- Flynote
- CL|Non-Existing Defendant|Substitution of Party|Statutory Interpretation
- Case summary
- Two applications where lodged by both parties. The first application sought the rejection of a lodged case on the ground that the defendant in the suit, described as ‘the board,’ was a non-existing person, with no capacity to sue or be sued. Immediately thereafter, the applicant lodged the second application where he sought leave to amend the initial suit by adding a Pastor Kayanja as a party to the suit, in addition to the board. In its judgement this court held that the board did not exist in law. The application to add Kayanja was held to be an attempt to substitute a non-existing defendant and thus in reality there was no valid plaint in the suit. The reason being that a suit in the names of a wrong plaintiff or defendant cannot be cured by amendment (as the applicant attempted to). Hence, the first application succeeded, and the second application was dismissed.
THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NUMBER 576 OF 2006
THE TRUSTEES OF RUBAGA MIRACLE CENTRE ::: APPLICANT
VERSUS
MULANGIRA SSIMBWA ::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
AND
MISCELLANEOUS APPLICATION NUMBER 655 OF 2005
Mulangira Ssimbwa a.k.a Afidra Milton ::::::::::::::::: APPLICANT
VERSUS
THE BOARD OF TRUSTEES,
MIRACLE CENTRE }
PASTOR ROBERT KAYANJA }::::::::::::::::::: RESPONDENTS
(both Applications arising from HCCS No. 768 of 2004)
BEFORE: AG. JUDGE REMMY K. KASULE
RULING
This Ruling is in respect of two applications, namely Miscellaneous Application Number 576 of 2005 and Miscellaneous Application Number 655 of 2005.
Application Number 516 of 2005 is brought under Order 7 Rules 11 and 19 of Civil Procedure Rules and seeks the rejection of the Plaint in HCCS No. 768 of 2004 on the ground that the Defendant in the suit, described as THE BOARD OF TRUSTEES, RUBAGA MIRACLE CENTRE CATHEDRAL, is a non existing person, with no capacity to sue or be sued.
In Application Number 655 of 2005, the applicant, Mulangira Ssimbwa a.k.a Afidra Milton, seeks leave to amend the Plaint in HCCS No. 768 of 2004, by adding Pastor Robert Kayanja as a party to the suit, in addition to the Board of Trustees, Miracle Centre Cathedral.
H.C.C.S No. 768 of 2004 was instituted by Mulangira Ssimbwa a.k.a Afidra Milton as Plaintiff, against The Board of Trustees, Rubaga Miracle Centre Cathedral, as Defendant; claiming Ug. Shs.12,200,000/= (Twelve million two hundred thousand) general damages and interest thereon being monies due and owing to the Plaintiff from the Defendant.
The claim is stated to be pursuant to an oral construction agreement executed in 1999 whereby Plaintiff was contracted to complete the construction of Rubaga Miracle Centre Cathedral.
Learned Counsel, Arthur Ssempebwa, for applicant, submitted in respect of Miscellaneous Application Number 576 of 2005 that the Plaint in H.C.C.S No. 768 of 2004 has to be rejected under Order 7 Rules 11 and 19 of the Civil Procedure Rules as the defendant does not exist as a real or legal person capable of suing or being sued. This had been expressly pleaded in paragraph 2 of the Written Statement of Defence:-
“2. The Defendant files this defence in protest, as it is not aware of the identity or existence of the Defendant but was none the less served with Court Process.”
With such averment as part of the Written Statement of defence, the burden of proof shifted to the Plaintiff to establish the proper capacity of the Defendant to sue and to be sued. Section 101 (2) of the Evidence Act also puts the burden of proof of a fact on the one, who asserts that fact. Thus Plaintiff has to establish the fact of the correct identity of the Plaintiff. This burden has not been discharged by the Plaintiff in the suit.
He further submitted that since the suit is brought against a non existing Defendant, the Plaint has to be rejected. The same cannot be amended.
Learned Counsel Sebastian Angeret, representing the opposite side, insisted that the Plaint should be amended under Order 1 Rule 10(2) of the Civil Procedure Rules by adding on Pastor Robert Kayanja as the second Defendant. This was to enable Court to determine and adjudicate effectually on all the issues before Court. Pastor Robert Kayanja had negotiated the construction contract with the Plaintiff and therefore it was only fitting that he is added as second Defendant.
The law is now settled. A suit in the names of a wrong Plaintiff or Defendant cannot be cured by amendment: THE FORT HALL BAKERY SUPPLY CO. VS. FREDERICK MUIGAI WANGOE : [1959] EA 474.
and
BENJAMIN SAJJABI T/A NAMATABA VS. TIMBER MANUFACTURERS LIMITED [1978] HCB 202.
While Order 1 Rule 10 (2) empowers Court to add or strike out a party improperly joined; and Order 1 Rule 10 (4) allows an amendment of a Plaint where the Defendant is added or substituted, such amendments of the Plaint can only be made if they are minor matters of form, not affecting the substance of the identity of the parties to the suit: See Reliable African Insurance Agencies
Vs National Insurance Corporation [1979] HCB 59.
Where the amendment by way of substitution of a party purports to replace a party that has no legal existence, the Plaint must be rejected as it is no Plaint at all: See High Court Miscellaneous Application Number 503 of 2000. Aristoc Booklex Limited Vs. Vienna Academy Limited, unreported.
In the instant application, the Defendant described as The Board of Trustees Miracle Centre Cathedral, does not exist in law. The attempt to add Pastor Robert Kayanja, is really an attempt to substitute a non existing Defendant. The law does not allow that as in reality there is no valid plaint in the suit.
Accordingly Miscellaneous Application Number 576 of 2005, is allowed. The Plaint is rejected in H.C.C.S No. 768 of 2004. Miscellaneous Application No. 655 of 2005 stands dismissed.
Since the decision of the Court is that there is no defendant to the suit, no order will be made as to costs. A non existing party cannot be paid costs. See: The Fort Hall Bakery and the Benjamin Ssajjabi cases (supra).
Remmy K. Kasule
Ag. Judge
5th May 2006
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