Wagabaza (suing through next kin wagabaza God ) v Olira and Others (Civil Suit 146 of 2017) [2023] UGHC 307 (1 June 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT JINJA **CIVIL SUIT NO. 146 OF 2017**

## **WAGABAZA VALANTIN**

(Suing through next kin WAGABAZA GOD) :::::::::::::::::::::::::: PLAINTIFF

**VERSUS**

#### **1. OLIRA CHARLES**

## 2. MUKULA HENRY C/O HARRIS AUCTIONEERS -DEFENDANTS &COURT BAILIFFS

## **BEFORE HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI**

#### RULING ON PRELIMINARY OBJECTIONS

### **Brief facts**

The Plaintiff instituted this suit against the Defendant seeking to set aside execution, a declaration for vacant possession of the suit property, a permanent injunction, general damages, specific damages, damages for trespass and punitive damages arising out of trespass and over attachment of property by the Defendants. The Plaintiff is the customary owner of land at Kigezere - Iringa village, Emeri Parish, Nkondo Sub - county in Kamuli district. The 2nd Defendant, in execution of a warrant of arrest against the Plaintiff to attach and sale unregistered land measuring approximately 50ft by 12ft, allegedly unlawfully extended the attachment to the Plaintiff's land up measuring up to 44.123 acres which was not part of the suit property and demolished the Plaintiff's property worth UGX 152, 380, $750/$ = (one hundred and fifty two million three hundred and eighty thousand seven hundred and fifty shillings)in wrongful execution of the warrant.

#### **Representation**

The Plaintiff was represented by Counsel Waisswa Ramathan of Katuntu & Co. Advocates while the Defendants were represented by Counsel Kevin Amujong of Okalang Law Chambers.

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In the Written Statement of Defence, the Defendants indicated that they would raise a preliminary objection that the Plaint is barred in law, does not disclose a cause of action against the Defendants, that the suit is frivolous and vexatious, that the suit is resjudicate and that the Plaintiff has no locus standi to file the present suit which should be struck out and / or dismissed with costs.

When the suit came up for hearing, Counsel for the Defendants raised the preliminary objections as indicated in the Written Statement of Defence. The Parties were given schedules to file written submissions as follows. The Defendants were directed to file their written submissions by 10th November 2022, the Plaintiff was to reply by 17th November 2022 and the Defendants' rejoinder would be filed by 24th November 2022. The Plaintiff, however, filed her reply on 25th November 2022 instead of the 17th November 2022 as directed by Court.

### **Submissions**

On locus standi, Counsel for the Defendant argued that this suit was filed through the next of kin of the Plaintiff, namely Wagabaza God, which arrangement is not provided for under the law. Counsel cited Order. 3 Rule 1 and 2(a) of the Civil Procedure Rules and cited the case of Musa Gawa & 6 Ors vs Hajji Mitha & Company Ltd Misc. Application No. 477 of 2016 relied on in Lena Nakalema Binaisa & 3 Ors Vs Mucunguzi Myers, HCMA No. 460/2013 for the proposition that a person purporting to have authority to act on behalf of another ought to have authority in the form of Powers of Attorney which ought to be attached to the pleadings. Counsel further relied on the case of **Kaigana Vs** Daboboubou (1986) HCB 59 for the principal that a person cannot act in representative capacity unless he or she is an Advocate or a holder of Powers of Attorney.

Counsel concluded that the present suit purports to be in the name of Wagabaza Valantin (suing through next kin Wagabaza God) as the Plaintiff without Powers of Attorney attached to the Plaint. Counsel submitted that Wagabaza God clearly has no authority to represent Wagabaza Valantin and therefore the suit is an illegality. Counsel referred to the case of Makula International Vs Cardinal **Wamala Nsubuga (1982) HCB 11** for the principal that Court cannot sanction an illegality and illegal act brought to the attention of Court overrides all questions of pleadings.

It was the Defendants' Counsel's submission that the suit cannot even be claimed to have been filed under Order 32 Rules 1& 2 of the Civil Procedure Rules for that order envisages a suit on behalf of a minor through a next friend and the next

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friend ought to sign a written authority which shall be presented together with the Plaint and that the rule provides for next friend and not next kin as applied by Plaintiff's Counsel. Counsel sought refuge under Order 7 Rule 11(d) of the Civil Procedure Rules which provides for rejection of a Plaint where the suit appears from the statement in the Plaint to be barred by any law.

Counsel for the Defendants further argued that the illegality cannot be cured given the fact that the suit was instituted during the lifetime of Wagabaza Valantin through Wagabaza God who had no authority. Therefore, the suit was dead at inception and cannot be cured by Letters of Administration.

In respect of res judicata, Counsel submitted that the subject matter in Civil Suit No. 146 of 2017(the current case) is the same subject matter that was the point of contention in Civil Suit No. 0028 of 2004 that was decreed in favour of the 1st Defendant. Therefore, the current suit is res judicata. Counsel relied on Section 7 of the Civil Procedure Act to support this position.

