Wakilii

Abex Tour Safaris Company Ltd v Sabiiti Anor (MISCELLANEOUS CIVIL APPLICATION NO 28 OF 2020)

High Court · [2020] UGHCCD 151 · 2020 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out plaint for failure to disclose a cause of action and for being brought against a non-existent party
Decision
Plaint struck out for being brought against a non-existent party; application allowed; no order as to costs

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A suit brought against a non-existent party is incompetent and must be struck out. The error cannot be cured by amendment where the party sued does not legally exist. A non-existent company sued in error cannot be awarded costs where the actual entity served failed to responsibly clarify the misdescription in its written statement of defence and instead sought to deny liability through a backdoor application.

Outcome

Plaint struck out for being brought against a non-existent party; application allowed; no order as to costs

Facts

On 16 January 2020 at Kaigo Trading Centre along Kagadi-Hoima road, Motor Vehicle UAH 022X allegedly belonging to Abex Tour & Safaris Company Limited and driven by Issa Kabugo collided with Motor Vehicle UBF 854Z, a Toyota Wish, resulting in the death of Tinkibyenda, a passenger. The police accident report identified the owner of UAH 022X as Abex Safaris and Tours Ltd. The respondents filed Civil Suit No. 14 of 2020 against Abex Tour & Safaris Company Limited claiming damages for negligence. The applicant then filed this application seeking to strike out the plaint on the ground that Abex Tour & Safaris Company Limited is not a registered company under the Companies Act and does not legally exist. The respondents had mistakenly served court process on Luutu Kiiza, Managing Director of Abex Safaris and Tours (U) Ltd, believing him to be the Managing Director of the company they intended to sue.

Issues

  1. Whether a suit brought against a non-existent company is competent and can be sustained.
  2. Whether the plaint disclosed a cause of action against the applicant company.
  3. Whether the applicant, being a non-existent entity, is entitled to costs of the application and the suit.

Orders

  • Civil Suit No. 0014 of 2020 struck out for being incompetent.
  • Application allowed.
  • Each party to meet their own costs in the suit and application.

Rules and key headnotes

Civil Procedure — Parties to Suit — Non-Existent Party — Competence of Suit
A suit brought in the name of a non-existent party is incompetent and cannot create liability or obligations. Such a suit must be struck out as a nullity.
Company Law — Unincorporated Entity — Legal Capacity to Sue and Be Sued
A company that is not incorporated under the Companies Act is a non-existent person in law and cannot sue or be sued. Even if a decree were obtained against such an entity, it could not be enforced.
Civil Procedure — Amendment of Pleadings — Misdescription of Party — Limits of Amendment
Where a suit is brought against a non-existent party, amendment cannot cure the defect. Amendment is only permissible for minor errors such as spelling mistakes in a party's name, not where the party sued does not exist at law.
Civil Procedure — Costs — Discretion to Award or Refuse Costs — Good Cause
Under section 27(2) of the Civil Procedure Act, a successful party is entitled to costs unless there is good cause to deny them. Good cause exists where the successful party failed to act responsibly by not clarifying a misdescription in the pleadings and instead sought to exploit the error to deny liability.

Legislation cited (5)

Cases cited (3)

  • Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa (Miscellaneous Application No. 576 of 2006)
  • Attorney General v Sabric Building & Decorating Contractors Ltd (Miscellaneous Application No. 299 of 2012)
  • Professor Ephraim Kwabu Kamuntu v Attorney General (Land Civil Suit No. 38 of 2016)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Abex Tour Safaris Company Ltd v Sabiiti Anor (MISCELLANEOUS CIVIL APPLICATION NO 28 OF 2020) 2020 UGHCCD 151 (3 July 2020)
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.