Oyam District Local Government v Aluku (Revision Application 43 of 2021) [2025] UGHC 14 (16 January 2025)

| 5 | THE REPUBLIC OF UGANDA | |----|-----------------------------------------------------------| | | IN THE HIGH COURT OF UGANDA<br>HOLDEN AT LIRA | | | REVISION APPLICATION NO. 43 OF 2021 | | 10 | (ARISING FROM RULING IN<br>LAND CLAIM NO. 003 OF 2017, | | | FORMERLY LODGED IN THE CHIEF MAGISTRATES COURT<br>OF LIRA | | | HOLDEN AT ANYEKE, AND PRESENTLY THE CHIEF MAGISTRATES | | 15 | COURT OF OYAM AT OYAM) | | | OYAM DISTRICT LOCAL GOVERNMENT………………………. APPLICANT | | | VERSUS | | | ALUKU GRACE……………………………….…………………RESPONDENT | | 20 | |

## **BEFORE: HON. MR. JUSTICE GEORGE OKELLO**

## **RULING**

By letter dated 14. 10.2021, the Applicant asks this court to revise the ruling of His Worship Matyama Paul, the then Magistrate Grade One of 30 Oyam Magistrates Court. The Applicant who is defendant in the main suit, orally applied by counsel, Ms. Amolo Shamim, that the trial court adds Wilobo Pe Ongeo cooperative society as co-defendant to land claim No. 003 of 2017. The learned Magistrate declined the application with costs in the cause. Court gave its ruling on 14 September, 2021. Noting that the suit 35 qualifies as backlog case, the court gave the applicant/defendant up to 28 September, 2021 to file witness statement(s) and serve the respondent/

plaintiff. Court fixed the suit for defence for 26 October, 2021, conscious

5 to conclude it in one day. The case hearing did not take off given that the applicant decided to challenge the court ruling vide the present application.

By way of background, the respondent filed the land claim on 24 January,

- 10 2017. She seeks for an affirmative declaration of ownership of the suit land situated within Amwa Trading Centre, Amwa Parish, Myene Sub-County, Oyam District. She avers that she inherited the suit land from her late husband. Although the land size is not pleaded, in her testimony, the respondent states that it is 30 by 25 metres. The late husband was given - 15 40 by 80 metres by his father, but as noted, a smaller portion is in dispute. The respondent holds letters of administration to the late husband's estate. He was a UPDF Officer resident in Bombo at the time of his death. Bombo was apparently a work place. The widow nursed the husband there in sickness. The respondent was using the suit land for settlement. The - 20 family planted bananas, mangoes, palm trees, among others. The remains of the father-in-law and two of the respondent's children were interred on the suit land. On it stood two grass-thatched houses and one permanent house. It appears during his life time, the father-in-law gave some an undisputed portion of land measuring 10 by 28 metres for building a 25 cooperative society store. It appears a store was indeed built. It is not, however, clear whether the society structure and the society itself still exist.

In 2015, while in Bombo, the respondent was alerted by a brother-in-law that the houses were being demolished and bananas being cut down by agents of the Applicant (M/s Kakain Engineering Ltd). It was alleged the demolition was on the instruction of the applicant's Chief Administrative

- 10 Officer. The respondent returned home in 2016 only to find the permanent house demolished and other property destroyed and damaged. She alleges she had nowhere to bury the late husband. The respondent thus prays for compensation for the lost property. Although not pleaded, the respondent values the property at shs. 19,340,000. She stated (without prejudice) that - 15 she would be willing to forfeit the suit land if the applicant showed willingness to compensate for it. Otherwise, she maintains the prayer for declaration of ownership; an order of vacant possession; a permanent injunction; award of general damages for trespass; and costs of the suit. - 20 The applicant filed Written Statement of Defence (WSD). She was initially represented by Attorneys from the Attorney General's Chambers. The applicant denies the allegations and contends that the suit was filed against a wrong party. She avers that a warehouse/ milling plant was constructed on the suit land, not by the applicant, but by officials from the - 25 Ministry of Local Government under a CAIIP Project. She avers that the respondent has no right in the suit land as the same belongs to a former cooperative society (not named in the WSD). In that regard, the applicant

- 5 contends that the community agreed through a Project Management Committee that the suit land be used to construct Agro- Processing Maize Plant. She avers she would adduce evidence to prove that she is not a trespasser on the "community land". The applicant denies the allegations of destruction because, in her view, the respondent lacks lawful claim to - 10 the suit land. She contends she is not responsible for any acts or omissions of the 'project implementers' and thus prays for dismissal of the suit with costs.

