977 KCB. __NALUVUGO v. HATEGYEKIMANA i] Maria Naluvugo v, Isaack Hategyekimana High Court (Saied, C.J.): March 30%, 1977 {Civil Appeal No. 719 of 1976) Civil Procedure — Parties to suits — all interested persons must be joined ax parties or muse cownisant of action — Civil Procedure Rule Order 1 1.1012) nisrested person pan perso es ere for Tewocation of Ietters of administration — pasties top action — failure to_ make o = heres ffe b This was an appeal from the judgment of a Magistrate Grade I in probate action in which the respondenUplaintiff sought the revocation of the letters of administration which the appellantdefendant had obtained from a magistrate Grade Il in respect of the estate of the deceased, claiming the deceased ta be her husband, The plaintiff claimed to be the younger brother of the deceased. He was in Rwanda at the lime of the deceased's death. On hearing of the death, the pleintiff went to the village where his brother used five and the Muluka chief there told bim that the letters of administration had been obtained by the defendant io whom the property of the deceased bad also been handed. The plaintiff accordingly initiated probate action by fling a document heated “Affidavit of Citation to bring im Administration, Administrator's interest disputed” ia which he claimed that his late brother was never married to the defendant nor did he have a daughter called Teopista Nabukera. The affidavit was served on the defendant who put in her written statement of defenee which she claimed that she ‘vas the proper widaw of the deceased, have married him according to customary nites and fhat they bad one issue Teopista Nabukera born before she separated from her husband, the deceased. The defendant had separated from the deceased and married another man during the deceased's lifetime. ‘The trial court then issued an originating summons under O.XXXIV 1.7 addressed to the defendant requiring her to appear before him either in person or by advocate. During the hearing evidence was given by both sides as aresull of which judgment was given in(977.8. NALUVUGO v. HATEGYEKIMANA, 30 favour of the plaintiff, It-was trom this decision that the defendant appeal. On appeal, the defendant's counsel submitied that there was no evidence to prove that the plaintiff as in fact a brother of the deceased; that the trial magistrate having found that the defendant was never married to the deceased erred in saying that even if they had been married, their marriage was dissolved by a customary divorce when they separated that the trial magistrate erred in relying on the fact that the girl gave birth was not registered as this was not compulsory at the tine; and that the trial magistrate erred im the procedure for the whole proceedings. HELD;1. The procedure for the institution of a probate action is comprehensively set out in the Administration of estate (Small Estates) (Probate and Administration) Rules, 1972 statutory instrament No. 104 of 1972, 2. Under mule 10 of the Rules a probate action for the revocation of probate or letters of administration must be based upon a plaint the contents of which are required to be in the form clearly set out in rule 11, Such plaint cannot issue unless a citation has been settled by the magistrate in accordance with rule 15(1), and is thereafter issued for service upon the person cited in it, 3. In the instant case, the action was started mot by a plaint as required by the rules but by an Affidavit and even if the wial magistrate construed the affidavit as 4 plaint he proceeded on a completely misconccived procedure for accerding 1 the Rules, he should have proceeded to settle the terms of the citation to bring in the letters of administration which had been previously issued to the defendant. 4. According to Tristram and Coote's Probate Practice, 23 edn, p.533, a citation is, “an instrument issuing from the principal probate registry under the seal of the court, and signed by one of the registrars, containing a recital of the reason for its issue und the interest of the party extracting it, calling upon the party cited. to enter appearance and take the steps therein specified, with an intimation of the nature of the order the court is asked to and may make unless good cause is shown to the contrary.” 5. A citation, the specimen of some of which are set out in Schedule 1 of the Rules and are substantially the same as their English counterpart, can be issued only by court in which such proceedings are taken and the plaint cannot issue unless either the grant has already been lodged in the registry or a citation to bring ‘it in has been issued. It is only then that the court will issue the plaint for service upon the defendant incorporated in a summons issued under rule 13,D977) HB y.HA’ MANA 6, ‘The appropriate citation im the present case would have been the specimen in Form 4* which starts with the words “whereas it appears by the statement on oath f...." which implies, although no specific method is prescribed in the Rules, that after a plaint has been filed and the tems of the citation settled the magistrate is required 10 examine the plaintiff on oath in support of bis castentien, 7. the statements of fact set out in the citation ought necessarily to be supported by either a statement on oath or an affidavit of the plaintiff. The citation issued must either preceed or issue simulianeoulsy with the summons according to the Procedure laid down in rules 13, ‘The file is accordingly marked so that no copy of the grant may thereafter issue without leave of the court till the action is conchided. 