Lastly Counsel argued that the suit is barred against the 2nd Defendant on the principal that the 2nd Defendant, as a bailiff, enjoys immunity from civil proceedings against him arising out of acts carried out in execution of the orders of the Court. Counsel referred to Section 46 (1) and (2) of the Judicature Act and the cases of Kiiza Walusimbi & 2 Ors Vs Senyimba & 3 Ors [2013] UGHCLD 11 and Joyce Kinyankwazi Vs Hezekia K. Ndugga & Anor [1974] HCB in which cases Court upheld this position.

Counsel further submitted that any legal grievance of the Plaintiff against the 2nd Defendant would be addressed through the appropriate procedure which would be by way of filing an application to the Court that issued the execution orders to investigate the alleged excess in execution as provided for under Section $34(1)$ of the Civil Procedure Act but not by way of filing a fresh suit as is the case.

In reply, Counsel for the Plaintiff submitted that there was a typing error hence instead of *next friend*, the document shows *next kin*. Counsel contended that this is a mere technicality which can be overlooked by the Court to ensure that justice is served. Counsel submitted that Wagabaza Valantin, the father to the Plaintiff herein, was incapacitated and therefore could not attend nor follow court's hearings. Evidence of his incapacitation was to be brought during the hearing of Miscellaneous Application No. 77 of 2018 which application would seek the validation of the written authority required by law which had been inadvertently not filed with the Plaint. Counsel referred to Article 126 (2) (e) of the Constitution to persuade Court to entertain this suit.

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Counsel further submitted that before the Application for validation could be heard, the Plaintiff, Wagabaza Valantin died on 23rd March 2018 and as a result, the Application for validation was overtaken by events. The Plaintiff consequently obtained Letters of Administration for the estate of the late Wagabaza Valentin and applied to Court to amend the Plaint.

Regarding the issue of res judicata, Counsel submitted that the Plaintiff does not in any way dispute the outcome of Court proceedings but rather that which was attached in excess and was not the subject matter of the previous suit.

It was the Plaintiff's contention that the $2nd$ Defendant as a bailiff is not entitled to absolute immunity when he or she acts illegally or in excess of his powers given by a warrant of attachment. Counsel cited the case of Bifabusha Vs Turyazooka [2002] EA 330 to augment this argument. Counsel concluded that the bailiff attached property in excess of the court's warrant and is therefore liable to be a party to the suit. Counsel further submitted that since the excess execution introduces the suit land, a new subject matter arose, therefore, Section 34 of the Civil Procedure Act is not applicable. Counsel referred to the cases of **Wandera** & 2 others Vs Mugenyi & Anor (Civil Appeal No. 061 of 2009) and Francis Nansio Mocah Vs Nuwa Walakira SCCA No. 23 of 1994 which illustrated excess attachment by bailiffs and the Court held that "*in the premises, the remedy* available to the applicants would be to file a suit against the bailiff to account for the excess proceeds or undervaluation of the property or any other remedy the applicant would deem fit...."

In rejoinder, Counsel for the Defendants attacked the Plaintiff's submissions in reply on the ground that they were filed on 25th November 2022 instead of 17th November 2022 in non-compliance with the court's directions which amounts to contempt of the court orders. Counsel relied on the case of Amrit Goyal Vs Harichand Goyal & 3 Ors CACA No. 109 of 2004 for the principal that a court order given must be obeyed and a person who disobeys it is in contempt of court. Counsel prayed to Court to disregard the Plaintiff's written submissions in reply.

It was the Defendants' submission that although the Plaintiff had submitted that due to a typing error he had typed *next kin* instead of *next friend* in the Plaint, his argument remains untenable since Wagabaza God has no locus to represent Wagabaza Valantin even as a next friend. Wagabaza Valantin was not a minor and had never been adjudged a person of unsound mind for Wagabaza God to qualify as a next friend even if the Court was inclined to appreciate this argument. Counsel concluded by maintaining her position that the suit is clearly incompetent before Court and that it ought to be dismissed with costs.

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#### **Issues**

- 1. Whether the suit is incompetent before this Court. - 2. Whether the suit is res judicata. - 3. Whether Civil Suit No. 146 of 2017 is barred in law as against the 2nd Defendant.

### Determination.

#### Law

Before I resolve the issues, I must state that the Plaint was negligently drafted. It is tainted with careless mistakes. Paragraph 1 of the Plaint shows that the Plaintiff's address of service for purposes of the suit shall be C/o Firm F & Co. Advocates P. O Box 7117, Kampala. From my understanding, Firm F & Co. Advocates is a Firm name at the Law Development Centre and indeed the postal address belongs to Law Development Centre. This is a clear indication that Counsel for the Plaintiff copied and pasted from precedents used by students at the Law Development Centre which is not a good practice. Advocates are paid by their clients and should therefore dedicate adequate time to draft their client's pleadings with reasonable care in order to avoid such mistakes that cause embarrassment to the legal profession.

