Barazar & 4 Others v Mukhwana & 36 Others (Miscellaneous Application 267 of 2022) [2024] UGHC 855 (11 September 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# MISC. APPLICATION NO.0267 OF 2022

# [ARISI NG FROMCIVIL SUIT NO. 0011 OF 2017]

- 1. BARAZAR SADIKI................................... - KAZI BEN - 3. CHELANGAT MICHAEL - 4. CHEBET ROGERS MUTISHA (The lawful attorney of Sange Mama Barazar) - 5. NDIWA KAPYIYES KAPKWESAT

#### **VERSUS**

- 1. MUKHWANA ELIUD - 2. NYONGERA ALFRED - 3. NAANYA MORISA - 4. WANYAMA JOHN - 5. MATAYO WEKESA - 6. WEKESA JOHN - 7. WAFULA FRANCIS - 8. NALUKESI DISMAS - 9. SITUMA DAVID - 10. SUGUTI TOM - 11. PALUKU DAVID - **12. MUSUNGU DICKSON** - 13. SIDAN JACOB

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$\tilde{\mathcal{H}}$

MA-

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| | 14. WAMALWA WILLIAM | | |----|-----------------------------------------------------------|--------------------| | 30 | 15. GABRIEL KAFUNJA | | | | 16. NALYANYA WILLIAM | | | | 17. NASIKE PRISIKA | | | | 18. BEDIKHO | | | | 19. WANJALA CHARLES | | | 35 | 20. PARASA DAVID | | | | 21. NEKESEA JOSEPHINE | | | | 22. SIMIYU ALBERT | | | | 23. KHAUKA MARGARET | | | | 24. MATOLOTOLO ALBERT | | | 40 | 25. NYONGESA SIMON | | | | 26. WANYAMA PHILLIP | | | | 27. KHAEMBA BERNARD | | | | 28. BENEDICTO KUTOSI | | | | 29. KISSA AMOS | | | 45 | 30. BWANUSU AMOS | | | | 31. OPICHO DAVID | | | | 32. KAMILI STEPHEN | | | | 33. MASIBAYI ABSOLOM | | | | 34. MUKHWANA ENOKA | | | 50 | 35. MUMYA PAUL | | | | 36. NASUR KIBET | | | | 37. CHEMONGES MICHEAL____________________________________ | RESPONDENTS |

# **BEFORE: LADY JUSTICE MARGARET APINY**

# **RULING**

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Background 55

> The applicants brought this application under Section 98 of the Civil Procedure Act, Cap 71 (now 282), Order 1 rule 10(2) and Order 52 rules 1, 2 and 3 of the Civil Procedure Rules for orders that;-

1. The applicants be added as defendants in Civil Suit No. 0011 of 2017.

2. Costs of the application be provided for.

The grounds of the application as set out in the application and the affidavit in support of the application deponed by Mr Kazi Ben, the 2nd applicant are briefly that;

- 1. He and other applicants are the lawful attorneys of Sange Mama Barazar who is the lawful owner of part of the suit land measuring approximately 660 acres situated at Ayprei village, Korite A parish, Kiriki sub-county, Kween district. - 2. The land originally belonged to the now late Mangusho Kapsiker who occupied the suit land in the early 1920s. - 3. Following the acquisition the late Mangusho Kapsiker assumed quiet and peaceful possession of the said land, and established thereon a homestead which he used as his residence while utilizing the other portion for crop cultivation and cattle grazing. - 4. Upon settlement, the late Mangusho Kapsiker married the late Mukowa Kokop Barazar and bore Sange Mama Barazar on the suit land in 1937. - 5. In the 1960s Sange Mama Barazar got married to Cherop Kamakiro who moved to her husband's home in Chema and they bore the 1st applicant. - 6. Due to insec urities in the area in the 1970s, late Mangusho Kapsiker fled and settled in West Pokot with wife and daughter until his death in 1975. - 7. Upon his death, the suit land was inherited by his wife Mukowa Kokop Barazar and his only daughter Sange Mama Barazar.

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- 8. Unfortunately Mukowa Kokop Barazar died in 1977 leaving Sange Mama as the lawful beneficial owner of the said property. - 9. In 2012, Sange Mama Barazar and the 1st applicant returned to Uganda and found the suit land flooded by water from Sit stream which borders the land. - 10. The suit land at that time had no occupants. - 11. In 2016, Sange Mama Barazar and the 1st applicant returned to Uganda and found the suit land being cultivated by unknown people whom they were told would leave the suit land after harvesting rice. - 12. When Sange Mama Barazar and the 1st Applicant tried to take possession of the suit land after returning from West Pokot in 2019, they were surprised to learn that Mumya Paul together with his allies were cultivating the suit land and claiming ownership of the suit land. - 13. Mumya Paul has never been the lawful owner of the suit land and property. - 14. Sange Mama Barazar is aware that she was not added as a party to HCCS No. 0011 of 2017, Mukhwana Eliud & 33 Ors versus Mumya Paul & 2 Ors as a ploy to abuse court process and keep court from the truth. - 15. Once the applicants are added as parties to the instant suit, they will be able to defend Sange Mama Barazar's interests on the suit land. - 16. The respondents will not be affected ted in any way once the applicants are added as parties but the same will guide this court to fully adjudicate the matter - 17. It is just and equitable that the applicants be joined as parties to the suit since Sange Mama Barazar's proprietary rights will be affected by orders sought for by the respondents and she will suffer irreparable damage. - 18. The interest of justice warrants that the orders sought be granted.