The trial court framed four issues for determination namely, *who is the* 15 *rightful owner of the suit land? Whether the defendant is a trespasser? Whether the defendant is liable for the action of the company (M/s Kakain Engineering Ltd)?* And, *what remedies are available to the parties?*

The respondent (as plaintiff) testified on 24 September, 2018 and called 20 two more witnesses who testified on 05 November, 2018. She closed her case. The suit was fixed for defence for 10 December, 2018. The hearing did not take off because her Attorney was sick. The case was adjourned for 30 January, 2019. The defence did not open and no reason was given. The matter next came up on 16 April, 2019. The applicant (as defendant) 25 and counsel were absent although the plaintiff and counsel attended court. The case was adjourned to 02 July, 2019. Court did not sit. The

case again came up on 15 October, 2019 during which Ms. Amolo Shamim

- 5 addressed court. Learned counsel stated that she had received instructions to defend the applicant/defendant. The suit was adjourned to 04 February, 2020. The defendant and counsel did not appear. The suit was further adjourned to 28 April, 2020. Court did not sit for a long period (apparently due to COVID 19 national lock-down) and the matter next - 10 came up on 25 May, 2021 during which Ms. Amolo made oral application to add a cooperative society as defendant to the main suit. The application was resisted. The matter was fixed for ruling for 18 June, 2021. It was not ready. Ruling was ultimately delivered on 14 September, 2021. - 15 In the present revision complaint, the applicant contends that the trial Magistrate unfairly and with injustice dismissed the application on the ground that the society is defunct. Ms. Amolo reproduces paragraph 4 of the WSD where it is averred that the suit land was and is still property of a former cooperative society. She argues that a community agreed through - 20 Project Management Committee that signed a voluntary Consent Land Form giving away the suit land for construction of an Agro- Processing Maize plant. Learned Counsel submitted that the trial court unfairly and unjustly exercised jurisdiction to decline to add a cooperative society yet it is pleaded that the society owns the suit land. She also contended that the - 25 court exercised its jurisdiction with a lot of injustice by ruling that the cooperative society is defunct, in the absence of evidence, thereby occasioning a miscarriage of justice.

It is further averred in the letter that the trial Magistrate acted with a lot of injustice when he dismissed the entire application that was crucial to enable court effectively and completely adjudicate upon and settle all questions involved in determination of the land ownership question.

- 10 Learned counsel contended that the trial court acted in the exercise of its jurisdiction illegally when it proceeded against a non-existent body- Oyam District Local Government which can neither sue nor be sued. Counsel relies on section 83 of the Civil Procedure Act (CPA), and prays that the application is allowed. She invited me to revise and set aside the ruling - 15 and the orders of the learned Magistrate. She prays that this court orders a cooperative society to be added as defendant to the land claim. Counsel also prays for costs of this application and that costs of the trial court is borne by the respondent. - 20 At the hearing, Ms. Amolo made brief oral address. Mr. Otim Innocent, learned counsel for the respondent, also addressed court briefly. The respondent was in attendance but the applicant was absent.

Mr. Otim raised a point of law contending that his client was not served 25 with a copy of the application (the letter). He prayed for dismissal under Order 5 rule 1 (3) of the Civil Procedure Rules S. I 71-1 (CPR), with costs.

5 He submitted that a copy of the letter should have been served on his client within 21 days from the date it was filed.

In reply, Ms. Amolo submitted that since revision was commenced by letter, the provision of O.5 rule 1 is not applicable. While submitting, Ms.

10 Amolo glanced at her learned friend's case file and loudly wondered why learned counsel was alleging non-service yet a duplicate copy of the letter is on file. She urged court to dismiss the preliminary objection.

Both counsel proceeded to make merits arguments. Asked whether the 15 Applicant had adduced a copy of any registration documents of the cooperative society in the trial court, Ms. Amolo conceded it was not adduced. She also conceded the applicant does not have a copy of registration documents. Counsel, however, insisted that the cooperative society was a necessary party and impleading it would enable the trial 20 court effectually and completely determine the land ownership question.

