Wakilii

Naluwooza v Namwandu Yake Lunkuse Kyaze& 2 Ors (Civil Appeal No.59 of 2009)

High Court · [2009] UGHC 149 · 2009 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from Chief Magistrate's Court order requiring appellant to pay costs of first and third respondents upon withdrawal of suit against them
Decision
Matter remitted to Chief Magistrate's Court for trial against legal representatives of second respondent

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Where a plaintiff withdraws a suit against defendants who are dead, Order 24 rule 2 of the Civil Procedure Rules applies, not Order 25 rule 1(1). Order 25 rule 1(1) requiring payment of costs applies only where the party against whom the claim is withdrawn is not dead. The Chief Magistrate erred in law by applying Order 25 rule 1(1) and ordering costs against the appellant when the respondents were deceased.

Outcome

Matter remitted to Chief Magistrate's Court for trial against legal representatives of second respondent

Facts

The appellant instituted Civil Suit No. 236 of 1990 in the Chief Magistrate's Court at Mengo against three respondents claiming trespass on her land. By 2008, the second respondent had died. The appellant filed Miscellaneous Application No. 09 of 2008 seeking leave to substitute five persons claiming to be beneficiaries of the second respondent's estate. By the time of hearing, the first and third respondents had also died. The appellant opted to withdraw the case against the first and third respondents to maintain the suit against the second respondent's substituted representatives. The Chief Magistrate recorded the withdrawal and invoked Order 25 rule 1(1) of the Civil Procedure Rules, ordering the appellant to pay costs of the first and third respondents before proceeding against the second respondent's legal representatives.

Issues

  1. Whether the learned Chief Magistrate was right to order the appellant to pay the costs of the first and third respondents before proceeding further with the case against the second respondent.
  2. Whether the Chief Magistrate correctly applied Order 25 rule 1(1) of the Civil Procedure Rules when the first and third respondents were dead.

Orders

  • Appeal allowed.
  • Order requiring appellant to pay costs to first and third respondents set aside for being both illegal and irregularly issued.
  • Civil Suit No. 236 of 1990 returned to Chief Magistrate's Court for trial against legal representatives of second respondent.
  • Costs of appeal to abide by outcome of Civil Suit No. 236 of 1990.

Rules and key headnotes

Civil Procedure — Withdrawal of Suit — Death of Party — Applicable Procedure
Where a plaintiff withdraws a suit against defendants who are dead, Order 24 rule 2 of the Civil Procedure Rules applies, not Order 25 rule 1(1), and no order for costs is required.
Civil Procedure — Costs — Order 25 Rule 1(1) — Scope of Application
Order 25 rule 1(1) of the Civil Procedure Rules requiring payment of costs upon withdrawal of a suit applies only to instances where the party against whom the claim is withdrawn is not dead.
Civil Procedure — Costs Orders — Proper Forum for Issuance
A costs order against parties to a substantive suit should be made in the suit itself and not in a miscellaneous application filed within that suit where the parties against whom costs are ordered are not parties to the miscellaneous application.

Legislation cited (3)

Cases cited (1)

  • Mawji v Arusha General Store [1970] EA 137

Full judgment

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

Naluwooza v Namwandu Yake Lunkuse Kyaze& 2 Ors (Civil Appeal No.59 of 2009) [2009] UGHC 149 (2 April 2009)
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.