THE REPUBLIC OF UGANDA
IN THE HIGH COURT AT KAMPALA
HCT - 00 - CC - MC - 324 - 2011
(A rising from Miscellaneous Application No.458 of 2011)
(Arising from Civil Suit No. 273 of 2011)
M/S SIMON TENDO KABENGE ADVOCATES ::::::::::::::::::::::::::::: APPLICANTS
1. EDITOR IN CHIEF, RED PEPPER PUBLICATIONS]
2. RED PEPPER PUBLICATIONS LIMITED]
3. ALEX BUKUMUNHE]
4. DIANA NABUUSO]
5. M/S KASIRYE BYARUHANGA & COMPANY ADVOCATES] ::::::: RESPONDENTS
6. MINERAL ACCESS SYSTEMS UGANDA LIMITED]
7. GLENDON F ARCHER]
8. DAVID K. MUKAMA]
9. ABBAS SENYONJO]
10. ATTORNEY GENERAL]
BEFORE: THE HON. JUSTICE GEOFFREY KIRYABWIRE
R U L I N G:
This ruling arises from a preliminary point of law as regards capacity to sue raised on behalf of all the respondents by Mr. Mutabingwa learned counsel for the first, second and third respondents (hereinafter referred to as counsel for the respondents). The objection is that the applicant M/s Simon Tendo Kabenge Advocates is a law firm that is a sole proprietorship owned by one person and therefore should have brought this application in the name of its owner Mr Simon Tendo Kabenge and not in the name of the firm. It is the case for the respondents that Mr Simon Tendo Kabenge’s firm is a sole proprietorship and so it cannot sue in its firm name within the meaning of Order 30 of the Civil Procedure Rules. Mr. A. Kibaya counsel for the 4th and 5th respondents in relation to the same issue added that the respondents wanted the applicant in this matter to be Mr. Simon Tendo Kabenge.
In reply Dr. Akampumuza counsel for the applicant submitted that under the Interpretation Act if a party can be sued then it too can sue. He further relied on the case of The Commissioner General Uganda Revenue Authority V Meera Investments Ltd Civil Appeal 747 of 2002 where it was held that since the Commissioner General of the Authority could sue for taxes then Commissioner General too could be sued. Counsel for the applicant further submitted that under the Constitution all should be equal.
The objection to my mind therefore is whether a sole proprietor of a firm can sue in the firm’s name?
Order 30 of the civil procedure rules provides for suits by or against firms and persons carrying on business in names other than their own. Rule 1 of the said provides as follows;
“…1. Suing of partners in name of firm
Any two or more persons claiming or being liable as partners and carrying on business in Uganda may sue or be sued in the name of the firm, if any, of which those persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in the firm, to be furnished and verified in such manner as the court may direct. (Emphasis mine)…”
Rule 10 of the same Order further provides;
“…10. Suits against person carrying on business in name other than his or her own;
Any person carrying on business in a name or style other than his or her own name may be sued in that name or style as if it were a firm name….”
In relation to these arguments Halsbury’s Laws of England (4th Edition; Volume 37; paragraph 268) refers to Order 81 Rule 9 civil procedure rules of England which mirrors Uganda’s own Order 30 Rule 10 of our civil procedure rules; and states that
“…An individual carrying on business within the Jurisdiction in a name or style other than his own name may be sued in that name as if it were the name of the firm…”
The text then under footnote 3 goes on to state that
“..If he sues, however, he should do so in his own name, describing himself as ‘trading as……’”
This also is the position taken in the Supreme Court of Kenya decision in Lakhman Ramji Vs Shivji Tessa & Sons (1965) EA; where Rudd J at page 128, held thus:
“The legal position is quite clear, A sole proprietor of a business can not sue in the name of that business if that name is not his own. He should not even sue in his own name trading in the business name. He should sue in his own name simpliciter and then in the body of the plaint he can say that he carries on business in the name of whatever his business name happens to be and is the sole proprietor of that business….”
Guided by the above authorities my interpretation of the above rules is that under rule 1 of Order 30 of the Civil Procedure Rules it is only two or more persons trading as partners whomay sue or be sued in the name of the firm. This means that a sole proprietor of a firm can not sue in the name of the firm. However if such a proprietor decides to sues then he/she must do so in his/her own names and then in the body of the pleading indicate the name of the business and the fact that he/she carries on business as a sole proprietor . That notwithstanding other persons under rule 10 may sue a sole proprietor in his/her business name but not the reverse. To that extent counsel for the respondents are correct. With the greatest of respect I was unable to find an alternative interpretation under the Interpretation Act (cap 3) as submitted by counsel for the applicant. Indeed I find that even the case of Meera Investments Ltd (supra) is not applicable because that case sought to interpret the provisions of the Income Tax Act and in particular Sections 100, 101 and 104 (2) thereof which is not the case here.
I will now proceed to determine whether the application should fail on this ground.
In the Supreme Court of Kenya decision in Lakhman Ramji Vs Shivji Tessa & Sons (Supra) Rudd J heldthat
“…A suit filed by the sole proprietor of the firm in the business names simpliciter is defective but is not bad in law (Held iv)…”
At page 128, the Judge specifically held thus:
“…That is technically the correct procedure but nowadays rectification is allowed so easily that the matter is merely a technicality.
… Even where proceedings are brought in a business name simpliciter, the matter will be rectified and the suit will not be allowed to fail on that ground.…
…..The whole matter is one of relatively minor importance since it can easily be rectified at any stage. Nevertheless I am not to be taken as suggesting that it does not matter in such a case whether the plaintiff sues in his own name or not. He must sue in his own name and if he does not, this should be rectified. If the plaintiff does not take the necessary steps to obtain the rectification the defence can take the point and make an application to force him to do so and may even get costs but normally the plaintiff can obtain rectification by formal verbal application at some convenient time after giving prior notice of his intention to the other side. If prejudice results it can be compensated in costs but very often no prejudice results and then I would usually allow the rectification without costs."
I agree with that finding and the good sense that is apparent in the above Kenyan decision has found a very fundamental expression in Article 126 (2) (e) of the Constitution of the Republic of Uganda which enjoins courts of law in Uganda to administer substantive justice and not to pay undue regard to technicalities.
In any event Order 1 Rule 10 of the civil procedure rules permits the removal and addition of parties where a suit has been filed in the wrong name:
Sub-rule 2 provides that:
“The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added.”
This rule empowers Court to add or strike out a party improperly joined.
I find that the above defect is curable under order 1 Rule 10(2) of the civil procedure rules and this consistent with Article 126 (2)(e) of the constitution of Uganda. I accordingly invoke Section 98 of the civil procedure Act which empowers this Court to make such orders as may be necessary for the ends of justice and order the applicant to amend the Summons to reflect the name of sole proprietor of the law firm trading as the law firm. This may be done on the face of the summons itself and the accompanying affidavits without refilling. Since this challenge also exists in relation to the head suit and other applications made under it I also an auxiliary order in order to avoid a multiplicity of similar orders that the same rectification and amendments be made mutatis mutandis in the relation to the head suit and all applications made there under.
Subject to the above orders the preliminary objection stands over ruled.
As to costs I did not see prejudice and further guided by the Lakhman Ramji case (Supra) I allow rectification without costs.
Ruling read and signed in Court in the presence of;
A. Kibaya for 4th and 5th Respondents
Rutisya for 6th, 7th and 8th Respondents
Rose Emeru – Court Clerk