On his part, Mr. Otim submitted that during the proceedings in the court below, the applicant did not adduce evidence of existence of the intended defendant. Learned counsel submitted that the trial court correctly 25 exercised discretion in disallowing the application. He submitted that there was no illegality or material irregularity in the trial court's exercise of jurisdiction. Learned counsel prayed for dismissal of the application with

5 costs. He prayed that this court transmits the case file to the trial court for further management.

## **Resolution**

Having perused the letter, and the record, and having listened to 10 submissions, three issues arise for resolution, namely, whether the letter seeking revision was not served on the respondent, and if so, what is the effect of non-service? Whether the case is proper for revision? And what remedies are available to the parties?

- 15 I shall resolve the first issue which encompasses the preliminary point of law. I begin from the premise that there is no prescribed procedure for commencing revision in this court. In **Gulu Municipal Council Vs. Nyeko Gabriel & others, [1997] 1 KALR 9** this court recognized lack of prescribed procedure for seeking revision. There, court was moved by a 20 letter which court found to be appropriate. This view is emboldened by the decision in **Law Development Centre Vs. Edward Mugalu (1990-1991) 1KALR 103**. I am also aware that in other instances, court has been moved by motion on notice under Order 52 of the Civil Procedure Rules, S. I 71-1. Bashaija J expressed a similar view in **Colline Kasule Vs. Fina** - 25 **Bank (U) Ltd & Andrew Oryada, Civil Revision No.05 of 2015** noting that, it is acceptable in revision that an aggrieved party may write to the High Court Registrar drawing his/her attention to the irregularity of a

- 5 subordinate court and request that the matter be placed before a Judge. In court's opinion, the rationale for flexibility in the procedure for revision is rooted in section 83 of the CPA which is concerned purely with jurisdiction of a Magistrate Court. Thus jurisdiction being fundamental and going to the substratum of any subject matter and competence of - 10 court to try a matter, procedural formality for raising revision matters under s. 83 takes a back seat and thus of secondary importance.

Revisionary power is only exercisable by the High Court. Court may call for the record of any case which has been determined under the CPA by a

15 Magistrate Court and may revise it and make such order as it thinks fit.

The meaning of revision is found in Oxford English Dictionary which was referenced by the then East African Court of Appeal in **J Hoareau Vs. R [1962] 1 E. A 809**. Thus revision is the action of revising or looking over 20 again especially a critical or careful examination or perusal with a view to correcting or improving (something). In **Mabalangaya Vs. Sanga [2005] 1 EA 236 (CAT)**, the Tanzanian Court stated that revision entails examination by the High Court of the record of proceedings of the Magistrates Court for the purposes of the High Court satisfying itself as to 25 the correctness, legality and the regularity thereof. - 5 The purpose of examination of the record of the subordinate Court is, therefore, to correct the conclusions of that Court, if necessary. Revision, therefore, is an exercise of discretion which must be done judiciously. Discretion is the faculty of deciding or determining in accordance with circumstances and what seems just, fair, right, equitable, and reasonable - 10 in those circumstances. It involves latitude of individual choice according to the particular circumstances. Discretion differs from a case where the decision follows *ex debitio justitiae* where facts are known (that is, by reason of an obligation of justice/ where court has no discretion to refuse/or where an applicant has a remedy as of right) See: **Yahaya** - 15 **Kariisa Vs. the Attorney General and another, Civil Appeal No. 7 1994 (SCU) digested in [1997] HCB 29; Jenkins Vs. Bushby (1189) 11 Ch. 484; National Enterprises Corporation Vs. Mukisa Foods Ltd, Civil Appeal No. 42 of 1997.** - 20 From the wording of section 83 of the CPA, a court may, suo motu, call for the record of the Magistrate Court for the purposes of considering whether or not to revise it. In revision, court gives a hearing to all parties but must also consider any hardship that might be suffered by any person by the exercise of its power. Giving a hearing accords with the fundamental right - 25 to be heard as enshrined in article 28(1) of the Constitution of Uganda, 1995 and entrenched in article 44 ( c ) thereof. This Court must, therefore, notify both parties about a scheduled revision hearing. Thus where

5 revision is commenced by letter, a copy must be served on the party to the proceedings.

