Malinga & 6 Others v Kapchorwa Moslem Supreme Council (Civil Appeal 194 of 2018) [2025] UGHC 24 (28 January 2025)

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT MBALE

### CIVIL APPEAL NO. 194 OF 2018

## (ARISING FROM KAPCHORWA CIVIL SUIT NO. 194 OF 2009)

#### 1. GEOFREY MALINGA

- 2. JESCA CHEROTWO - 3. DANIEL CHEPKURUI - 4. FRED TONGO - 5. PAUL KIWANUKA - 6. MICHEAL BUKOSE - **::::::::::::::::::::::: APPELLANTS** 7. SAUL DISI ::::::::::::::::::::::::::::::::::

#### **VERSUS**

## KAPCHORWA MUSLIM SUPREME COUNCIL ::::::::::::::::::::::::::::::::::::

#### **BEFORE: HON. JUSTICE LUBEGA FAROUQ**

#### **JUDGMENT**

#### 1. Introduction:

instituted suit the Appellants/Plaintiffs $\overline{a}$ against 2. The Defendant/Respondent for among other orders and declarations that the Respondent is a trespasser on the Appellants' land measuring approximately 17 acres, situate at Kaptobonwo village, Kawowo Parish, in Kapchorwa Town Council, vacant possession of the suit land, damages and permanent injunction.

#### 3. Background:

4. The 1<sup>st</sup> and the $2^{nd}$ Appellants' case was that they acquired their respective parcels of land on the suit land by way of inheritance from their parents. The other Appellants claimed that they acquired their portions of land on the suit land by way of purchase from a one Barteka Musa. They all stated that they had been on the land until the Defendant forcefully trespassed thereon, and fenced it.

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- 5. The Appellants also contended that the Defendant's lease on the suit land had lapsed, and that once the lease expired it reverted back to the controlling authority, the District land Board. - 6. On the other hand, the Respondent denied the Appellants' claim and contended that it is the lawful owner of the suit land having acquired it under a lease comprised in LRV 2499 Folio 16 of 22-07-1996. That after acquiring the suit land, the Respondent was granted an occupation permit, developed the suit land by establishing a primary school, a mosque and a health center thereon. - 7. That later on, the Respondent's lease on the suit land expired, and the Respondent got entangled with renewal/ extension of the lease process with Kapchorwa District Land Board until when the Respondent moved this court for orders of mandamus and certiorari directing Kapchorwa District Land Board to renew and, or extend the Respondent's lease on the suit land which were granted by the High Court vide HCT-04-CV-MC-0011-2009.

#### 8. Issues for determination before the trial court:

- 9. The issues for determination before the trial court were that - *a) Who is the rightful owner of the suit land?* - *b) Whether the leased land convened the Plaintiffs' land?* - *c) Whether the Defendant was entitled to an extension of the lease?* - *d) What remedies are available to the parties?* - 10. Upon hearing the evidence of both parties, the trial court found that the Appellants had failed to prove their case on balance of probabilities, and thus the trial magistrate declared and ordered that- the Defendant is the rightful owner of the Suitland, issued an order of permanent injunction restraining the Appellants/Plaintiffs from entering, trespassing unto the Suitland, gave an order of vacant possession, awarded general damages of Ugx $35,000,000/$ = (Thirty five million shillings) and costs of the suit. - 11. The Appellants were dissatisfied with that decision hence this appeal.

#### 12. Grounds of Appeal:

- a) The learned trial magistrate erred in law and fact when he held that the Respondent is the rightful owner of the suit land; - b) The learned trial magistrate erred in law and fact when he issued an order of permanent injunction restraining the Appellants from entering *the suit land;* - c) The learned trial magistrate erred in law and fact when he held that the Respondent rightly applied for the extension of the lease to the *suit land;* - d) The learned trial magistrate erred in law and fact when he granted *an order for opening of boundaries of the suit land;* - *e) The learned trial magistrate erred in law and fact when he awarded* the Respondent general damages of Ugx $35,000,000/$ = which is over *and above his pecuniary jurisdiction;* - f) The learned trial magistrate erred in law and fact when he failed to properly evaluate the evidence on record thus causing a miscarriage of justice.