Before I determine the issues in this matter, I observed that the Defendants' Counsel in her submissions in rejoinder raised the issue of contempt of a court order in respect of the Plaintiff's failure to comply with the directions of court in filing her written submissions. Counsel prayed that the Plaintiff's submissions in reply should not be considered by this Honourable Court.

I discourage the practice of legal practitioners filing documents at their pleasure. When Court orders are given, they have to be adhered to by the Parties. However, in the interest of justice and given that the Defendants were not prejudiced and were able to file a Rejoinder, I will invoke the inherent powers of this Court under Section 98 of the Civil Procedure Act Cap 71 to allow the Plaintiff's submissions filed past the timelines set out in the schedule. Thus, the submissions will be considered in this Ruling. I shall now turn to the resolution of the issues.

#### Whether the suit is incompetent before Court. 1.

The term locus standi literally means a place of standing. It means a right to appear in Court and conversely to say a person has no locus standi means that he has no right to appear or be heard in a specified proceeding. (See Njau and Others Vs City Council of Nairobi [1976-1985]1 EA 397 at 407 as cited in

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## Dima Domnic Poro Vs Inyani & Anor Civil Appeal NO. 17 OF 2016 [2017] **UGHCCD 154.**

It was Counsel for the Plaintiff's submission that there was a typing error which led to the inclusion of *next kin* instead of *next friend* in the Plaint. During the hearing of this matter on 3rd November, 2022, Counsel for the Plaintiff informed Court that the Plaintiff was of unsound mind due to a terminal illness prior to his death. This leaves the Court with no doubt that the Plaint was brought under Order 32 Rules 1 and 15 of the Civil Procedure Rules S. I 71-1 which state that;

O. 32 r 1. Minor to sue by next friend.

(1) Every suit by a minor shall be instituted in his or her name by a person who in the suit shall be called the next friend of the minor.

(2) Before the name of any person shall be used in any action as next friend of any infant where the suit is instituted by an advocate, that person shall sign a written authority to the advocate for that purpose, and the authority shall be presented together with the Plaint and shall be filed on record.

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"The provisions contained in rules 1 to 14 of this order, so far as they are applicable, shall extend to persons adjudged to be of unsound mind, and to persons who though not so adjudged are found by the Court on inquiry, by reason of unsoundness of mind or mental infirmity, to be incapable of protecting their interest when suing or being sued.

In the instant case, the Plaintiff did not attach any evidence to the Plaint to show that the he is a person of unsound mind to qualify under Order 32 Rule 1 and 15 of the Civil Procedure Rules.

I entirely agree with counsel for the Defendant that under Order 32 rule 2, Wagabaza God had to attach his authority to the Plaint to sue as the next friend of Wagabaza Valantin at the time of filing. The wording of the provision of the law is mandatory and where Counsel omits to file the authority together with the Plaint, the suit inevitably fails.

Counsel for the Plaintiff sought to seek refuge under Article 126 $(2)$ (e) of the Constitution of Uganda. However, it is a settled principle of law that a litigant

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who relies on the provisions of Article 126(2) (e) of the Constitution must satisfy the Court that in the circumstances of a particular case before Court, it was not desirable to pay undue regard to the relevant technicality. Article 126(2) (e) is not a magic wand in hands of defaulting litigants. The Courts have also observed that Article 126 $(2)$ (e) is applied "subject to the law." The clause is not a licence for ignoring existing law. (See Kasirye Byaruhanga and Co. Advocates vs Uganda Development Bank SCCA No. 2 of 1997, Mulindwa George William Vs Kisubika Joseph SCCA NAO. 12 of 2014.

In this case, the Plaintiff's Counsel has not demonstrated to Court that it was not desirable to pay undue regard to the relevant technicality. Furthermore, the Civil Procedure Rules have provided that the written authority to institute a suit through a next friend should be attached to the Plaint at the time of filing. This requirement cannot be ignored.

Worth noting is that a question of parties to a suit is fundamental because it is only a proper party to a suit who will have a cause of action. (Refer to Kiddu Phoebe (Suing as next friend to her son MTS) Vs Board of Governors, St. Mary College Kisubi Civil Suit 466 of 2018).

In the circumstances, I find that the Plaintiff did not prove that he is a person of unsound mind to institute the case through a next friend. Worse still, there is no authority by the next friend to institute the suit attached to the Plaint as required by law. The suit is incompetent before this Court. I thus find merit in the 1st preliminary objection which I do hereby uphold and dismiss this suit with costs.

Since the suit has been dismissed, the rest of the issues are moot.

I so order.

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Justice Faridah Shamilah Bukirwa Ntambi Ruling delivered in open Court on 1st June 2023.