In the instant case, court fixed the application and notified the parties. The letter drawn by Hallmark Advocates where Ms. Amolo practices law,

- 10 shows at the foot thereof that, a copy was to be served on the respondent (plaintiff). There is no affidavit of service indicating whether it was served and if so, how. As noted, Ms. Amolo claimed during the hearing that she saw a duplicate copy of the letter with Mr. Otim. Mr. Otim did not refute this claim. I paid rapt attention to the conduct of both counsel. Mr. Otim - 15 was not surprised by Ms. Amolo's glance at his file and on-the-spur of the moment disclosure. I believe learned counsel. This should ease my resolution of the objection. I find that service was effected on the respondent although it is not clear as to when and how it was done since no affidavit of service was sworn and filed. This goes to the procedure. I - 20 think in the circumstances of this case, given that a letter in revision is not summons, and since there is no strict procedure regarding it, I see no prejudice to the respondent regarding how she got a copy of the letter. I would thus treat the issue of service, in the circumstances, as a technicality curable by article 126 (2) (e) of the Constitution of Uganda.

That apart, for the avoidance of doubt, and for completeness, I think I should express myself on the import of 0.5 r.1 which Mr. Otim argued. As

- 5 I have stated, the objection regarding non-service of a letter in revision cannot be treated in the same way summons are treated under Order 5 rule 1 (3) of the CPR. There is no dubiety that under Order 5 rule 1 (3) CPR, a suit can be dismissed without notice where summons is issued under rule 1 of O.5 but not served within 21 days, and where no - 10 application for enlargement of time is sought, or where the application to enlarge time is dismissed. The provision of O.5 r.1 (3) CPR was stated by the Supreme Court in **Bitamisi Namudu Vs. Rwabuganda Godfrey, Civil Appeal No. 16 of 2014** to be mandatory. The apex court was categorical that the provision does not give court discretion to decide whether or not - 15 to dismiss a suit. In my opinion, O.5 rule 1 was not designed to apply to the process by which revision is commenced. To my mind, O.5 rule 1 applies only to suits where summons have been issued for service on a party to litigation. I am aware that this court extended the mandatory application of O.5 rule 1(3) CPR to a counterclaim where new persons are - 20 impleaded under O.8 rules 8 and 9 as defendants and summons on the counterclaim issued but not served on the new defendants to the counterclaim. See: **Western Uganda Cotton Ltd Vs. Dr. George Asaba & 3 others, Civil Suit No. 353 of 2009** (Hellen Obura J, as she then was). - 25 In the instant case, the revision proceedings did not call for a response and indeed none was lodged. A reply would not in any case have been in a manner expected of a defendant who is served with summons. Thus unlike

- 5 suits on plaint, revision matters are capable of being determined interparty and on merit without the opposite party filing anything. This is because in revision, court considers the record of the magistrate's court and the arguments by the parties or their counsel. As it peruses the record of the magistrate's court, court's primary interest is on how the magistrate - 10 court exercised its jurisdiction, within the context of section 83 of the CPA. Revision is thus quite unique from other suits as in the former, court exercises supervisory discretionary jurisdiction. I would thus dare say that had revision been commenced by Motion under O.52 of the CPR, still O.5 rule 1 (3) CPR, still would not have applied. This is because a Motion in - 15 revision is not required to be served within 21 days unlike summons under O.5 rule 1. Furthermore, unlike summons which commands that a defence be filed within 15 days or 30 days in case of the Attorney General (under the regulations regarding proceedings against Government), a Motion may be fixed for hearing at short notice whose effect would be to cut down on 20 a longer period for service and reply, which is not possible in a suit on plaint. In some instances, however, a Motion may be fixed in the distant future depending on the business of court. Before it is fixed and sealed by court, the motion would not be ripe for service. That is why Motion issued under O.52 is left to be served within a reasonable time upon fixing, so as - 25 to accord the respondent sufficient time to respond before the hearing. This also explains why under O.52 r. 4 court may dismiss the Motion or grant adjournment where service is not sufficient. Court's power is thus