#### 13. Legal Representations:

- 14. At the hearing of this appeal, the Appellants were represented by M/s JByabakama & Co. Advocates, and the Respondent was represented by M/s Makmot-Kibwanga & Co. Advocates. - 15. The parties filed written submissions through their respective Advocates, and the same have been considered in determination of this appeal.

#### 16. Duty of the first appellate court:

17. The duty of this court as the first Appellate court is to re-appraise the evidence adduced at trial and subject it to a fresh and exhaustive scrutiny, weighing the conflicting evidence and drawing its own inferences and conclusion. (See the case of Fredrick Zaabwe v Orient Bank SCCA No. $04/2006$ .)

#### 18. Analysis of court:

19. The Respondent's counsel raised a preliminary objection in the Respondent's written submission to the effect that the original suit was filed against a non-existing person. I will first deal with the objection raised by the Respondent, and proceed on to the merits of the appeal depending on the outcome of the objection.

#### 20. Preliminary objection:

- 21. The Respondent submitted that the original suit was filed against a nonexisting person. That the Respondent is not a body corporate but a branch of the Uganda Muslim Supreme Council which is a body corporate. It was further submitted that the Respondent cannot sue or be sued and therefore, this appeal is a moot. Reference was made to DEX 1 (certificate of title) for the proposition that the registered proprietor of the suit land is Uganda Muslim Supreme Council (UMSC), but not the Respondent. - 22. The Appellants on the other hand submitted that whereas the suit in the trial court was filed against the Respondent, the Respondent equally filed a counterclaim in its name as "Kapchorwa Muslim Supreme Council" which in law is a separate suit against the Appellants, and it's on the basis of the counterclaim that the trial magistrate granted the Respondent the reliefs sought hence this Appeal. - 23. Counsel for the Appellants cited the case of Osman Kassim Ramathan V. Century Bottling Company Limited SCCA No. 10 of 2020, where it was held that a non-existent entity cannot maintain a cause of action because it has no legal existence. - 24. It was further submitted for the Appellants that the Respondent's counter claim should not have been considered by the trial magistrate as the Respondent had no legal existence to maintain the counter claim.

#### 25. Determination of the preliminary objection

26. According to the Appellants pleadings in the lower court, under paragraph 8 of the amended Plaint that was filed on $17/10/2009$ , the expression therein is that Civil Suit No. 194 Of 2009 was brought against Kapchorwa Supreme Muslim Council which is a body corporate that can be sued in that capacity.

27. It therefore follows that Civil suit No. 194 Of 2009 was instituted by the Appellants against a company /an artificial person. Section 1 of the Companies Act, Cap. 106 provides for the definition of a company. It states that-

> "A company means a company formed and registered under this Act or an existing company or are-registered company under this Act"

- 28. It is a well settled position of law is that a plaintiff has a right to sue whoever he or she holds a cause of action against. However, in matters proceeding against a company, the Plaintiff is expected to preliminarily first ascertain from the Registrar of companies to establish the existence and the correct names of the company he or she intends to institute a suit against. - 29. According to the Companies Act Cap.106, a certificate of incorporation serves as the conclusive evidence of existence of that artificial person. Section 20 of the Companies Act, Cap.106 is to the effect that-

"*A certificate of incorporation given by the Registrar in respect of any*" association shall be conclusive evidence that all the requirements of this Act in respect of registration and matters precedent and incidental to registration have been complied with and that the association is a company authorized to be registered and duly registered under this Act"

- 30. In the trial court, the appellants filed Civil Suit No. 194 Of 2009 against the Respondent in the trial court, and the Respondent emerged the victor hence this appeal. It is now contended by the Respondent that civil suit No. 194 Of 2009 proceeded against a non-existing entity. - 31. The record of the trial court does not indicate whether the certificate of incorporation was tendered in court to prove the Respondent's legal status. Indeed the burden to ascertain and prove the legal personality of

the Respondent was on the Appellants who indicated in their pleadings that the Respondent is a body corporate that can be sued.

