Court name
HC: Family Division (Uganda)
Judgment date
21 January 2021

Kiddu (Suing as next friend to her son MTS) v Board of Governors, St. Mary College Kisubi (Civil Suit-2018/466) [2021] UGHCFD 1 (21 January 2021);

Cite this case
[2021] UGHCFD 1
Coram
Nambayo, J

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

[CIVIL DIVISION]

CIVIL SUIT NO. 466 OF 2018

KIDDU PHOEBE

(SUING AS NEXT FRIEND TO HER SON MTS)::::::::::::::::::::::::::::::::::::::::::::::::PLAINTIFF

VERSUS

THE BOARD OF GOVERNORS

OF ST. MARY'S COLLEGE KISUBI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: DEFENDANTS

BEFORE: HON. JUSTICE ESTA NAMBAYO

RULING

Kiddu Phoebe (herein after referred to as the plaintiff) filed this suit as next friend to her son, MTS, against the Board of Governors of St Mary's College Kisubi (the defendant), seeking for: -

  1. A declaration that the dismissal of her son MTS from School was illegal, irregular and of no consequential at all
  2. Special damages of 1,000,000/- [one million shillings] spent on the treatment of MTS
  3. Special damages of 1,670, 200/- [One million six hundred and seventy thousand, two hundred shillings] being the spent and un refunded School fees for term 2, 2018
  4. Special damages of 1,900,000/-[one million nine hundred thousand shillings only] spent on purchase of school requirements for term 2 2018
  5. Special damages of 3,000,000/-[three million shillings only] spent on joining the new school after dismissal from St. Mary's College Kisubi
  6. General Damages for defamation of MTS
  7. General damages for pain and suffering caused to MTS because of the dismissal
  8. General damages for pain and suffering caused to the plaintiff because of the dismissal and the way it was handled
  9. Punitive damages for the defendant's immunity, insolence and disregard for the law
  10. Exemplary damages
  11. Costs of the suit
  12. Any other/further remedies as Court may deem fit.

The Plaintiff's cause of action is that her son, MTS was admitted in S.1 at St Mary's College Kisubi in 2018. In the course of the term, the plaintiff's son, MTS was burnt with a hot iron. The matter was reported to the administration but no action was taken. The plaintiff's son was later on accused of sodomising another student and assaulted by other students at night and forced to write a statement admitting that he participated in sodomising the student. When this information got to the school administration, the Plaintiff's son was summarily sent away from school without any investigations in the matter and without notifying the Ministry of Education. Information about the dismissal of the plaintiff's son for the alleged sodomy found its way to the parents' WhatsApp forum and other forums where it attracted a lot of negative comments. All the plaintiff's attempts to have the dismissal of her son reversed yielded no results.

The Plaintiff did not recover money that she had spent to fix her son in the defendant's school and incurred more expenses in fixing her son in another school and feels aggrieved by the conduct of the defendant, hence this suit.

Learned Counsel Ssenkezi represents the Plaintiff, while Counsel John Mike Musisi is for the defendant

When the matter came up for hearing, Counsel for the defendant raised a preliminary objection on grounds that the plaint contravenes Order 32 of the CPR.

Counsel submitted that under 0.32 CPR, the suit must be instituted in the name of the minor through the next friend. He explained that the plaintiff should be a minor. Counsel further submitted that there must be a written authority to the Advocate for purposes of pursuing the suit. The authority must be presented together with the plaint. He explained that the suit as is, is not by a minor; it is by an adult who is also representing a minor who has a cause of action. That the law as quoted applies to suits by minors, this is not a suit by a minor, it is brought by an adult, Kiddu Phoebe and there is no written authority of the next friend which makes the suit incompetent and should be dismissed with costs.

In reply, Counsel for the plaintiff submitted that the pleadings show that the plaintiff brings this suit on her behalf and on behalf of the minor but principally, the minor. Counsel referred to paragraph 4 (v) & (w) of the plaint and explained that the plaintiff also has a cause of action. That the plaintiff brought the suit on her behalf and on behalf of the named minor which can only be established after trial. Counsel explained that the relationship between the two is not disputed anywhere by the defendant. That the rules relied on by Counsel for the defendant are only hand maidens of Justice and should not be used to deny justice summarily or otherwise. Counsel invited this court to invoke the provisions of Article 126(2) e and S.98 CPA and prayed that the preliminary objection raised by Counsel for the defendant be overruled so that hearing of the matter proceeds on merit.

Analysis

Order 32 rule 1 (1) of the Civil Procedure Rules provides that 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.

Under 0.32 rule 1 (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 the record.

The meaning of the above provisions of the law is that the suit must be brought to court by the minor. This means the minor must be the plaintiff and the Plaint must disclose this. The plaint should then show that the minor is suing through a next of friend whose relationship with the minor should also be disclosed. It is not the other way round that the next friend files the suit indicating that he or she is the plaintiff and then discloses who the minor is. This would be wrong because such a plaint would indicate the next friend as the plaintiff and not the minor.

The 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. In this case, the heading of the suit is clear that Kiddu Phoebe is suing as next of friend to her son. In paragraph 3 of the plaint all the prayers and the declarations sought are in favour of the minor who is not party to the suit.

0.32 rulel (2) of the CPR provides that where the plaint is filed by an Advocate, the authority of the next friend to the Advocate must be filed on court record together with the plaint. The provision of the law in this rule is coached in mandatory terms. This means that where Counsel does not file the authority, the suit must fail. In this case, Counsel filed the plaint showing that Kiddu Phoebe, the mother of the minor is the plaintiff. This is wrong. Counsel has not also filed the authority of the next friend to file this suit, together with the plaint. This contravenes the provisions of the law.

Counsel for the Plaintiff relied on Article 126(2) (e) of the Constitution and prayed that this court be pleased to overrule the preliminary objection and proceed to hear the case on its merits. He explained that Court will only be able to appreciate that the plaintiff filed this suit on her behalf and on behalf of the named minor only after trial.

In the case of Kasirye, Byaruhanga and Co Advocates -v- Uganda Development Bank SCCA No. 2 of 1997, Counsel for the appellant sought in aid Article 126(2)(e) of the constitution contending that no injustice had been occasioned to the respondent. The Supreme Court in upholding the preliminary objection and after quoting Article 126(2)(e) of the constitution and underlining the words "subject to the law", stated that: -

"We have underlined the words subject to the law. This means that clause (2) is no license for ignoring existing law...a litigant who relies on the provisions of Article 126(2)(e) must satisfy the court that in the circumstances of a particular case before the court, it was not desirable to pay undue regard to a relevant technicality. Article 126 (2)(e) is not a magic wand in the hands of defaulting litigants".

In this case, Counsel has not shown that it was not desirable to pay undue regard to the technicality in this case. I find merit in the preliminary objection raised by counsel for the defendant which I do hereby uphold and dismiss this case.

Costs

Counsel for the defendant prayed for costs. The general rule is that Costs follow the event and a successful party should not be deprived of costs except for good cause. {See Butagira -v- Deborah Namukasa (1992 - 1993) HCB at page 98, 101).

I find no reason to deny the defendant costs in this case. The plaintiff will therefore pay costs of this suit to the defendant.

I so order.

Esta Nambayo

JUDGE

21/01/2021.