Ofwono Alfred Rezin v Ofwono Nankya Juliet and Another (Civil Suit 1065 of 2021) [2025] UGHCLD 75 (19 May 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) CIVIL SUIT NO.1065 OF 2021**

**OFWONO ALFRED REZIN ::::::::::::::::::::::::::::::::::::::: PLAINTIFF**

**(suing through her lawful Attorney Awoko Anna)**

**VERSUS**

# **1. OFWONO NANKYA JULIET 2. HON. NAGGAYI NABILAH SEMPALA ::::::::::::::::: DEFENDANTS**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING ON A PRELIMINARY OBJECTION.**

# *Introduction;*

- 1. This is a ruling in respect of a preliminary objection that was raised by the counsel for the 2nd defendant. - 2. The objection is based on a point that the plaintiff holds no locus standi to institute the instant suit on grounds that the powers of attorney authorizing him to bring this suit do not comply with the provisions of the Stamp Duty Act Cap 339.

*Background;*

3. The plaintiff instituted Civil Suit No.1065 of 2021 through his lawful attorney seeking for declarations that; he is the owner of the land and developments thereon found Mutungo Parish, LC1 Zone 3, Nakawa Division, a permanent injunction restraining the defendants jointly or severally from interfering with the plaintiff's quiet possession and enjoyment of the same, general damages, costs of the suit and any other remedies this court deems fit against the defendants jointly and severally.

## *Representation;*

4. The plaintiff was represented by Counsel Maschel Nyambok Omondi of Alliance Advocates whereas the 2nd defendant was represented by Counsel Ivan Ikoba Birungi & Co. Advocates and there was no representation from the 1st defendant. Both parties made oral submissions which I have considered in the determination of this objection.

*The Preliminary objection;*

i) The power of attorney be struck out for non-compliance with the Stamp Duty Act.

### *Resolution and determination by court;*

- 5. Counsel for the 2nd defendant submitted that the power of attorney in the instant case does not comply with the provisions of the stamp duty act and non-payment of the stamp duty renders the entire instrument inadmissible in law rendering the suit illegally before this court for want of locus. - 6. In reply counsel for the plaintiff submitted that the it is true stamp duty was not paid. However, it was never the intention of the drafters of the stamp duty act to curtail the party's right to a fair hearing as provided for under Article 28 of the Constitution. - 7. Counsel relied on the decisions in **Lamusa Majid vs Aramathan Nsadhu and Anor HCCA No. 20 of 2008 and Kensington Africa ltd vs Pankaj Kumar Hemraji Shah and Anor HCMA**

**No 687 of 2012** where court adjourned proceedings to allow the party pay stamp duty.

8. In rejoinder counsel for the 2nd defendant averred that the decisions cited by counsel for the plaintiff were decided before the enactment of the current Stamp Duty Act Cap 339 and the said decisions do not take away the mandatory provisions of the stamp duty act.

## Analysis by court;

- 9. The plaintiff brought this suit through his lawful attorney vide the power of attorney deponed on the 27th of February 2025. The subject of the said power of attorney is in respect to HCCS No. 1065 of 2021 herein referred to as the instant suit. - 10. The Stamp Duty Act Cap 339 under Section 14 states that; "*An instrument chargeable with duty which is wholly executed outside Uganda shall be stamped within thirty days of being received in Uganda"*

- *11.* The interpretation section of the said act defines stamped to mean *"that the instrument bears an impressed stamp of the proper amount and that the stamp has been affixed or used in accordance with the law for the time being in force in Uganda"* and *"stamped in any manner prescribed by the commissioner"* - 12. The power of attorney adduced in court does not bear proof of the same and It is not disputed by both counsel that the said power of attorney was not paid for stamp duty as provided for under Section 14 of the Stamp Duty Act. Section 31 of the same Act provides that instruments not duly stamped are inadmissible as evidence. - *13.* Drawing reference to the decision in *Akidi Hellen vs Ocii Alex, Misc. App. No 025 of 2023 before Justice Philip Mwaka* in resolving the respondent's objection relating to the power of attorney not complying with the Stamp Duty Act Cap 339 held as follows; *"this court is entrusted and vested with powers to prevent abuse of court process by virtue of*

*section 98 of the civil procedure act. The requirement of making payment of stamp duty is often understated, a review of relevant statutes indicates that a plethora of measures are in place to enforce the payment of the stamp duty… the scope ranges from the stamp duty act cap 339 stipulating chargeability as well as admissibility in evidence and prohibitions on acting on instruments not duly stamped. in regards to litigants, a line of authorities tends to place the emphasis on litigants relying on powers of attorney to comply with the relevant laws, the rationale is that its material to their locus standi and to an extent curbs unscrupulous abuse of process… in the final result, the court hereby dismisses the application without going into its merits.*

14. In the instant case the power of attorney that forms the basis of the locus standi in the instant suit does not comply with the provisions Section 14 of the stamp duty Act Cap 339. I agree with the submissions of counsel for the 2nd defendant

that the authorities referred to by counsel for the plaintiff are decisions that were reached before the current stamp duty act.

- 15. I am of the view that the power of attorney the plaintiff relies on in the instant case does not comply with the provisions of the law and the same cannot form the basis the plaintiff's locus standi in this court. - 16. The preliminary objection raised by counsel for the 2nd defendant is upheld by this court. - 17. Therefore, I hereby dismiss Civil Suit No 1065 of 2021 for lack of locus standi with no orders as to costs.

# **I SO ORDER.**

#### **NALUZZE AISHA BATALA**

#### **Ag. JUDGE.**

#### **19/05/2025**

### **Delivered electronically via ECCMIS on the 19th day of May 2025.**