- 32. It is an established principle in all civil cases that the burden to prove the existence or non-existence of a fact lies on the party who wishes court to believe so. - 33. Section 103 of the Evidence Act, Cap.8 provides that-

"The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by *any law that the proof of that fact shall lie on any particular person.*"

- 34. In the Appellants' written submissions in rejoinder, they conceded to the fact that the Respondent is a non-existent entity, but rather seek to ride on the fact that the Respondent validated their claim in the trial court by filling a counter claim in the same name through which it obtained a judgment in its favour. - 35. Notably, the Appellants contradict themselves by submitting that the Respondent's counter claim ought to have failed in the trial court because the Respondent had no legal existence to maintain the counter claim. The Appellants invited the attention of this court to the case of Osman Kassim Ramathan vs Century Bottling Company Limited SCCA No.10 of 2020, in which the Supreme Court held that-

"A non-existent entity cannot maintain a cause of action because it has no legal existence."

- 36. I have observed from the submissions of both parties, and the record of the court in quo particularly the parties' pleadings that there exists no registered company in the name of the Respondent. The certificate of title comprising of the suit land which was tendered in court as DEX1 is registered in the name of Uganda Muslim Supreme Council, Kapchorwa, but not in the Respondent's name. - 37. I have properly addressed my mind to the record of the lower court, I find that there is no evidence on record that was led during trial to prove that the Respondent is a registered entity or that the Respondent is registered

proprietor of the suit land. The interpretation of this observation is that Civil Suit No. 194 Of 2009 was not tenable for the obvious fact that the Respondent (then Defendant/Counter claimant) is devoid of legal personality to sue or be sued in that capacity.

- 38. It is trite law that if a suit is instituted in the name of the company that does not appear in the register book of the Registrar of companies, that suit is a nullity, and is not tenable at law as the same is brought against a non-existent entity or party. - 39. In the recent Court of Appeal case of **Micheal Mukhono V. Alice Kimono** Kimaswa, Civil Appeal No. 074 of 2021 citing with the approval the case of Uganda Freight Forwarders Association and Another as. Attorney General" Constitutional Petition No. 22 of 2009, it was held that-

"It is an elementary principle of law that an unincorporated" association is not a legal entity capable of suing or being sued. A suit *by an unincorporated body is a nullity. In my view, by extension, it is* also a nullity if a suit is based on a benefit accruing to a non-existent entitu".

- 40. The other Appellants' argument was that whereas the suit in the trial court was filed against the Respondent, the Respondent equally filed a counterclaim in its name as "Kapchorwa Muslim Supreme Council" which in law is a separate suit against the Appellants, and it's on the basis of the counterclaim that the trial magistrate granted the Respondent the reliefs sought hence this Appeal. - 41. I have already stated above that a non-existent entity cannot maintain a cause of action because it has no legal existence. It cannot sue or be sued. This court has previous dealt with the case of **Bugisu Muslim District** Council V. Musa Kalokola & 2 others Misc. App. No. 105 of 2024 which is almost on all fours with the instant case, this court observed that-

"Having sued a wrong party, it follows therefore that the Respondent's plaint does not disclose a cause of action against the Respondent."

42. More so, it is now accepted on the basis of the authority in the case of Mukula International Limited V. His Eminence Cardinal Nsubuga and Anor Civil Appeal No. 4 of 1981 that-

> "An illegality, if proven, taints a suit or any relief granted by the Court, and if brought to the attention of court, it overrides all the manner of pleadings."

- 43. On the basis of the above reasons, it is the finding of this court that Civil Suit No. 194 of 2009 was instituted against a non-existent party, and as a result, this appeal is unsustainable since it arises from a nullity suit. - 44. I accordingly uphold the Respondent's objections with the following orders that- - a) The appeal is hereby dismissed. - b) No order is made as to costs since the Respondent is a non-existent entity that cannot carry out execution of orders of this court.

I so order.

# **LUBEGA FAROUO** Ag. JUDGE

Judgment delivered via the emails of the advocates of the parties on the $28<sup>th</sup>$ of January, 2025