Nagujja and Others v Dodoviko Mwanje (Civil Appeal No. 32 of 1999) [2000] UGHC 58 (11 September 2000)

Full Case Text

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL APPEAL NO.32 OF 1999

NAGUJJA & OTHERS APPELLANTS

#### VERSUS

DODOVIKO MWANJE i RESPONDENT

# BEFORE: THE HONOURABLE AG. LADY JUSTICE ANNA MAGEZI

R U . L I N G

Before of the hearing of the appeal Edmund 18 C. P. R and prayed to add the Administrator as He stated that the Administrator General had not been cited as party to the appeal by mere typing error or omission. He prayed to be allowed^to amend the plaint by seeking leave to add the fifth defendant. He was of the view that the application would not be prejudicial to the other party i.e the respondent. the ' commencement Wakida Esquire proceed^under Order 6 r General party.

Mr. Mbogo counsel representing the respondent strongly objected saying that this application would be prejudicial since the Administrator General had not indicated his desire ' to appeal within the specified time limit of filing an appeal. That in any case the present advocates did not represent the respondents in the lower court.

I have considered the arguments of both learned counsels. I wish to first dispose of the contention whether the present advocates represent the Administrator General as well as the rest of the appellants.

The record indicates that in the lower court as far as the final submission were written, Patrick Mugisha Esq represented all the defendants. This was on 29th April, 1999.

On 3rd May, 19 99 Mr. Mugisha filed an appeal without stating that he was not acting on behalf of all appellants. The implication is that he still acted for all unless otherwise proved. 40

Subsequently on 12th October, 1999 Katende, Sempebwa & Co Advocates gave notice of change of advocates from Mr. Mugisha to themselves. Similarly it can be assumed that they inherited the same number of all the former defendants turned appellants. They made no distinction amongst the appellants.

I am therefore of the opinion that Katende Sempebwa advocates and their agents have the capacity to represent the appellants.

Secondly, the application , legitimately? Learned counsel proceeded under Order 6 rule 18 whereby a court Was empowered to allow either party to alter or **XO** amend his pleadings in such manner and on such terms as may be the real questions in controversy between the parties. Learned counsel representing the appellants just in order to determine could the appellants counsel make

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placed further emphasis on Order 1 rule 10. He in particular alleged that the name of Administrator General was inadvertently omitted from that of the four appellants.

The provisions of Order 1 r 10 are that the court abeany stage of the suit if satisfied that the suit has been instituted through a bonafide mistake and that it is necessary for the determination of the real matter in dispute to do so order any other person to be substituted or added as plaintiff.

The court perused the entire record including that of the lower $10$ court to be able to determine this matter.

By a ruling dated 28th April, 1998, the lower court granted an application and joined the Administrator General as co-defendant. The lower court's judgement recognised the Administrator General as a co-defendant i.e defendant No.5. The judgement made no distinction amongst the defendants. The Administrator General was not discriminated in any way. There is no reason to believe t.hat $\quad\text{he}\quad$ was dropped as an appellant when the appeal was preferred. I am inclined to believe the argument that the Administrator General's name was erroneously or inadvertently omitted when the other appellants were cited. This could have been because all the records of the lower court did not change to include the Administrator General when he had been joined as co-defendant. It should be noted that even the judgement of his worship F. N. Othembe dated 29th April, 1999 cited Nagujja and 3 others. He went on to say however that the suit was initially

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against the first General was added as a fifth defendant by order of court. Clearly even at judgement time the Administrator General was not a distinct or additional party to the suit. It could have been this persistent legacy of lack of regard of the distinct party that bedevilled his recognition even in the instant suit. It is this error which the ' appellant's counsel wishes to cure. I am inclined to believe his . • court to finally determine the real matter in dispute. I have also taken into account and considered the allegations of learned counsel representing the respondent that the ' Administrator General could have been time barred since he did I respectively disagree. The circumstances of indicate that the Administrator General has been part and parcel of the litigants in this appeal but was erroneous or inadvertedly ignored by not being mentioned. In any case Order 1 rule 10 (5) provides that the person added or substituted limitation is .deemed service of summons. 3.0 tn begin on I cited as arguments that there is no ulterior motive other than for the *IO* Administrator General as a not take part when the appeal was preferred. four defendants and that the Administrator this case

Proceeding under the powers granted me by Order 1 rule 10, I have no hesitation in allowing the Administrator General's name to be added as an appellant in these proceedings.

I so order

Anna Magezi

11/9/2000 AG. JUDGE

**I certify that this is a true** *'C* ^pyoftheorigmai Registrar

# THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA. GIVIL APPEAL NO. 32 $\mathbf{OP}$ 1999

NAGUJJA & OTHERS 111..... APPELLANT

### $\overline{Y}$ S

DODOVIKO MWAHJE ... RESPONDENT

# ORDER

Upon hosring EDMUND WAXIDA esq counsel for the appellant and CHARLES MBOGO esq Counsel for the respondent. It is ordered that the Administrator General be added as an Appellant in the appeal.

$18$ September 2900 Dated at Kaupala this ... dar of

$18 \, \mathsf{d}$

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$10$

ANNA MAGEZI

AG. JUDGE

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**FER PAI** "ECEIPT No. Cremeral regulary ARY $\mathcal{F}(\mathbf{C}(\mathbf{C})\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^{\mathbf{A}}\mathbf{1}^$ $\mathbf{11} \mathbf{1}$ $111$