- 5 discretionary. This is not the situation that obtains under O.5 rule 1 (3), which is mandatory. I should add that, Motion in revision is not an interlocutory application in the strict sense. Thus Motion in revision cannot by any stretch of imagination come within the category of interlocutory application envisaged under O.12 r.3 which deals with all - 10 remaining interlocutory applications filed within 21 days after completion of the alternative dispute resolution (ADR) or where there was no ADR, applications filed within 15 days on completion of the scheduling conference. Revision Motion does not thus arise from any main suit pending before the High Court and cannot, therefore, fall in the category - 15 of interlocutory applications before the High Court. As before the High Court, an order in revision finally disposes of the question of exercise of jurisdiction by a magistrate. See: **Black's Law Dictionary, 9th Ed., p. 1206-07**; **Salaman Vs. Warner & Others [1891] 1 Q. B 734, at 735** (Lord Esher MR); **Bozon Vs. Altringham Urban District Council [1903] 1 KB** 20 **547** (Alverstone CJ); **Bank of Uganda Vs. Banco Arabe Espanol [1999] 2 E. A 45** (Mulenga JSC).

In light of the foregoing exposition, the preliminary objection is dismissed.

25 Turning to the merits, this court may exercise revisionary power in any of the three circumstances, namely; if it appears that the magistrate's court has exercised a jurisdiction not vested in it in law; if the magistrate's court

- 5 failed to exercise a jurisdiction so vested; or if the magistrate court acted in the exercise of its jurisdiction illegally or with material irregularity or injustice. Courts have held that section 83 CPA applies to jurisdiction alone. This was the view of Mustafa J. in **Matemba Vs. Yamulinga [1968] EA 643** (HCT), a decision of the High Court of Tanzania. Court interpreted - 10 section 79 of the Tanzanian Civil Procedure Code Act. That section was identical to our section 83 of the CPA, the only difference being that s.79 expressly barred revision where a right of appeal exists. Mustafa J noted that in revision, the High Court has only to see whether the requirements of the law have been duly and properly obeyed by the court whose order is - 15 the subject of revision. The learned Judge quoted with approval the opinion of the Privy Council (PC) in **Balakrishna v. Vasudeva (1917), 44 I. A. 261** where their Lordships were interpreting s. 115 of the Indian Civil Procedure Code which was in *pari materia* with s.79 of the Tanzanian Code. The PC said:

**"It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved."**

On the particular matter before court and as regards the alleged illegality or material irregularity, Mustafa J., quoted **Amir Hassan Khan v. Sheo**

5 **Baksh Singh (1885), 11 Cal. 6; 11 I. A.** 237 – where, again, the Privy Council said:

**"It is settled that where a court has jurisdiction to determine a question and it determines that question, it cannot be said that it has**

10 **acted illegally or with material irregularity because it has come to an erroneous decision on a question of fact or even of law."**

The gravamen of the instant complaint is that the learned Magistrate acted illegally and irregularly in refusing to add Wilobo Pe Ongeo cooperative

15 society to the land claim. The court held that the cooperative society is defunct. Court relied on paragraph 4 of the WSD to reach its conclusion.

Paragraph 4 of the WSD is worded:

- 20 *"The Defendant shall aver at the hearing that the plaintiff has whatsoever no any right to claim ownership and or compensation of the said land in contention from the defendant because the said suit land was and still is a former cooperative society land where the community through the project management committee signed a voluntary consent land form that the land* - 25 *at Amwa trading centre (including the suit land) be used for the construction of agro processing maize plant."* (Underlining is mine.)

5 Apart from the in-artful drafting, I think the draftsperson did not diminish the allegation that the suit land was owned by an unnamed cooperative society which no-longer exist. By her WSD, the defendant at the same time suggests that the suit land continues to be owned by a defunct cooperative society.

