titles surrendered and register the Applicant as the proprietor as per the terms of the decree.

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- 3. That the draft on the record of Civil Suit No. 671 of 2014 be or any other appropriate grant of Letters of Administration of the estate of the late Semu Tenywa from the 2^nd Respondent to the Applicant unconditionally sealed in terms of the court's decree of 29^th May 2020 be sealed. - 4. That the costs of the application be provided for.

The application is supported by the affidavit of the Applicant who deposes inter alia:

- 1. That vide H. C. A. C No. 66 of 1984 the 2^nd Respondent was granted Letters of Administration of the estate of the late Semu Tenywa Musoke including but not limited to Plot 96 and 97 Bulemezi Block 15 and the 3^rd Respondent proceeded to register him on the landed properties of the estate. - 2. That the 2^nd Respondent filed H. C. C. S No. 671 of 2014 claiming that Bulemezi Block 15 Plot Nos. 96 and 97 was wrongly created over FRV 2 Folio 8 belonging to the 1^st Respondent with neither its knowledge, notice nor consent. - 3. That the Applicant was joined in the suit for allegedly having wrongfully benefitted from the parcelling out/subdivision and transfer into his names of part of Plots 96 and 97 by the 2^nd and 3^rd Respondents. - 4. That by judgment of this Court of 29^th May 2020, the creation of Block 15 Plot Nos 96 and 97 was upheld as valid, the 1^st Respondent's suit was dismissed and the Letters of Administration of the estate of the late Semu Tenywa Musoke were revoked in favour of the Applicant and the 3^rd Respondent was ordered to cancel FRV 2 Folio 8 and register the applicant on the remainder of the estate land. - 5. That the 2^nd Respondent unfairly failed and/or neglected and/or refused to co-operate with the applicant regarding the surrender of the Duplicate Certificate of Title in his possession as Administrator of the estate of the late Semu Tenywa Musoke without the consequential order revoking his letters formally being extracted and served on him.

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- 6. That the 1^st Respondent objected to this Court sealing a draft of the consequential grant revoking the Letters of Administration of the estate of the late Semu Tenywa Musoke. - 7. That the failure by the $2^{nd}$ respondent and the objection by the $1^{st}$ Respondent are misconceived, unfair, unjust, mala fide and has no basis. - 8. That this application is in the interests of justice.

In his affidavit in reply sworn on behalf of the 1^st Respondent, Aggrey Muhwezi deposes inter alia:

- 1. That he is the estates manager of the $1^{st}$ Respondent. - 2. That the 1^st Respondent filed Civil Appeal No. 314 of 2020 in the Court of Appeal against the entire judgement of this court. - 3. That the 1^st respondent also obtained a stay of execution order against the entire judgment of this court on the 11^th December 2020. - 4. That the 1^st Respondent complied with the conditions for the stay of execution when it deposited one hundred million shillings (100,000,000/=) for the due performance of the Decree within the prescribed time. - 5. That he has been advised by the 1^st Respondent's counsel that the literal meaning of the order of stay of execution unequivocally precludes the applicant or any of his agents and successors from executing the entire judgment/Decree including the suit property under contest pending the determination of the appeal. - 6. That he has been advised by counsel for the $1^{st}$ Respondent that by allowing this application it exposes third party purchases of the estate property to the risk of loss in the likely event the Court of Appeal sets aside the entire judgment appealed against after the issuance of Letters of Administration to the Applicant by this Court.

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- 7. That allowing the application re-opens the application for stay of execution application which was conclusively determined by this Court. - 8. That allowing the application renders parts of the appeal concerning the consent judgment in the suit nugatory. - 9. That it is in the interests of justice that the integrity of the appeal is maintained by denying the orders sought in this application.

