THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION. NO.885 OF 2014
BEFORE HON. JUSTICE HENRY PETER ADONYO
The fact of the matter as seen from the plaintiff’s/applicant’s affidavit in support of the plaint in the main suit at paragraph 2 is that one Richard J Stanley concluded a loan agreement with the defendant/respondent whereby the respondent/ defendant was advanced US$ 24,000. A copy of the said loan agreement is annexed to the plaint in the main suit as Annexture “A” to the said affidavit in support.
The respondent is said to have failed to repay the loan thus the claim in the main suit whereupon the Applicant/Plaintiff filed High Court Civil Suit No. 313 of 2013 under Summary Procedure for recovery of a liquidated amount against the Respondent. Upon completion of pleadings, the matter was adjourned to the 26th day of September, 2014 for prosecution having been first referred for mediation.
On the date when the matter was to be heard neither the applicant nor his lawyer was present in court. The court had no reasons on record for such want of appearance and thus went on to dismiss the main suit was dismissed for want of prosecution. This application was filed thereafter for the reinstatement of the earlier dismissed suit and for its costs to be provided.
The respondent herein in reply to this Application raises the issue of locus standi of the applicant in which he contends that the applicant/ plaintiff was not the rightful party to sue him since the applicant had instituted the main suit on the basis of a powers of attorney where he was “the donee of the powers of attorney herein attached from which he derives his powers of attorney to institute the suit…” issued by one Richard J. Stanley to claim the sum of US$ 24,000 as against himself. In this regards, the respondent’s /defendant’s contention is that the plaintiff in the main suit lacked the capacity to institute the main suit and even the current application as he was a total stranger to the loan transaction stated therein in the main suit and thus has no cause of action against the respondent/defendant. The respondent/ defendant therefore contends that since the Applicant/ plaintiff was a stranger to the claim in the main suit, his action of making his claim via the main suit made the main suit to be grossly misconceived, bad in law, incompetent, frivolous and vexatious and a blatant abuse of the court process.
The respondent further contends that he had intended to raise a preliminary objection in regards to applicant/ plaintiff lacking the necessary locus standi in the main suit but before that before he could do so the main suit was dismissed by court due to the applicant’s failure to prosecute the same on the date when the matter was adjourned for hearing. To further cement his point, the respondent states that the main suit was grossly misconceived, bad in law, incompetence, frivolous and vexations and a blatant abuse of the court process and thus prays that it be dismissed with costs. This issue, it must be recalled, was not previously raised in the belated defence of the respondent to the main suit.
From the submissions of the parties, the following issues have been drawn to enable the resolution of this application.
Whether the applicant/plaintiff has the requisite locus standi to institute the current application
Whether the dismissal order in respect of CS. No. 313 of 2013 should be set aside and the matter be re-instated and heard on own merits.
What remedies are open to the respondent/defendant?
On the first issue of whether the applicant/plaintiff has the capacity to institute the current application/suit in his own names as argued by the respondent/ defendant which is to the effect that the applicant/plaintiff lacks the capacity to institute the instant application and the main suit in his own name since he is an agent of a disclosed principal in whose name he should have instituted the application and the main suit, the respondent/ defendant relied on the principle of locus classical as held in the case of M/S Ayigihugu & Co. Advocates v Munyankindi Muteeri [1990-1992] KALR 180 which he states had similar facts in that the plaintiff in that case, a firm of advocates was a donee of special powers of attorney which empowered it, inter alia, to commence and continue proceedings on behalf of a donor while exercising the powers of attorney took an action to court against the defendant in its names. Tsekooko J (as he then was) took note of that position and held that since the plaintiff was a donee of powers of Attorney he did not have a cause of action and therefore he could not institute a suit in his own name. He was an agent and he could only sue in the name of the principal.
Furthermore, the respondent pointed out that this same situation was recognised by the Court of Appeal in the case of Boutique Shazim Ltd v Norattam Bhatia & Another Court of Appeal Civil Appeal No. 36/97 at page 5 where it confirmed the holding by Tsekooko, J (as he then was) that “the attorney had no capacity to sue or to be sued...” .