Although it was not adverted to by the trial court, I wish to state that a valid cooperative society can only be formed in accordance with the provisions of the Cooperative Societies Act Cap 107. The Act came into force on 15 November, 1991 (Cap. 107 is the revised edition as at 31st 15 December 2023). In the case at hand, it is, however, not clear in which year Wi Lobo Pe Ongeo cooperative society was legally formed, if at all. Its members are not named. Section 32 of the Act states that a society on registration shall become a body corporate by the name under which it is

20 to hold moveable and immovable property of any description, and power to enter into contracts, and to institute and defend suits and other legal proceedings, and to do all things for the purpose of its constitution.

registered, with perpetual succession and a common seal, and with power

Under section 13, evidence of registration of a cooperative society is by a 25 certificate of registration unless cancelled and signed by the Registrar or Deputy Registrar of Cooperative Societies. Under section 13 (2), the Registrar may issue a duplicate certificate of registration where he/she is

- 5 satisfied that the society's original certificate of registration is lost or destroyed. Section 20 provides for the leadership and management of the society. Leadership and Management is through a Board. A board shall, therefore, be the governing body and shall direct the affairs of the society but subject to its bye-laws and any direction from the general meeting. The - 10 Board has, among others, powers to institute and defend suits and other legal proceedings in the name of or against the cooperative society. See section 20 (2) (b) of the Cooperative Societies Act.

In the instant case, Wilobo Pe Ongeo cooperative society was sought to be 15 added as a co-defendant under O. 1 rule 10 (2) CPR. The name for the first time surfaced during the oral address of counsel in the court below. The WSD did not state it. This points to a bigger challenge as regards the society's alleged interest in the suit land.

20 Resting on the law, it was argued that impleading the society would enable the trial court to effectually and finally determine the land ownership question. In my view, whereas O.1 rule 10 (2) of the CPR allows either party to a suit, or court, suo motu, to add a defendant to a suit, the rule can only be invoked once a condition precedent is met. O.1 rule 10 (2) is 25 concerned with three instances for its invocation. First, where the name of a person is improperly joined as plaintiff or defendant to a proceeding and is sought to be struck out. This is not the case instant. Second, where the

 5 name of a person who ought to have been joined as plaintiff or defendant is sought to be added, and third, where the name of the person whose presence as plaintiff or defendant before court may be necessary to be added in order to enable the court effectually and completely adjudicate upon and settle all questions involved in the suit.

The Applicant's case appears to rest on the third scenario. Her main claim is that the cooperative society owns the suit land. Whereas the rule allows a party to add another to a suit, I would think where it is alleged that the interest of a third party is at stake, evidence ought to be adduced to 15 support it. In the present case, there is nothing to show that the cooperative society is a registered society. The applicant failed to produce basic documents in the trial court. A Board of the society ought to sanction its intended participation in court proceedings, but none exists. I thus find the opinion in **Gray Vs. Lewis [1873] 8 Ch App 1035** which was cited 20 with approval by Kitumba JSC in **Kabale Housing Estates Tenants Association Vs. Kabale Municipal Local Council, Civil Application No. 15 of 2013 [2013] UGSC 19** quite apt. There, the learned Justice stated that where a wrong has been done to a company and an action is brought to restrain its continuance, or to recover the company's property or 25 damages or compensation due to it, the company is the true plaintiff. It was noted, however, that, the appropriate agency to start an action on behalf of the company is the board of directors to whom the power is

5 delegated to manage the affairs of the company. See: **United Assurance Co. Ltd Vs. A. G [1995] KALR 308.**

Regarding joinder, Courts have held that in order to join a person to a suit on the basis that his or her presence is necessary, it should be shown 10 either that the orders sought would legally affect the interests of that

- person so he/she should be joined to avoid multiplicity of proceedings. In the instant matter, the applicant adduced no proof of existence of the society, and its prima facie interest in the suit land. - 15 The other consideration, which is a stand-alone, is that, the defendant could not effectually set up a desired defence unless the intended person is joined or an order made that would bind that other person. See: **Departed Asians Property Custodian Board Vs. Jaffer Brothers Ltd [1991] E. A 55** (Mulenga, JSC). Again, here, the applicant failed to satisfy 20 the trial court that she would not be in a position to defend herself against the allegations if the cooperative society is not impleaded as co-defendant. I note that the allegations in the plaint is more about destruction of property that stood on the suit land. It has been alleged that where the property stood, was not given out to anyone by the original owner (the late 25 father-in-law of the plaintiff). So, although framed as an issue, the ownership question appears rather incidental to the real claim which is

the alleged property destruction and consequent illegal land alienation. My

5 expression does not, however, in any way inhibit the trial court from approaching the suit as it sees fit given that it is better placed especially since the defence case is yet to be heard.

