Wakilii

Amin Virani v Byaruhanga and Another (Miscellaneous Application 1143 of 2023)

High Court · [2023] UGHCLD 146 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for substitution of deceased party arising from civil suit for trespass and demolition
Decision
Application granted. Deceased 2nd Defendant substituted with her legal representatives. Leave to amend plaint granted.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court held that the misdescription of the deceased 2nd Defendant's name as 'Eleanor Byaruhanga' instead of 'Eleanor Byarugaba' was a mere misnomer and not fatal to the application. Applying the test from J B Kohli v Bachulal Popatial, a reasonable person reading the documents would entertain no doubt as to the person intended. The court granted substitution of the deceased with her legal representatives and permitted amendment of the plaint, upholding substantive justice over technical defects.

Outcome

Application granted. Deceased 2nd Defendant substituted with her legal representatives. Leave to amend plaint granted.

Facts

The Applicant, Amin Virani, instituted a suit for trespass and demolition (Civil Suit No. 2826 of 2016) against three defendants including Eleanor Byarugaba as 2nd Defendant. Eleanor Byarugaba subsequently died. Letters of probate for her estate were granted by the High Court on 18 March 2021 to five legal representatives. The Applicant filed a miscellaneous application to substitute the deceased 2nd Defendant with her legal representatives. However, throughout the application and supporting affidavits, the Applicant mistakenly referred to the deceased as 'Eleanor Byaruhanga' instead of 'Eleanor Byarugaba'. The 3rd Defendant/2nd Respondent opposed the application, arguing that 'Eleanor Byaruhanga' was never a defendant in the suit and that the application was brought against a non-existent party. The Applicant responded that the misdescription was an innocent drafting error and misnomer.

Issues

  1. Whether the description by the Applicant of the 2nd Defendant as 'Eleanor Byaruhanga' rather than 'Eleanor Byarugaba' was a mere misnomer.
  2. Whether the deceased 2nd Defendant should be substituted with her legal representatives.

Orders

  • The name of the deceased 2nd Defendant Eleanor Byarugaba is substituted with her legal representatives: Augustine Ishasha Bwankosya, Florence Bwankosya Lwanga, Kelvin Origye Byarugaba, Emily Nyakwezi Byarugaba and Peter Ainebyoona, who become parties to the head suit.
  • Leave granted to the Applicant/Plaintiff to amend the head suit to reflect the substitution within ten (10) days from the date of this ruling.
  • The name 'Eleanor Byaruhanga' improperly joined as a party to the present application is hereby removed.
  • Costs of this application shall abide the outcome of the head suit.

Rules and key headnotes

Civil Procedure — Parties — Misnomer — Test for Determining Whether Misdescription Constitutes Misnomer
The test for determining whether a misdescription of a party's name constitutes a mere misnomer is whether a reasonable person reading all the documents in the proceedings and having regard to all the circumstances would entertain no doubt that the person with the correct name was the party intended to be referred to. If there would be no doubt, it is a case of misnomer and not a case where proceedings are against a non-existent person.
Civil Procedure — Parties — Misnomer — Effect and Remedy
A mere mistake in the description of a party's name is not fatal to proceedings. The correct name can be deemed to have been referred to rather than the erroneous name. Courts are enjoined not to pay undue regard to technicalities but rather to adjudicate cases on the basis of substantive justice.
Civil Procedure — Parties — Joinder of Deceased Person — Improper but Not Fatal
It is improper to join a deceased person as a party to proceedings, as a deceased person is non-existent and cannot be sued. However, an improper joinder of a deceased person with other defendants or respondents is not fatal to the action. Such improperly joined deceased person can be removed by order of court under Order 1 Rule 10(1) and (2) of the Civil Procedure Rules.
Civil Procedure — Parties — Substitution — Death of Party — Legal Representatives
Where a party to proceedings dies, the court has power under Order 24 Rule 4 of the Civil Procedure Rules to substitute the deceased with his or her legal representatives holding letters of probate. The court may also grant leave to amend the plaint to reflect such substitution in order to completely and finally determine the real questions in controversy and avoid multiplicity of proceedings.

Legislation cited (10)

Cases cited (2)

  • J B Kohli and Others v Bachulal Popatial [1964] 1 EA 219
  • Attorney General v Sabric Building and Decorating Contractors Ltd (HCMA No. 299 of 2012)

Full judgment

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

Amin_Virani_v_Byaruhanga_and_Another_(Miscellaneous_Application_1143_of_2023)_[2023]_UGHCLD_146_(14_June_2023)
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.