Wakilii

Aribariho v Nakayiki (Miscellaneous Application No. 56 of 2021)

High Court · [2021] UGHCCD 211 · 2021 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out plaint arising from Civil Suit No. 77 of 2020
Decision
Plaint struck out with costs; plaintiff may file fresh suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A plaint signed by a person purporting to act as attorney for the plaintiff without a valid power of attorney attached at the time of filing is fatally defective and must be struck out. The power of attorney must exist and be valid at the time of filing the suit, not subsequently registered. The court cannot establish the legitimacy of a suit where the person instituting it had no authority to do so at the time of filing.

Outcome

Plaint struck out with costs; plaintiff may file fresh suit

Facts

The plaintiff Nakayiki Gilaida filed Civil Suit No. 77 of 2020 through Terzol Jobey, who signed the plaint as 'Attorney for the Plaintiff'. At the time of filing on 7 December 2020, no power of attorney was attached. The plaint itself described the plaintiff as acting in her own capacity with no mention of a representative. Terzol Jobey later produced a power of attorney purportedly executed on 1 December 2020, witnessed on 9 December 2020, and registered on 5 May 2021. The defendant Aribariho Andrew applied to strike out the plaint on grounds that it was signed by someone without valid authority. Terzol Jobey argued that he held powers of attorney but could not register them due to COVID-19 restrictions. The court found that the Uganda Registration Services Bureau was open for service in December 2020.

Issues

  1. Whether the plaint should be struck out for being signed by a person purporting to be the plaintiff's attorney without a valid power of attorney attached at the time of filing.
  2. Whether the defect in the plaint could be cured by subsequently registering a power of attorney.

Orders

  • The plaint in Civil Suit No. 77 of 2020 is struck out.
  • Costs awarded to the applicant.
  • Costs to be personally paid by Terzol Jobey.
  • The plaintiff may properly file a fresh suit.

Rules and key headnotes

Civil Procedure — Powers of Attorney — Requirement for Valid Authority at Time of Filing
A person purporting to act as attorney for a plaintiff in filing a plaint must have a valid power of attorney at the time of filing the suit, not merely a power of attorney executed but not yet registered or commissioned.
Civil Procedure — Pleadings — Fatal Defects — Plaint Signed Without Authority
A plaint filed in the name of a plaintiff but signed by another person purporting to be the plaintiff's attorney without a valid power of attorney attached at the time of filing is fatally defective and must be struck out, as the court cannot establish whether the suit is legitimate or fictitious.
Civil Procedure — Powers of Attorney — Definition and Requirements
A power of attorney is a deed by which one person empowers another to represent or act in their stead either generally or for specified purposes, and grants authority of the principal to an agent to act on behalf of the principal.
Civil Procedure — Pleadings — Representative Capacity — Disclosure Requirements
Where a person institutes a suit as the plaintiff's lawful attorney, this representative capacity must be clearly indicated in the plaint itself; without such indication and proper authorization, the purported attorney remains foreign to the plaint and the plaint cannot stand.

Legislation cited (10)

Cases cited (1)

  • Gold Trust Bank (U) Ltd v Josephine Zalwango Nsimbe (High Court Civil Suit No. 226 of 1992)

Full judgment

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

Aribariho v Nakayiki (Miscellaneous Application No. 56 of 2021) [2021] UGHCCD 211 (5 November 2021)
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.