Wakilii

Mabberi Allen Blessing(Suing through her lawful Attorney Bitera) and Another v Seremba Alias Muwanguzi) (Civil Miscellaneous Application No. 898 of 2020)

High Court · [2021] UGHCLD 99 Application Granted — Suit Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out amended plaint as defective and filed by non-existent person, arising from consolidated civil suit originally commenced as HCCS No. 222 of 2015
Decision
Underlying civil suit HCCS No. 2370 of 2016 struck out

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the respondent deliberately assumed dual identities (Sseremba Donald and Don Muwaguzi) in different capacities to create false representations and deceive the bank and court. The respondent entered into a tenancy agreement with himself, swore affidavits in conflicting capacities, and attempted to cure fundamental illegality through a deed poll sworn after proceedings commenced. Court applied Makula International principle that illegality overrides all questions of pleading. Application granted, suit struck out with costs.

Outcome

Underlying civil suit HCCS No. 2370 of 2016 struck out

Facts

Don Muwanguzi mortgaged land to Bank of Africa Uganda Ltd on 7 June 2011 as security and subsequently defaulted. The bank instructed Armstrong Auctioneers to sell the property. On 4 February 2013 a person using the name Sseremba Donald received a letter accepting his offer to purchase the property for UGX 140 million. On 1 June 2013 Sseremba Donald entered into a tenancy agreement with Don Muwanguzi (himself) to commence 1 June 2015. On 26 November 2013 the bank advertised and sold the property to the applicant. On 6 March 2015 the bank filed Miscellaneous Cause No. 27 of 2015 seeking eviction of Don Muwanguzi. On 24 March 2015 Sseremba Donald filed HCCS No. 222 of 2015 claiming specific performance and simultaneously filed affidavits in MC 27/2015 in different capacities — in one stating he was in occupation and Don Muwanguzi was his tenant, and in another that he was a tenant with no proprietary interest. On 26 August 2015 Sseremba Donald swore a deed poll abandoning the name Sseremba Donald and adopting Don Muwanguzi. The two matters were consolidated. The applicants applied to strike out the amended plaint as materially defective and filed by a non-existent person.

Issues

  1. Whether the applicant had the capacity to bring this application?
  2. Whether the amended plaint in HCCS No. 2370 was defective or not?
  3. Whether the plaintiff in HCCS No. 222 of 2015 assumed double capacity, and if so, whether the action was contrary to the law?

Orders

  • Application granted.
  • HCCS No. 222 of 2015 (renumbered as HCCS No. 2370 of 2016) struck out as bad in law.
  • Costs awarded to the applicants.

Rules and key headnotes

Service of Process — Proof of Service — Summons to File Defence
Proof of service of summons is by affidavit of service as required by Order 5 rule 16 of the Civil Procedure Rules. Attendance at court proceedings in a related interlocutory application does not constitute proof of service of summons to file defence in the main suit. Until summons have been issued and served with proof filed, the suit remains redundant.
Amendment of Pleadings — Introduction of New Cause of Action
The Civil Procedure Rules do not bar the introduction of a new cause of action or causes of action through an amendment to a plaint. Amendments are allowed under Order 6 rule 19 even if they change a cause of action, provided the amendment is necessary to determine the real question in controversy between the parties and any prejudice can be compensated by costs.
Fraud — Dual Identity — False Representation
Where a litigant deliberately assumes dual identities in different capacities with the intention to pervert the truth, falsely represent facts, and deceive the court and other parties, such conduct constitutes fraud. Fraud includes any intentional perversion of truth for the purpose of inducing another to part with something valuable or surrender a legal right, whether by false allegations, concealment of truth, or any act calculated to deceive.
Illegality — Makula Principle — Striking Out
A court of law cannot sanction what is illegal. Illegality, once brought to the attention of the court, overrides all questions of pleading including any admissions made thereon. Where a suit is founded on fraudulent dual identity and deliberate acts of dishonesty, the suit is bad in law and must be struck out.
Tenancy — Tenancy Agreement with Oneself — Impossibility
A person cannot enter into a tenancy agreement with himself in dual capacities as landlord and tenant. Such an arrangement is legally impossible and constitutes evidence of fraudulent intent where used to misrepresent facts to a court or third parties.
Deed Poll — Retrospective Effect — Curing Prior Illegality
A deed poll sworn to change or abandon a name does not operate retrospectively to cure illegality or fraud committed under the abandoned name before the deed poll was executed. Where a deed poll is executed after proceedings have commenced in an attempt to regularise dual identity used to deceive, it cannot cure the fundamental defect in the suit.
Locus Standi — Capacity to Bring Application — Parties to Consent Order
A party who was sued as a defendant in the underlying suit that was subsequently consolidated retains capacity to bring an application challenging the validity of the amended plaint, even if that party was not present when the consent order for consolidation was made. Proper service of amended pleadings and filing of a defence confer capacity to challenge the proceedings.

Legislation cited (14)

Cases cited (12)

  • Gaso Transport Services (Bus) Ltd v Obene [1990-1994] EA 88
  • Eastern Bakery v Castelino [1958] EA 462
  • Ejab Family Investment and Trading Company Ltd v Centenary Rural Development Bank Ltd (Civil Suit No. 0001 of 2014)
  • Kanyabwera v Tumwebaze (Supreme Court Civil Appeal No. 6 of 2004)
  • Rwabuganda v Bitamissi (Civil Appeal No. 87 of 2010)
  • Said Hack v IUIU (Supreme Court Civil Appeal No. 47 of 1995)
  • Mulowooza Brothers v N Shah & Co Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Simon Musisi Kiwanuka V. Arthur Church
  • Wasswa Primo V. Molder (U) Ltd
  • Makula International v Cardinal Nsubuga (1982) HCB 11
  • Zaabwe v Orient Bank (Supreme Court Civil Appeal No. 04 of 2006)
  • V.G Keshwala T/A & Sons V. MM. Sheik Dawood HCMA No. 543 of 2011

Full judgment

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

Mabberi_Allen_Blessing(Suing_through_her_lawful_Attorney_Bitera)_and_Another_v_Seremba_Alias_Muwanguzi)_(Civil_Miscellaneous_Application_No._898_of_2020)_[2021]_UGHCLD_99_(9_August
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.