8. Since the procedure for the institution of a probate action is comprehensively set out in the Administration of Estates (Small Estates) (Probate and Admimstration Rules 1972, there was no need for the trial magistrate to convert the nature of the litigation by issuing an originating summons. However, since the parties knew exactly what the issue before the court was and they directed their evidence to the issue, the adoption of a wrong procedure was thus an irregularity and no cmbarrassment or prejudice to either party seemed to have ensured fram it 9. The defendant who had already remarried someone else during the life of the deceased was not his widow at the time of his death and thus she was mot entitled to the grant of his estate. On this ground the appeal would be dismissed, 10. The general rule is that in a probate action, just as in any civil litigation, the court must have before it and ensure that all persons whose interests may be adversely affected by the relief claimed are either joined as parties or are made cognisant of the action in order that such persons may be bound by the decision of the court and bring an end ta litigation, 11. In the instant case, since the pleadings and evidence referred to Teopista Nabukera as the rightful heir and/or personal representative of the deceased who, under the order of priority set out in tule 9, stands first, while brothers and sisters of the whole blood figure fourth in the order of priority, the trial magistrate should have, when the interest of Teopista Nabukera became obvious from a very early stage of the proceedings, taken steps to add her as a defendant and investigated her interest comprehensively. 12, The trial magistrate should have invoked the powers under Order I r.10(2) of the Civil Procedure Rules and added Teopista Nabukera as a second defendant in order to finalise the matters of dispute conceming the probate action.(77 CB. NALUVUGO v. HATEGYERIMANA 82 13. In the circumstances, since the defendant was not entitled to the grant of the deceased's estate the order that the letters of administration granted to her by the Magistrate Grade IT be revoked would be upheld. Apptal dismissed with costs. |! was ondered that elther the plaintif¥ or Teopista Ni might apply for the grant of letters of administration, in which event either might contes grant ij ith the law, ft ws a repare: and comprehensive inventory and accounts udministered $0 far, It was also ordered that the Gombolola chief who had kept some of the property of the deceased was to continue to have custody of it till the finalisation of the grant of letters of administration, but the. ‘Gombolola chicf was ta file a full inventory of such property in the trial court within. 30 days of the service of the order on him. of the estate of the deceased which she had chief wl ol ‘Administration of Estates (Small Estates) (Probate and Administration) Rules, 1972 - §.1 No. 104 of 1972, Rules 9, 10, Ll, 13, and 15(1) Civil Procedure Rules, Orders 1, 1. (2) and 34 rr.1 and 7. Book referred to; Trisiorum and Coote’s Probate Practice, 23" Edn. pp.533 and 634. Per Curiam: = Aceording to the English procedure, in order to extract a citation a draft is first prepared and lodged for settiement together with the will (if any) and any necessary papers, and until the citations is settled by the registrar an affidavit to lead thereto is not swom, At 538 of the volume 1 have referred to the principle to keep in and in drafting alt citations is that “you must set before the parties cited what is their interest and what is yours.” The English 2 rules specific provision to the effect that after the terms of the citation have been settled the plaintiff will file an affidavit verifying the stutements of fact in the citation, This is accordingly reflected in the wording of the citation which refers to an “ifidavit but this word has been substituted in our specimen with the words “statement on ath" ‘without there being a corresponding duty imposed on the court to take, or on the plaintiff to give, such evidence in verification of the contents of the citation, This Sbvious lacuma in the Rules should be supplied by appropriate amendment. In the meantime, where 80 much has been borrowed from foreign Law, it will not be offensive in any manner in my opinion to fellow the same practice which certainly seems more convenient....... _couMagistrates usually keep very busy and I feel that it would be adding to their tendon, albeit anly in rare cases of this sort, if they were required to take sworn(1977) 1.0.8, IN RE DHABULO —83 statements in support of the contents of the more conveniently, be sehieved by an affidavi tation which could quite easily, and perhaps “In the English procedure there is another citation: called the citation to see proceedings. According to Tristram and Coote's (supra) the object of this citation is to ensure that all persons having an interest in the proceedings are bound by the decision of the court. At »-634 the following comment appears in this respect: “In addition to the power of the court under Order 1, 1.10(2) to add persons as Partics to an action in order to ensure that alll matters in dispute may be effectively and completely determined and adjudicated upon, in a probate action a citation may be issued against any person who is not a Party to the action but has an adverse interest to that of the citor, notifying hin that if he does net enter an appearance in tke uction judgment may be given therein without further notice to him, This is known as a citation to see pmeeedings, AS qur Rules are based on the English Counter-part it is mystifying to see this citation to see proceedings completely omitted from our Rules. It seems to me that where some ‘oreign legislation is adapted core should be taken not only to see that it is properly adopted to meet the local conditions but also that the editing does nol produce 4 hutch patch result. However, the only possible reason for this omission appears to me the existence of similar powers to add parties in the Civil Procedure Rules ¢.g., Order 1, r1042)."" (BMW)