Mawerere v Madada (Civil Suit 9 of 2019) [2024] UGHC 962 (14 October 2024)

## THE REPUBULIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MUKONO

## **CIVIL SUIT NO. 09 OF 2019**

MAWERERE JOSHUA ....................................

## **VERSUS**

MADADA JOHN ....................................

# BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

### **RULING**

- This is a ruling on a preliminary objection raised by the Defendant's 1. counsel to the effect that the Plaintiff has no *locus standi* to file this suit for orders of compensation by way of refund of the burial expenses of the late Babirye Mercy, an order of compensation for the painful loss of life, an order of compensation for loss of expectation of life, general damages for bereavement, mental anguish and psychological trauma to the immediate family of the late, punitive and exemplary damages for negligence and reckless driving, and costs of the suit. - The genesis of this matter is that at all material times, the deceased $2.$ was an accountant by profession at Buikwe Local Government. On 3<sup>rd</sup> November, 2018, in Buikwe District along Jinja- Kampala high way, the Defendant who is the owner and the driver of motor vehicle registration No. UAW 144W Toyota Hiace negligently and recklessly drove the said

motor vehicle. As a result, the Defendant crushed and killed the deceased who was his passenger. As a result of this crush, the deceased who was healthy and able bodied sustained serious bodily injuries resulting into excruciating pain and death.

$\mathbf{3}$ The Defendant on the other hand denied the allegations of negligence, recklessness, loss of dependency, funeral expenses and the prayers sought in the plaint. He averred that he is a taxi driver with a valid driving permit and that on 3<sup>rd</sup> November, 2018, he was driving motor Registration No. UAW 144W Toyota Hiace from Jinja to Kampala. On 3<sup>rd</sup> November, 2018, the Defendant has never driven negligently or recklessly as alleged by the Plaintiff as the sketch plan attached does not show that the Defendant caused the accident. That he tried his level best to avoid the accident but it was inevitable thus will plead the defence of inevitable accident.

It should be noted that a preliminary objection was specifically $\overline{4}$ pleaded in the written statement of defence where it was stated that the suit is premature, discloses no cause of action, an abuse of court process, the plaintiff lacked of *locus standi* and was bad in law.

When the preliminary objection was orally raised on the $5<sup>th</sup>$ $5.$ October, 2023, the Plaintiff was represented by Counsel Babuma John who held brief for Counsel John Isabirye of M/s Isabirye & Co. Advocates The Defendant was represented by Counsel Shaban Sanywa of Sanywa, Wabwire & Co. Advocates. Both counsel filed written submissions with

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authorities for and against the preliminary objection, which I have closely studied and will consider in this ruling.

#### Issue

Whether the Plaintiff has no *locus standi* to institute Civil Suit No. 09 of 2019.

- $\overline{\mathbf{6}}$ The Defendant submitted that the Plaintiff who is an uncle to the deceased has no locus to file this suit against the Defendant.under the Law Reform (Miscellaneous Provisions), Act, Cap. 289, - $7.$ Counsel for the Defendant relied on section 6 of the Act which connotes that any actions brought under section 5 shall be for the benefit of the members of the family of the person whose death has been so caused, and shall be brought either by and in the name of the executor or administrator of the person deceased or by and in the name or names of all or any of the members (if more than one) of the family of the person deceased

Counsel further submitted that the aforementioned provision of the 8 law limits who can institute the matter and that it is limited to father. mother, son, daughter, adopted child, executor or a person holding letters of Administration of the deceased. And that this position was confirmed in the case Omony v. Attorney General, (Civil Suit No 579 of 2016) 2023 UGHCCD by Justice Esta Nambayo, where a defendant was an uncle to the deceased.

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$9.$ Counsel further submitted that under paragraph 3 of the plaint, the Plaintiff stated that he instituted the case as an uncle and repeated it in his witness statement. That the Plaintiff is not a proper person to institute the case as he is not part of the persons named in section 6 of the Law Reform (Miscellaneous Provisions), Act. Hence prayed that the suit be dismissed with costs to the Defendant.

$10.$ In reply to the preliminary objection, counsel for the Plaintiff emphasized that the Plaintiff had *locus* and indeed the suit was properly brought in the names of the Plaintiff as a member of the family of the deceased (late Babirye Mercy).