The 35th respondent, Mr. Mumya Paul deposed an affidavit in reply in which he denied the content of the affidavit in support of the application and contended that Sange Mama Barazar

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is not the owner of the suit land and further that the applicants are not her lawful attorneys, 105 hence cannot be added as defendants to the suit since they do not claim ownership of the suit land.

He contended that he is the owner of the suit land measuring approximately 600 acres at Ayerei (Ayorei) village, Korite A parish, Kiriki sub county, Kween district.

- He averred that by 1920 the 2nd applicant was not yet born hence his allegations that the late 110 Mangusho Kapsiker occupied the suit land is false as the late Mangusho Kapsiker never occupied and used the suit land before 1970. He further averred that he is the owner of the suit land measuring approximately 600 acres and has been in possession since 1989 and he is still in possession. - That the 600 acres formerly belonged to his grandfather, the late Zakayo Kapkwesat and 115 upon his death, the same was customarily inherited by his late father Zabuloni Mwanga who gave him in 1989. He averred further that the $2nd$ applicant's affidavit in support of the application does not disclose any grounds for adding the applicants as defendants to the suit.

He was advised by his lawyers, Kob Advocates that the application is intended to add the applicants who do not claim any interest in the suit land which they allege belongs to Sange 120 Mama Barazar, hence the applicants cannot be added as defendants, for that reason the application lacks merit and ought to be dismissed. That he was further advised by his lawyers, Kob Advocates and solicitors that the application is filed against the 5th and 29th deceased persons which renders it incompetent.

He was further advised by the said lawyers that the applicants did not attach Powers of 125 Attorney to the application which renders them incompetent.

He contended that the application lacks merit and prayed that it be dismissed.

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The $2^{nd}$ , $4^{th}$ , $6^{th}$ , $7^{th}$ , $8^{th}$ , $9^{th}$ $10^{th}$ , $11^{th}$ , $12^{th}$ , $14^{th}$ , $15^{th}$ , $16^{th}$ , $17^{th}$ , $19^{th}$ , $20^{th}$ , $21^{st}$ , $22^{nd}$ , $23^{rd}$ , $24^{th}$ , 25th, 26th, 27th, 28th, 30th & 34th respondents filed an affidavit in reply deposed by Mukhwana Eliud in which he contended that he and donors to the powers of attorney have no objection to the applicants being added as defendants to Civil Suit No. 0011 of 2017. He prayed that costs of the application be in the cause.

Similarly, the 36th and 37th respondents filed an affidavit in reply deposed by Mr. Chemonges Micheal in which he contended that he and the 36th respondent do not object to the applicants being added as defendants in Civil Suit No. 011 of 2017 and prayed that costs of the application be in the cause.

# **Representation**

At the hearing, Mr. Watulo Cornelius held brief for Mr. Nabende Isaac who represents the applicants. Mr Tonny Okwenye appeared for the 35th respondent, Ms. Moreen Nyafwono held brief for Mr. Obedo Deogratious who appeared for the 36th and 37th respondents while Ms. Luchivya Faith appeared for the 1st to the 34th respondents.

When the matter came up for hearing, counsel for the $1^{st}$ – $34^{th}$ , $36^{th}$ and $37^{th}$ respondents informed court that they consented to the application while counsel for the 35th respondent objected to the application and informed court he intended to raise a point of law that would dispose of the application in its entirety.

Accordingly, court issued directions for filing submissions with the preliminary objection to be raised in the submissions. Parties complied and filed their respective submissions which have been considered by court in the determination of this application.

# Preliminary Objection.

In his brief written submission, counsel for the 35th respondent raised two points of law to the effect that the application was filed without a power of attorney or authority and secondly that the application was filed against the 5th and 29th respondents who are deceased.

Submissions 155

#### 35th respondent's submission

## 1. No Powers of attorney or authority

Counsel submitted that the applicants instituted the application as lawful attorneys of Sange Mama Barazar, however, the application does not contain the registered powers of attorney. He cited Order 3 Rule 1 and Order 1 Rule 12 to support his proposition. He contended that non-compliance with Order 1 Rule 3 renders the application incompetent. He prayed the application be dismissed.