That said, I note that the alleged society was not shown to be a necessary

- 10 party or a party who ought to be added. I think the opinion of the learned editors of **Mulla on the Code of Civil Procedure Vol. 2, at p. 1488** on the subject is quite instructive. According to the learned editors, a necessary party is one without whom no effective order can be made. To be a necessary party, there must be a right to some relief against him/her - 15 in respect of the subject matter of the suit. A party who ought to have been joined, that is, a proper party, on the other hand, is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. A proper party should, however, have a defined, subsisting, direct and - 20 substantive interest in the issues arising in the litigation. In **Walimu Cooperative Savings and Credit Union Vs. Okumu Benjamin & another Misc. Civil Application No.101 of 2022** this court noted that in real practice, however, the line between a party who ought to be joined, and a necessary person, may be blurred on the given facts.

In light of the foregoing analysis, I am of the firm view that the trial court rightly rejected the application. I agree that the society is indeed defunct.


5 And quite contrary to learned counsel's arguments, I think the onus was on the applicant, and not the respondent, to prove the existence of the society as required by section 101 and 103 of the Evidence Act Cap 8. See: **Godfrey Ssebanakitta Vs. Fuelex (U) Ltd, Civil Appeal No. 04 of 2016 (SCU)**.

In my view, I also think that before any requisites for impleading the society could be considered, the trial court had to be satisfied about its existence. I think proving the legal existence was necessary to curb the risk of adding a non- existent person to a suit. It would, in my view, be 15 Pyrrhic victory to add a person only for court to strike it out soon thereafter. It is settled law that a non-existent person or entity cannot sue or be sued. See: **Osman Kassim Ramathan Vs. Century Bottling Company Limited, Civil Appeal No. 10 of 2020 (SCU)** (Chibita JSC); **Paul Nyamarere Vs. UEB (In Liquidation) [2008] HCB 126; The** 20 **Trustees of Rubaga Miracle Centre Vs. Mulangira Ssimbwa a.ka. Afidra Milton & Another, HCMA No.576 of 2006 and M. A No. 655 of 2005**

**Board of Trustees Miracle Centre Vs. Pastor Robert Kayanja (Consolidated)** (R. K Kasule, Ag. J, as he then was)**; Idea Uganda Ltd Vs. Okello Stephen & 2 Others**, **HCMA No. 316 of 2021** (Ssekaana J).

In **The Fort Hall Bakery Supply Co v Frederick Muigai Wangoe [1959] 1 EA 474 (SCK)**, Templeton J held that a non-existent person cannot sue,

5 and once the court is made aware that the plaintiff is non-existent, and, therefore, incapable of maintaining the action, it cannot allow the action to proceed.

Applying these principles to the instant case, I find that it was not enough 10 to argue that the cooperative society was a necessary party. Its existence had to be shown since it was contested. I also note that the Attorneys in the Attorney General's Chambers were categorical in the WSD that the cooperative society does not exist. In the circumstances, the applicant ought to understand that parties are bound by their pleadings. This was

15 stated by Oder JSC of the good memory in **Uganda Breweries Ltd Vs. Uganda Railways Corporation, SCCA No. 6 of 2001**. The applicant could not, therefore, purport to depart from, and deny what was drafted by the Attorneys from the AG's chambers, in the absence of an amendment. See: **Bullen and Leake and Jacobs Precedents on Pleadings, 12th Ed., p.3**;

20 **Ms. Fangmin Vs. Bellex Tours & Travel Ltd, Civil Appeal No. 06 of 2013 (consolidated with No. 1/ 2014).**

In closing, I therefore, hold that the learned magistrate exercised his jurisdiction properly.

The other complaint is that the trial court allowed the suit to proceed against a non-existent defendant. This argument is novel as it was not

- 5 raised in the trial court. During her address here, Ms. Amolo did not expound on the matter. However, as I understood her letter, it seems the applicant is saying that she is not capable of being sued in her current name. In my view, the answer lies in section 6 of the Local Governments Act Cap 138. It is provided that every local government shall be a body - 10 corporate with perpetual succession and a common seal, and may sue or be sued in its corporate name and may, subject to the provisions of the Constitution, enjoy or suffer anything that may be done, enjoyed, or suffered by a body corporate. Under section 3 (1), the system of local government shall be based on the district as a unit under which there shall 15 be lower local governments and administrative units. Under sub-section - (2) of section 3, the local government in a district rural area shall be the district council; and the sub-county councils.