From these two decisions, the respondent / defendant urged this Honourable Court to note only follow those decisions but to similarly hold herein that the Applicant/ Plaintiff has no capacity to bring the instant matter or even the main suit since the applicant/ plaintiff was merely an attorney of one Richard J. Stanley and thus would have no capacity to sue or to be sued.
In doing so, the respondent/defendant made urged this court to distinction of the holding in the case of Bizimana David & 2 others v Kamari Johnson Ca No. 003 of 2008 which it states the applicant had relied upon as in that case the plaintiff instituted the suit in his names and not in the names of her mother who was the holder of power of attorney with John Wilson Kwesiga, J observing therein that since the claimant and his mother were beneficiaries of the estate of the late Gakwafu the question of whether any of them had letters of administration or power of attorney one from the other did not arise as each of them had an interest in the estate of and thus could sue in own individual capacity.
That when this holding is related to the instant matter, it would be found that Mr. Kateregga Paul had no interest in it and was not even privy to the contract which was ipso facto signed by Mr. Richard J Stanley and thus cannot sue on it but should have instituted proper suit in the names of the requisite party as was to be read from the intention of the law.
In my view and on the basis of the basis of the doctrine of precedent and stare decisis it is provident to take cognizance of the decision in the case of Bizimana (supra). However, my consideration of the respondent’s argument in whole is that it lacks depth in that it attempts to draw this court to merely consider technical basis of his argument without taking into account what is at stake in the dispute between the parties before me.
Firstly, it is true that High Court Civil Suit No. 313 of 2013 was filed for recovery of United States Dollars Twenty Four Thousand Only (US$ 24,000) from the respondent and indeed the respondent filed an application seeking leave to appear and defend it and the instant applicant never objected to his application and so the whole matter went through the process of preparation for settlement both by way of mediation and adjudication and nothing put in the works disavowing the whole process as is now being raised seeking to have the instant applicant thrown out of these proceedings as is now being sought. Indeed this matter proceeded through mediation process and was variously mentioned in this court until the 2nd day of August, 2014 when the applicant and his lawyer only failed to appear in court yet on that date the respondent/defendant was properly represented in court and never raised the issue of lack of capacity as is now being indicated in the instant matter. It was indeed the court which on its own motion proceeded to dismiss the main suit for want of prosecution and nothing else.
The argument for the grant of this application is that on the date when the main suit was dismissed the applicant’s lawyer was indisposed and medical documents have been duly attached to this Application’s affidavit in support as Annexture B in proof of this assertion.
The other matter which I note is that as parties contended with the process of mediation, the applicant’s attorney later mistakenly continued to attend to the mediator with the mistaken belief that there was no need to attend to the trial court as he believed that attending to the mediator was the right fora for handling the dispute since he had gone to that fora on several occasions.
I note that the Applicant in the instant matter made this application on the basis of Order 9 Rule 23 of the Civil Procedure Rules which allows for suits dismissed under Order 9 Rule 22 of the Civil Procedure Rules to be reinstated by court so long as sufficient cause for non appearance is provided. In the affidavit in support of this application reasons were given by the applicant that the major cause for his counsel’s non appearance was that on the day when the main suit was dismissed was ill health coupled with the applicant’s attorney mistaken visit ing the mediation room be to reasons furnished for court to consider sufficient in considering the reinstatement of the main suit.
The applicant also pointed out that the court ought to consider the fact that when a person was in possession of powers of attorney such a person may appear before court on the basis of the power given in such a document as long as that document were attached to the pleadings and tended to explain his status and thus clearly making a distinction between the holding by Justice Tsekooko (as he then was ) in the case M/s Ayigihugu & Co. Advocates v Munyankindi (1988-1190) and the instant one. More ever, the Applicant argued, the learned judge in the at case specifically used the word “ought” in his holding which word according to the Oxford English Dictionary meant to carry out a desirable situation but not that it was not mandatory to do it that way. Thus likewise in the present scenario, the applicant argued that it is not fatal for an attorney’s name to appear instead of that of the donor so long as the document’s elaborating his appearance were attached prescribing his specific roles and powers in as far as executing those specific duties were concerned and that the powers of attorney in the instant matter clearly explained how the attorney derived his powers with even paragraph 1 of the plaint in the main suit elaborating it further. The Applicant , therefore , submitted that were that to be the case then the court should find that the respondent was merely dwelling on form but not substance of the matter to warrant the dismissal of a suit which had not been heard inter parties as was held by His Lordship J.W. Kwesiga in the case of Bizimana David & 2 others v Kamani Johnson Civil Appeal No. 52 of 2008 when considering one of the issues that was before him for determination of whether the suit was wrong in law for being bought in the names of the alleged attorney rather than the mother who was allegedly the donor of the powers of Attorney that his lordship went on to hold inter alia that in his view the error was not fatal to the plaintiff’s cause of action.