#### Applicants' submission.

Counsel for the applicant contended that he agree with the submission of counsel for the respondent in respect of Order 1(12) and Order 3(1) of the Civil Procedure rules, however, 165 he added that the 1st -4th applicants are lawful attorneys of Sange Mama Barazar and the 5th applicant applied to be joined in his individual capacity. He added that the registered powers of attorney were filed on the 16th of September 2022 and served on the respondent who declined to accept service. He invited court to overrule the objection.

He contended further that the 5th applicant authorized and attached the authority to depone 170 the affidavit in support on his behalf, hence nothing is incompetent about the application.

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# 2. Deceased respondents

#### 35th respondent's submission

Counsel submitted that the applicant filed a suit against the 5th and 29th respondents who are 175 deceased. He contended that a suit against a deceased person is incompetent and ought to be dismissed with costs.

## Applicants' submission

The applicant submitted at the time of filing the application, the unfortunate demise of the 5th and 29th respondents was not known to all the parties until the 17th March 2023 when the 180 application came up for hearing. He submitted that it is unjust to fault the applicants for not knowing of the demise of the 5th and 29th respondents. He prayed that the point of law be overruled.

#### Determination.

I have reviewed the pleadings on record, the supporting documents and the respective 185 submissions of both parties on point of law.

Counsel for the 35th respondent contends that the application is incompetent for failure to attach powers of attorney to the application.

This court held before in the case of Paul Rawlins & 2 others vs Christ Alive Glorious Ministries International HCMA No. 311 of 2022, that;

Order 7 Rule 14(1) requires that the plaintiff must present the document on which they are suing upon at the time a plaint is presented, such documents include powers of attorney and letters of administration which vest a party with powers or locus standi to sue. (See Mutebi Sula vs Nam Chau Trading Co. Ltd HCMA No. 04 of 2020)

# $MA$ .

Order 7 Rule 14 provides thus; 195

(1) Where a plaintiff sues upon a document in his or her possession or power, he or she shall produce it in court when the plaint is presented, and shall at the same time deliver the document or a copy of it to be filed with the plaint.

(2) Where a plaintiff relies on any other documents (whether in his or her possession or power or not) as evidence in support of his or her claim, he or she shall enter the documents in a list to be added or annexed to the plaint.

In the case of Frakudin Vallibhai Kapasi & anor vs Kampala District Land Board & anor HCCS No. 570 of 2015 on page 12, it was held that the provision of order 17 rule 14 (1) is mandatory since the documents envisaged under the rules are the ones that vest a party with to institute a suit.

Further in the case of Unicofi Ltd Vs Interfreight Forwarders Civil Suit No. 912 of 1996 Hon. J Ntagoba observed that;

".... Order 7 Rules 14 and 15 govern the procedure at the inception of the case and warn the opposing party of what documents to expect. Failure to comply with Rules 14 and 15 of the *Civil Procedure Rules takes the opposing party by surprise.."* (underlined for emphasis)

It follows that every pleading must be presented with a copy of powers of attorney at the time of institution the proceedings to cloth the party with the requisite locus standi to institute proceedings.

In the instant case, it is evident from the heading of the Notice of Motion that the $1^{st} - 4^{th}$ applicants are lawful attorneys of Sange Mama Barazar. I have perused the affidavit in 215 support of the application to establish the capacity in which the 5th applicant applies to be added to the main suit and established that he is equally alleged to be a lawful attorney of

Sange Mama Barazar as can be discerned from paragraph 2 of the affidavit in support of the application wherein the deponent states that;

".... I and the other applicants are the lawful attorneys of Sange Mama Barazar, who is the 220 lawful owner of part of the suit land measuring approximately660 acres situate at Ayorei village, Korite A parish, Kiriki sub-county, Kween district" [Emphasis added].

Given the above, it is therefore not true that the 5th applicant instituted the suit in his own name and right since there are no averments in the affidavit in support of the application to establish such a cause of action as contended by counsel for the applicant.

Whereas the applicants purport to be lawful attorneys of the said Sange Mama Barazar, it is evident that the notice of motion was not presented together with the powers of attorney at the time of filing which renders the application entirely incompetent.

It is a settled position of the law that illegality once brought to the attention of court should not be condoned. (see Makula International Vs Cardinal Nsubuga Wamala (1992) HCB)

Considering the above, I am constrained to uphold the point of law and dismiss the application for failure to comply with order 7 rule 14 of the Civil Procedure Rules.

I don't need to consider the 2nd point of law since the 1st point of law has succeeded and disposes of the application.

The application is hereby dismissed with costs. 235

I so order.

Dated this 11th day of September 2024.

Margar

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