Wakilii

Mpondwa Cross Boarders Traders Cooperatives Society Limited v Isango Subcounty Local Government (Miscellaneous Application No. 106 of 2022)

High Court · [2022] UGHCCD 266 · 2022 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to dismiss civil suit and attendant applications for temporary and interim injunctions
Decision
Civil suit struck out; attendant applications discontinued; respondent's advocates disqualified from further representation until properly procured; applicant permitted to collect revenue from the market

Observed later treatment

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Holding

The High Court held that while the naming of the respondent as 'Isango Sub County Local Government' instead of 'Isango Sub County Council' was a misnomer that could be cured by amendment, the respondent failed to prove exclusive possession of the suit land necessary to sustain a trespass action. The court found that the establishment of the Isango cattle market was irregular and intended to frustrate the district's revenue collection and the applicant's lawfully awarded tender. Civil Suit No. 043 of 2022 was struck out for failure to disclose a reasonable cause of action. The court also disqualified the respondent's advocates for being irregularly instructed without following public procurement procedures.

Outcome

Civil suit struck out; attendant applications discontinued; respondent's advocates disqualified from further representation until properly procured; applicant permitted to collect revenue from the market

Facts

The applicant, a cooperative society, was contracted by Kasese District Local Government in July 2022 to collect revenue from a cattle market at Mpondwe-Lhubiriha Town Council after a formal procurement process. In September 2022, the respondent sub-county held an extraordinary council meeting and created a new cattle market at Isango on land registered in the name of Kasese District Local Government. The Minister for Local Government convened a meeting and directed that the market business irregularly shifted to Isango be operated there but revenue go to the town council, and that the approved tenderer take on the tender immediately. The respondent then filed a civil suit alleging trespass and seeking a declaration that the land belonged to it, along with applications for temporary and interim injunctions. The applicant sought dismissal of the suit and applications on multiple grounds including that the respondent was a non-existent entity, the suit was frivolous, the suit was commenced without proper council authority, and the respondent's advocates were irregularly instructed without following public procurement procedures.

Issues

  1. Whether the respondent (Isango Sub County Local Government) is a fictitious and non-existent entity incapable of commencing civil proceedings.
  2. Whether Civil Suit No. 043 of 2022 is frivolous and vexatious for being based on trespass to land registered in the name of Kasese District Local Government.
  3. Whether the commencement of Civil Suit No. 043 of 2022 was done without the authority of Isango Sub County council as required by law.
  4. Whether the instructions to Bagenda & Co. Advocates to represent the respondent without complying with public procurement laws is illegal.
  5. Whether the respondent unlawfully started a cattle market on land registered in the names of Kasese District without proper approval.

Orders

  • Civil Suit No. 043 of 2022 is struck out with no order as to costs.
  • Miscellaneous Applications No. 101 & 102 of 2022 pending before this court are discontinued with no order as to costs.
  • M/S Bagyenda & Co. Advocates are disqualified from further representing the respondent in any legal matter until their services have been formally procured by the respondent.
  • The establishment of the Isango cattle holding ground market at Kabafu 1 village, Isango Sub County by the respondent was irregular and the same be regularised at the same place with the consent of the Kasese District Council.
  • The applicant to be allowed to collect the revenue from the said market in accordance with its contract with Kasese District Council.
  • Each party bears its own costs of this application.

Rules and key headnotes

Civil Procedure — Parties — Misnomer — Effect on Validity of Proceedings
A misnomer in naming a party to proceedings does not render the proceedings invalid where the correct party can be identified without confusion. The naming of a sub-county council as 'sub-county local government' is a misnomer that may be cured by amendment without affecting the substantive rights of either party.
Land & Property — Trespass to Land — Requirements for Cause of Action — Exclusive Possession
To sustain an action for trespass to land, the plaintiff must prove exclusive possession of the land at the time of the alleged trespass. Trespass is a possessory action designed to protect possessory, not necessarily ownership, interests in land. The plaintiff must demonstrate actual physical possession and exclusive control of the land. Exclusive possession must be derived from a lawful arrangement such as ownership, a lease, or permission of the rightful owner.
Civil Procedure — Pleadings — Failure to Disclose Cause of Action — Striking Out
A suit will be struck out for failure to disclose a reasonable cause of action where the plaintiff has not pleaded or proved the essential elements of the cause of action relied upon. In a trespass action, failure to prove exclusive possession of the land is fatal to the claim.
Administrative Law — Local Government — Authority to Commence Proceedings — Council Resolution
Under Regulation 27 of the Local Government Councils Regulations, a prosecution by or on behalf of a sub-county council or in any civil case in which the local council is a party requires the council to convene and pass a resolution to that effect. The requirement to attach the resolution to the plaint has been dispensed with by the Civil Procedure (Amendment) Rules 2019, which require parties to provide all information at the hearing.
Administrative Law — Public Procurement — Legal Services — Requirement for Formal Procurement Process
Every local government is a public body and a procurement and disposing entity subject to the Public Procurement and Disposal of Public Assets Act. Legal services are professional services that must be procured through a formal process of public procurement. A local government cannot procure professional services without following formal public procurement procedures. However, the disqualification of an advocate on grounds of irregular procurement does not invalidate pleadings already filed on behalf of the party; the disqualification is from further representation.
Administrative Law — Local Government — Powers and Functions — Establishment of Markets
Under Part 4 of the Second Schedule to the Local Governments Act, functions devolved by a district council to lower local government councils include market establishment, management and collection of revenue. However, a sub-county council must exercise such powers lawfully and in accordance with district council resolutions where applicable. The irregular establishment of a market in contravention of existing arrangements may be declared invalid.

Legislation cited (14)

Cases cited (4)

  • Salmond and Heuston on the Law of Torts, 19th edition (London: Sweet & Maxwell, (1987) 46)
  • Odyeki and Another v Yokonani and 4 Others (High Court Civil Appeal No. 9 of 2017)
  • Fakrudin & another Vs Kampala District Land Board & another
  • Attorney General and Another v Uganda Law Society [UGHCCD 99]

Full judgment

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

Mpondwa Cross Boarders Traders Cooperatives Society Limited v Isango Subcounty Local Government (Miscellaneous Application No. 106 of 2022) [2022] UGHCCD 266 (16 November 2022)
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.