- Counsel invited this honourable court not to follow the decision of $11.$ Justice Esta Nambayo in Omony Charles v. Attorney General, H. C. C. S. No.579 of 2016, that was cited and relied upon by counsel for the Defendant because the facts of that case are distinguishable from the facts in the present case in the sense that in that case the Plaintiff had stated under paragraph 3 of the plaint that he was an uncle of the late Oyet Charles and yet in his witness statement, he stated that the late Oyet Charles was his cousin brother. That serious contradiction in the Plaintiff's relationship with the deceased is not the case with the present suit where the Plaintiff's relationship as uncle of the late Babirye Mercy is ascertainable from his pleadings under paragraph 3 of the plaint. - The plaintiff's counsel submitted that in arriving at its decision in 12. Omony Charles v. Attorney General (supra), the court overlooked an existing statutory provision relevant to the decision. That the court in its

decision did not consider the provision under section $I(I)$ (q) of the Workers Compensation Act, where the term member of the family is defined to include an uncle among others. And that in their considered view, the said decision is a decision that was made per incuriam. Further, that the Defendant's preliminary objection is misconceived. Counsel invited this honourable court to overrule the preliminary objection and proceeds to hear and determine the Plaintiff's suit on its merit.

In rejoinder, the Defendant's counsel reiterated and maintained $13.$ their earlier submissions and added that section $1(1)$ q of the Workers Compensation Act for the meaning of the member of the family does not apply to the claims brought under the Law Reform (Miscellaneous Provisions) Act. Cap. 289, that restricts the member of the family to father, mother, son, and daughter or an adopted child. That the Plaintiff being an uncle to the deceased has no *locus standi* to bring this suit as an uncle is not a member of the family.

## **Court's Analysis.**

Section 1 (b) of the Law Reform (Miscellaneous Provisions) Act, $14$ Cap. 289, defines member of the family. It states as follows:

"member of the family" has the same meaning as in the Workers Compensation Act: but for the purposes of this Act, a person shall be deemed to be the father or mother or son or daughter of a deceased person notwithstanding that he or she was only related to the deceased person illegitimately or in consequence of adoption; and, accordingly, in deducing any relationship which is included in this Act

within the meaning of the expressions "father", "mother", "son" and "daughter", any illegitimate person and any adopted person shall be treated as being, or as having been, the legitimate offspring of his or her mother and reputed father or, as the case may be, of his or her adopters;

15. Section 2 (1) of the Workers Compensation Act, Cap 233 states the definition of "member of the family". It provides thus:

> "member of the family" means the wife, husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, uncle, aunt, niece, nephew, cousin, or adopted child."

Section 5 provides for actions maintainable when death is caused $16.$ by negligence. It provides thus:

> "If the death of any person is caused by any wrongful act, neglect or default of any person, and the act, neglect or default is such as would, if death had not ensued, have entitled the person injured by it to maintain an action and recover damages in respect of it, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death was caused under such circumstances as amount in law to a felony."

Section 6 (1) of the Law Reform (Miscellaneous Provisions) Act, 17. Cap. 289 states thus:


"Every action brought under section 5 shall be for the benefit of the members of the family of the person whose death has been so caused, and shall be brought either by and in the name of the executor or administrator of the person deceased or by and in the name or names of all or any of the members (if more than one) of the family of the person deceased".

- 18. A keen interpretation of the definitions in the Law Reform (Miscellaneous Provisions) Act and the Workers Compensation Act brings out a conclusion that the meaning of "member of the family" has been expanded to include illegitimate and adopted children. An uncle is envisaged as a member of the family and as such has *locus standi* to file a suit for the benefit of the members of the family under the Law Reform (Miscellaneous Provisions) Act, Cap. 289. - In Dima Dominic Poro v. Inyani Godfrey, CA No. 17 of 2016, 19. where Justice Stephen Mubiru stated thus:

"the term locus standi literally means a place of standing. It means a right to appear in court, and, conversely, to say that a person has no locus standi means that he has no right to appear or be heard in a specified proceeding."

Locus standi to institute a suit must be established at the time of 20. filing the suit. Where there is no authority conferred upon a plaintiff to commence a suit, it means the suit is illegally commenced and such illegality cannot be cured by any subsequent attempt to create the lacking capacity. The determinant of the existence or otherwise of locus

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*standi and* the test to be applied is the requirement of sufficient interest in the subject matter of litigation, with the consequence that a person without sufficient interest in the subject matter of litigation cannot be heard

$21.$ Having heard both parties in this preliminary objection, I conclude that the Plaintiff did have *locus standi* to institute Civil Suit No. 9 of 2019 in the capacity of an uncle to the deceased. He is a member of the deceased's family as per section 2 (1) of the Workers Compensation Act, Cap 233 and could therefore institute a suit under section 6 (1) of the Law Reform (Miscellaneous Provisions) Act, Cap 289.

Therefore, I hereby overrule the preliminary objection raised by the Defendant's counsel with no order as to costs.

I so rule.

14th day of OCT, $2024$ by This ruling is delivered this .....

**FLORENCE NAKACHWA JUDGE.**

In the presence of:

(1) Counsel Isabirye John Kennedy from M/s Isabirye & Co. Advocates, for the Plaintiff:

(2) Ms. Irene Lwantale, Ag. the Court Clerk.