Komuhenda and 9 Others v Mugisa and Anor (Consolidated Civil Suit 33 of 2020; Consolidated Civil Suit 65 of 2021) [2024] UGHC 262 (29 April 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORTPORTAL CONSOLIDATED CIVIL SUITS NOS. 65 OF 2021 AND 33 OF 2020**


#### **BEFORE: HON. MR. JUSTICE VINCENT EMMY MUGABO**

#### **RULING ON PRELIMINARY OBJECTION**

### **Introduction**

This ruling arises out of a preliminary point of law raised by the counsel for the 1st defendant. The preliminary point of law is that the amended plaint by the plaintiffs, which excludes Imelda Banura as a party to the consolidated suit, offends Order 1 Rule 10(2) of the Civil Procedure Rules and therefore should be struck out.

### **Background**

The plaintiffs, together with Imelda Banura, filed Civil Suit No. 33 of 2020 against the defendants for, among others, a declaration that the suit land belongs to the estate of the late Yovita Kagoro. During the pendency of Civil Suit No. 33 of 2020, the plaintiffs applied for letters of administration of the estate of the late Yovita Kagoro vide Administration Cause No. 024 of 2021. The 2nd defendant lodged a caveat against the application which prompted the plaintiffs to file Civil Suit No. 65 of 2021 against the 2nd defendant so that the matters of controversy between the parties can be determined on their merit. However, both suits were later consolidated and Imelda Banura, the 1st plaintiff died, before filing the amended plaint.

When the amended plaint was filed, Counsel for the 1st defendant raised a preliminary objection that the omission of Imelda Banura in the consolidated plaint offends Order 1 Rule 10 of the Civil Procedure Rules to the extent that the omission was done without leave of the court and ought to be struck out.

### **Representation and Hearing**

Mr. Musinguzi Benard represents the plaintiffs. Mr. Wahinda Enock represents the 1st defendant while Mr. Luleti Robert represents the 2nd defendant. Both Counsel for the 1st defendant and plaintiffs filed written submissions which I have considered in this ruling.

## **Issues for determination**

The issue for this court determination is whether the amended plaint in consolidated Civil Suits Nos. 33 of 2020 and 65 of 2021 should be struck out for offending Order 1 Rule 10(2) of the Civil Procedure Rules.

# **Submissions by Counsel**

Counsel for the 1st defendant submitted that the amended plaint ought to be struck since it omitted the 1st plaintiff in the respective suits without leave of court which offends Order 1 Rule 10(2) of the Civil Procedure Rules.

On the other hand, counsel for the plaintiffs submitted that the omission of Imelda Banura in the consolidated plaint was a bonafide mistake of counsel which should not be visited on the litigant. Counsel for the plaintiffs also argued that the omission was not fatal since it could be rectified by the joinder of the administrator of the estate of the late Imelda Banura upon obtaining letters of administration.

Counsel for the plaintiff referred this court to order 1 rule 9 of the Civil Procedure Rules which is to the effect that no suit shall be defeated because of misjoinder or non-joinder of parties and the court may in every suit deal with the matter of controversy so far as regards the rights of and interests of the parties actually before it.

Counsel for the plaintiff also referred this court to the case of *Walimu Cooperatives Savings & Credit Union Vs. Okumu Benjamini and Another Misc. Application No. 101 of 2022* where the court held that a suit should not be dismissed by non-joinder of parties.

In his submissions in rejoinder, counsel for the 1st defedant argued that the principles of misjoinder or non-joinder of parties do not apply to this case since the party had been omitted by counsel in amended pleadings without the leave of court. Counsel for the 1st defendant also argued that the omission of Imelda Banura could not be rectified by substituting her with the administrator of her estate yet she is not a party in the amended plaint.

# **Consideration by Court**.

It is not in contention that Imelda Banura died before counsel for the plaintiff filed the amended plaint but during the pendency of Civil Suits No. 33 of 2020 and 65 of 2021.

The foregoing would imply that at the time of the filing of the amended plaint, Imelda Banura was a non-existing party. Therefore, with due respect to the argument of counsel for the 1st defendant, there is no way the amended plaint would have included Imelda Banura, as the 1st plaintiff, yet she was a non-existing party at the time.

The principles that the court applies upon the death of a party or parties to a suit are found in Order 24 of the Civil Procedure Rules. Order 24 Rule 2 of the Civil Procedure Rules provides thus:

> *"Where there are more plaintiffs or defendants than one, and any one of them dies, and where the cause of action survives or continues to the surviving plaintiff or plaintiffs alone or against the surviving defendant or defendants alone, the court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants."*

I have perused the pleadings in both Civil Suits Nos. 33 of 2020 and 65 of 2021 and established that the plaintiffs including the 1st plaintiff, Imelda Banura, filed the said suits in their capacity as beneficiaries of the Late Yovito Kagoro. In both suits, Imelda Banura has no claim or cause of action that is independent of the claim or cause of action of the rest of the plaintiffs. Therefore, I am inclined to believe that the case before me is one where the cause of action survives or continues to the surviving plaintiffs.

In the premises, to protect the surviving claim of Imelda Banura the legal representative should be added.

Consequently, the 1st plaintiff's preliminary objection is overruled since Order 24 Rule 2 of the Civil Procedure Rule allows continuation of the case.

Therefore consolidated suits Nos. 33 of 2020 and 65 of 2021 shall proceed against the defendants.

The matter shall be heard on merit and is hereby fixed for mention on the 6th day of September 2024 at 9: 00 am.

It is so ordered.

Dated at Fort Portal this 29TH day of APRIL 2024.

**Vincent Emmy Mugabo Judge 29/APRIL/2024**