In his affidavit in reply sworn on behalf of the 2^nd respondent, Simon Peter Muyomba, an Assistant Administrator General deposes inter alia:

- 1. That he is aware that there is an appeal filed by the $1^{st}$ Respondent with the Court of Appeal against the entire judgment of this Court. - 2. That he is also aware of the fact that there is an order of stay of execution issued by this court to the said judgment and it would be contrary to that order to execute parts of the same judgment when this court is aware that the appeal pursued by the $\mathbf{1}^{\text{st}}$ Respondent is against the entire judgment of this court. - 3. That as a Senior State Attorney with more than ten years of service he is aware that under Section 7 of The Administrator General's Act Cap 157, a grant of Letters of Administration issued to the Administrator General can only be revoked by court after hearing from the Administrator General. - 4. That it is his opinion that this court acted in a highly irregular manner in purporting to revoke the Letters of Administration issued to the Administrator General without giving the Administrator General a chance to be heard on that issue. - 5. That from the pleadings he has read, this court even gave reliefs that were never sought and delved in issues of Administration of the estate of the deceased that were never pleaded or argued before court.

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- 6. That it is his opinion that this court acted with material irregularity in purporting to revoke Letters of Administration or appointing trustees in a land matter when there is a whole Family Division of the High Court purposely set up to inquire into issues of Administration of estates. - 7. That the orders and Judgment of this court purport to remove the Administrator General from the administration of the entire estate which was not in issue in the suit but strangely empowers the Applicant herein as the only trustee strictly limited to the suit land and seeming to leave as unadministered the rest of this vast estate which was not part of the suit. - 8. That the 2^nd Respondent had intended to apply for review of the judgment but felt that they could not legally do so since an appeal had been lodged by the 1^st Respondent. - 9. That this court should dismiss this application in view of the appeal that has been lodged against the entire judgment and in light of the order of stay of execution already granted by this court. - 10. That they further oppose this application because the orders granted by this court were dubious, contradictory, unclear and bordering illegality and hence the same should not be enforced until the appeal is heard. - 11. That he has read the supplementary affidavits of the several beneficiaries opposed to the naming of the Applicant as the Administrator of the estate of the late Semu Tenywa Musoke and the reasons given therein underscore the need to involve all the beneficiaries in the choice of the person to be appointed as Administrator or Trustee over the beneficial shares in the estate.

There were supplementary affidavits of Francis Wasswa, Faith Bayiga Namusisi, Denis Kiyimba, Kasobya Samalie Ethel, Juliet Kalema, Patrick Lubowa, and Ruth Muwanga who are all the beneficiaries of the estate of the late Semu Tenywa Musoke. The said beneficiaries opposed the application to name the Applicant as the administrator of the estate of the

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late Semu Tenywa Musoke on grounds that there was need to involve all beneficiaries in the choice of the person to be appointed as the administrator or trustee over their beneficial shares in the estate. The details of what they deposed in their affidavits is on record.

The third Respondent never filed an affidavit in reply.

Counsel for the applicant and counsel for the 1^st respondent filed written submissions the details of which are on record and which I have considered in determining this application.

The issue to determine is whether the application filed by the Applicant has any merit.

The 1^st Respondent filed Civil Appeal No. 314 of 2020 in the Court of Appeal against the entire judgment of this court arising from Civil Suit No. 671 of 2014.

The 1^st Respondent also obtained a stay of execution order against the entire judgment on the 11^th December 2019. The 1^st Respondent complied with the conditions for stay of execution when they deposited one hundred million shillings (100,000,000/=) for due performance of the decree.

The stay of execution precludes the Applicant or any of his agents from executing the entire judgment/decree pending the determination of the appeal. I cannot see how I can sever the judgment to allow part of it to be executed when the appeal was against the entire judgment. The order of stay of execution was against the entire judgment not parts of it.

This application aims at circumventing the scope of the stay of execution order which is against the entire judgment. There is no room to "Cherry pick" what is executable and what cannot be executed.

I agree with the submission by counsel for the $1^{st}$ Respondent that this Court is functus officio having made a decision on the application for stay of execution.

It was held in the case of Goodman Agencies Limited versus Attorney General and Hassa Agencies (k) Limited –Constitution Petition No.03 of 2008 where it was stated that "... once a court has duly pronounced a final judgment or order it has itself no authority to correct alter or supplement it. The reason is that it becomes thereupon functus officio, its jurisdiction

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in the case having been fully and finally exercised its authority over the *subject matter has ceased."*

This Court having stayed the entire decision vide Civil Suit No. 671 of 2014 it has no authority to alter or supplement it. In my view it would be a travesty of justice to re-open that discussion this application.

I therefore find no merit in this application which I will dismiss with costs to the $1^{st}$ Respondent.

Hon. Justice John Eudes Keitirima

30/07/2021