The Applicant further pointed out that Order 1 rule 10 of the Civil Procedure Rules in its provisions allowed the substitution of parties at any stage of the proceedings so long as the court was satisfied that the suit naming of parties was through bona fide mistake of identity of parties and that the substitution was necessary for the determination of the real issue in dispute. That this was in light of the fact that the High Court had unlimited jurisdiction and ought to administer justice without undue emphasis on technicalities or procedural matters but the substantive justice as is envisaged by Section 33 of the Judicature Act (Cap 13).
I am convinced by the later argument of the applicant in that having carefully considered the pleadings in this regard it is clear to me that the applicant raises fundamental issues of law and fact which ought to be consider in deciding whether to reinstate or not the main suit. This is that a contract did exist , the performance of which there is a duty which the defendant ought to perform. The reasons given in opposition to this application, in my view, are not sufficient for a court of justice to shut its doors to litigation as seeing there are indeed issues of contention in regards to the rights and obligations of parties under a contract which in my view would best be concluded if adjudication process is concluded and judgment given this as even the pleadings in this matter show that the respondent even does not really dispute fact that the applicant has powers of attorney in respect of matters to his knowledge but only poses arguments to the effect that the applicant was not the right party to sue him.
Indeed when issue in contest is viewed totally it is pertinent to me that the contested powers of attorney when read do not explicitly provide that its donee may sue or be sued in his own names. However, my reading of Order 1 Rule 10 of the Civil Procedure Rules is to the effect that the law therein empowers a court to order that the appropriate parties be substituted if it is in the interest of the justice of the matter to do so. In the instant matter, I am of the opinion that the pleadings in this matter show that there is a real dispute which must be settled on merits rather than it be scuttled and left unheard. Indeed there are sufficient reasons presented here to show why this court should re-instate HCCS. No. 313 of 2013 and major one being that on the date when the main suit was set to be heard, learned counsel representing the applicant was unable to attend to court and this reason was proved by the production of medical evidence to that effect as showing the reason for indisposition of learned counsel on the date in question and since the applicant has the constitutional right to be represented by counsel of his choice and could not be represented on the date in question for the reason stated earlier, I am of the opinion that it would be unfair to punish the applicant on for the failure of his counsel to attend court on the date.
Furthermore, the reasons of non performance of contractual obligations are pending unresolved and it involves substantial amounts of money. More so, it is clear to me that the reason now being raised in opposition to this application are an afterthought having not been raised in the first place either through pleadings or even preliminary objections. In any event though, it is clear to me that the provisions of the rules of procedure of this court empowers this court upon being satisfied by reasons given by an applicant as to why a suit previously dismissed should be reinstated to not only allow such reinstatement but even to ensure that the proper parties are enjoined in the suit in the interest of the justice of the case.
In the premises, I find that there are clearly issues proposed as to the dispute now before this court and those issues require determination so that the real dispute between the parties is adjudicated upon and concluded. In the premises, I would find that by the reasons given before me in this application, there has been sufficient cause as to why this application should be allowed.
Thus I would allow this application and make the following orders;
I order the reinstatement of HCCS No. 330 of 2013 to be tried between the appropriate parties.
I order under the provisions of Order 1 Rule 10 of the Civil Procedure Rules that the Applicant’s names be substituted with those of Mr. Richard R. Stanley, the donor of the powers of attorney herein and such substitution be done within Ten (10) days from the date of this ruling.
I also order that the costs of this application be in the cause.
These orders are made accordingly at the High Court Commercial Division at Kampala.
Henry Peter Adonyo
6th February, 2015.