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Prince Wasajja v Nabuwule and Others (Civil Appeal No. 370 of 2021)

Court of Appeal · [2022] UGCA 275 · 2022 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a ruling of the High Court (Land Division) declining to strike out the plaint and ordering the main suit to proceed after striking out the power of attorney used to institute it
Decision
Appeal allowed; lower court ruling set aside; plaint in Civil Suit No. 36 of 2014 rejected and suit struck out

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Holding

The Court of Appeal held that where a power of attorney used to institute a suit is struck out as having no legal effect, the suit founded upon it is rendered a nullity and cannot be allowed to proceed; a void act is incurably bad. Because the respondents' lease had expired they lacked locus to issue powers of attorney under section 146(1) of the Registration of Titles Act, so the attorney had no locus standi to sue. Having struck out the power of attorney, the trial Judge erred in allowing the suit to continue, leaving the plaint unsupported contrary to O.7 r.14(1). The plaint was rejected and the suit struck out, with costs awarded to the appellant as the successful party.

Facts

The respondents, residents of the United Kingdom, instituted Civil Suit No. 36 of 2014 through their father and attorney, Dr. Muhammad Buwule Kasasa, against the appellant and the Kabaka of Buganda, seeking recovery of suit land. They challenged the failure to renew their lease which expired on 16 March 1998 and contended the land had instead been illegally granted to the appellant. The powers of attorney authorising Dr. Kasasa to sue were issued in 2005, after the lease had expired and when the respondents were no longer registered proprietors. The appellant filed Miscellaneous Application No. 1432 of 2018 challenging the validity of the power of attorney and seeking rejection of the plaint. The trial Judge found the power of attorney had no legal effect under section 146(1) of the Registration of Titles Act and struck it off the record, but nevertheless allowed the main suit to proceed, holding the suit had been instituted by the respondents. The appellant appealed.

Issues

  1. Whether the trial Judge erred by allowing Civil Suit No. 36 of 2014 to proceed after finding that the power of attorney used to institute it was defective and had no legal effect.
  2. Whether Civil Suit No. 36 of 2014 was instituted by the respondents or by their purported attorney.
  3. Whether the trial Judge erred in holding that the application partially succeeded and did not cause rejection of the plaint under O.7 r.11 of the Civil Procedure Rules.
  4. Whether the trial Judge erred in not awarding costs to the appellant as the successful party.

Orders

  • The appeal is allowed.
  • The ruling of the lower court in Miscellaneous Application No. 1432 of 2018 is set aside.
  • The plaint in Civil Suit No. 36 of 2014 is rejected and the suit is accordingly struck out.
  • The appellant is awarded costs in this Court and the court below.

Key headnotes

Power of Attorney — Effect of Nullity on Suit Founded Upon It
Where a power of attorney used to institute a suit is struck out as void and of no legal effect, the suit founded upon it is rendered a nullity; being incurably bad, it cannot be allowed to proceed and must collapse with the power of attorney.
Registration of Titles — Capacity to Grant Power of Attorney — Expired Lease
Under section 146(1) of the Registration of Titles Act, only a registered proprietor may grant a power of attorney to deal with land; once a lease expires the lessee ceases to be a registered proprietor and lacks the capacity to issue a valid power of attorney over the land.
Pleadings — Rejection of Plaint — Suit Upon Document Not Supported
Where a plaintiff sues upon a document but it is not validly before the court, the plaint is unsupported contrary to O.7 r.14(1) of the Civil Procedure Rules and is liable to be rejected under O.7 r.11(d) as barred by law.
Locus Standi — Attorney Suing on Void Power of Attorney
An attorney can only institute a suit on behalf of a donor while the power of attorney is a valid instrument; where the power is void the attorney has no locus standi to sue and the plaint cannot be sustained.
Costs — Costs Follow the Event — Discretion to Deny
Under section 27 of the Civil Procedure Act, costs follow the event and a successful party is entitled to costs unless the court for good reason orders otherwise; the manner of raising preliminary objections is not a good reason to deny a successful party its costs.

Legislation cited (11)

  • Registration of Titles Act Cap 230 s.146(1)
  • Civil Procedure Rules O.7 r.11(a)
  • Civil Procedure Rules O.7 r.11(d)
  • Civil Procedure Rules O.7 r.14(1)
  • Civil Procedure Rules O.7 r.4
  • Civil Procedure Rules O.3 r.1
  • Civil Procedure Rules O.3 r.2
  • Civil Procedure Act Cap 71 s.27
  • Registration of Documents Act Cap 81
  • Evidence Act Cap 6 s.84
  • Rules of the Court of Appeal r.30(1)

Cases cited (10)

  • Muhammad Kasasa v Jaspha Bugonga Strasi Bwogi and Anor (Civil Application No. 23 of 2014)
  • The Fort Hall Bakery Supply Co. V Fredrick Muigai Wangoe (1959) EA 474
  • John Sebataana v Abanenamar Yorokam and Anor (Civil Suit No. 99 of 2005)
  • Biginzika Enterprises Ltd and 2 Ors v Biginzika Partners Limited and Anor (Civil Appeal No. 78 of 2017)
  • Fredrick J.K Zaabwe v Orient Bank Ltd and 5 Others (Civil Appeal No. 4 of 2006)
  • National Enterprises Corporation v Mukisa Foods Ltd (Civil Appeal No. 42 of 1997)
  • Fr. Narsensio Begumisa and 3 Others v Eric Kibebaga (Civil Appeal No. 17 of 2002)
  • Nuwe Amanya Mushega v Charles Odere (Civil Suit No. 102 of 2012)
  • Paddy Musoke v John Agard and 2 Others (Civil Appeal No. 36 of 2012)
  • Benjamin Leonard MacFoy V United Africa Co. Limited (1961) 3 ALLER 1169
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.