It seems the applicant's concern is with the omission of the word "council" 20 from its name. I have noted that the respondent lodged the plaint by herself without the assistance of counsel, thus omitting the word "council" from the Defendant's name. To my mind, this is a curable misnomer with the necessary leave of the trial court, in a summary manner under O. 1 rule 10 (2) and rule 13 of the CPR. It is a minor omission and a matter of form 25 not affecting the substance of the identity of the defendant. It is not a matter where the defendant has no legal existence at all. See: **Reliable African Insurance Agencies Vs. National Insurance Corporation [1979**

- 5 **HCB 59**; **Aristoc Booklex Ltd Vs. Vienna Academy Ltd, HC Misc. Application No.503 of 2000**. In **Attorney General Vs. Sabric Building and Decorating Contractors Ltd, MA. No. 299 of 2012**, court held that where a wrong description of a party is a misnomer, it is not fatal especially if the substance of identities of the parties to the proceedings is not - 10 affected. See also **Nakabuye Agnes Vs. Martin Strokes & Another, Misc. Cause No. 38 of 2021** (Henry Isabirye Kawesa J). In my view, where there is misnomer, O.1 rule 10 (2) and r. 13 can be considered alongside O. 6 rule 19 CPR which permits oral motion in simple amendments as properly guided by Sir Audley McKisack C. J in **DD Bawa Limited v GS Didar Singh** - 15 **[1961] 1 EA 282 (HCU)**. Where it is, however, required by court, a formal Motion may be lodged. Be that as it may, since by its nature, this particular point ought to have been raised in the court below, but was not, it was wrong for the applicant to raise it in revision application. Accordingly, the complaint collapses.

The last complaint is similar to the first. The trial court is alleged to have exercised its jurisdiction illegally, with material irregularity and injustice in refusing the application yet the applicant pleaded that the suit land was, and still belongs to a cooperative society.

I have considered the complaint, I should state that my observations on the first complaint apply with equal force here. The pleading say the society


- 5 is defunct and no evidence was adduced to prove its existence. I, therefore, hold that there was no illegal exercise of discretion by the learned magistrate. He had the requisite jurisdiction to allow or reject the application to add a party. On the facts, the court exercised its discretion judiciously and there was no material irregularity in the proceedings. I find - 10 that no material injustice was occasioned to the applicant.

In conclusion, all the complaints fail and the application is dismissed with costs. To avoid further delays in the trial of the land claim given its checkered history, and to curb costs spiral, I exercise my powers under

- 15 section 27 (1) of the CPA and order that shs. 5,000,000 be paid as costs of this application. This will avoid the costly need for lodging bill of costs and taxation in this court. It will also enable the case file to be taken back to the trial court to progress the hearing for expeditious disposal of the land suit. In **Nabanja Vs. Nabukalu (Taxation Appeal No. 4 of 2018) [2018]** - 20 **UG HCFD 27** court held that costs of and incidental to all suits are in the discretion of the court or judge with full power to determine by whom and out of what property and to what extent those costs are to be paid.

Regarding costs in the trial court, I affirm that it shall be in the cause as 25 ordered by the learned Magistrate.

Given that the head suit is a backlog case, to forestall further delays, I order the Deputy Registrar to transmit the case file to the trial court immediately. I further direct that the present Magistrate Grade 1 of Oyam Magistrates Court shall fix the suit for defence hearing within 30 days from

10 the date of receiving the file. I also direct that the defence be heard and the whole suit is disposed of within 120 days on receipt of the case file. The trial court may, in its discretion, however, enlarge time as permitted by section 97 of the CPA, for reasons to be recorded.

I so order.

Delivered, dated and signed in Court this 16 January, 2025.

**George Okello** 20 **JUDGE**

## **10:55 am 16/01/2025**

## 25 **Attendance**

Mr. Otim Innocent, counsel for the Respondent Respondent in court Counsel for the Applicant (Ms. Amolo Shamim) absent 30 No representative of the Applicant in court Mr. Opio Esau, court clerk

**George Okello** 35 **JUDGE**

5