Wakilii

Musoke Gukiina V Speke Hotel Limited & 3 Others (Misc. Application No. 239 of 2019)

High Court · [2019] UGHCLD 37 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for leave to amend plaint and substitute party in land suit
Decision
Application for leave to amend plaint dismissed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

An applicant cannot substitute a non-existent party with an existent party by way of amendment. Where a plaintiff sues a company with no legal existence, the plaint is a nullity ab initio and there is nothing to amend. The action must be struck out as the alleged party has no legal existence and cannot maintain an action.

Outcome

Application for leave to amend plaint dismissed

Facts

The applicant filed Civil Suit No. 002 of 2019 against the respondents concerning land comprised in Busiro Block 443 plots 49, 52, 74, 75 and 76 at Kongero in Wakiso District. After filing, the applicant obtained information from the Commissioner Land Registration showing the land was registered in the name of Speke Hotel (1996) Ltd, not Speke Hotel Limited which he had sued as 1st respondent. The applicant sought leave to amend the plaint by substituting the 1st respondent with Speke Hotel (1996) Ltd. Rajiv Ruparelia, claiming to be a business associate of the 2nd respondent and director of Speke Hotel (1996) Ltd, filed an affidavit in opposition. The respondents had already filed written statements of defence before the application was brought.

Issues

  1. Whether the affidavit of Rajiv Ruparelia is valid as far as this application is concerned
  2. Whether the applicant should be granted leave to amend the plaint by substituting the 1st respondent with Speke Hotel (1996) Ltd

Orders

  • The affidavit of Rajiv Ruparelia expunged from the record.
  • Application dismissed.
  • Costs awarded to the respondents.

Rules and key headnotes

Civil Procedure — Affidavits — Authority to Swear — Business Associate Without Express Authority
Where a party swears an affidavit without the authority of the party to the suit, the affidavit is defective for want of authority. Being a business associate does not confer authority to swear an affidavit on behalf of another party without express authorization.
Civil Procedure — Amendment of Pleadings — Distinction Between Amendment and Substitution of Parties
A party cannot substitute parties by way of amendment because an amendment deals with the body of pleadings while substitution concerns parties. Amendment under Order 6 rule 19 is distinct from substitution under Order 1 rule 10(2) of the Civil Procedure Rules.
Civil Procedure — Non-Existent Parties — Effect on Proceedings — Substitution Not Permitted
Where the amendment by way of substitution of parties purports to replace a party that has no legal existence, the plaint must be rejected. A non-existent person cannot sue or be sued, and once the court is made aware that a party is non-existent and incapable of maintaining an action, the action must be struck out.
Civil Procedure — Nullity — Plaint Against Non-Existent Entity — Nothing to Amend
A plaint filed against a non-existent entity is a nullity ab initio. Since the plaintiff sued a non-existent party, there is no cause of action disclosed and there is nothing to amend, as an illegality cannot be rectified by way of amendment or substitution.

Legislation cited (6)

Cases cited (10)

  • Taremwa K. Thomas v Attorney General and 2 Others (HMA No. 83 of 2012)
  • DFCU Bank Ltd v Muwanga Geoffrey (Misc. Application No. 240 of 2018)
  • Agro Supplier Ltd v Uganda Development Bank (High Court Civil Suit No. 379 of 2005)
  • Hon. Remmy Kasule v Jack Sabiti and Others (High Court Civil Suit No. 230 of 2006)
  • Muhamed Kasasa v Jasper Sirasi Bwogi (Civil Suit No. 42 of 2008)
  • Ntungamo District Local Council v John Karazarwe (1997) III KALR 52
  • Mulangira Ssimbwa v Board of Trustees Miracle Center and Another (Misc. Application No. 655 of 2005)
  • V.G Keshwala t/a and Sons v M.M. Sheik Dawood (High Court Misc. Application No. 543 of 2011)
  • Banque International De Commerce De Porto grand versus Gaukassaow (3)(1993)2 KB 682
  • Real Gaba Market Property Owner v Kampala Capital City Authority (Civil Suit No. 248 of 2008)

Full judgment

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

Musoke_Gukiina_V_Speke_Hotel_Limited_&_3_Others_(Misc._Application_No._239_of_2019)_[2019]_UGHCLD_37_(6_July_2019)
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.