Wakilii

The Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa & Mulangira Ssimbwa a.k.a Afidra Milton v The Board of Trustees, Miracle Centre & Anor (Misc. Applications No. 576 of 2006 & 655 of 2005) (Mis

High Court · [2006] UGHC 576 Application Granted; Plaint Rejected AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Two interlocutory applications: one seeking rejection of plaint on grounds of non-existent defendant; the other seeking leave to amend plaint by adding a party
Decision
Plaint rejected; underlying suit effectively struck out for non-existent defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A suit brought in the name of a non-existent defendant must be rejected and cannot be cured by amendment. Where a defendant described in a plaint does not exist as a real or legal person capable of being sued, the plaint is no plaint at all and must be rejected under Order 7 Rules 11 and 19 of the Civil Procedure Rules. Amendment by way of adding or substituting a proper party is not permissible where the original defendant lacks legal existence.

Outcome

Plaint rejected; underlying suit effectively struck out for non-existent defendant

Facts

Mulangira Ssimbwa instituted HCCS No. 768 of 2004 against The Board of Trustees, Rubaga Miracle Centre Cathedral, claiming UGX 12,200,000 for unpaid construction work allegedly performed in 1999. The defendant filed a defence asserting it was not aware of its own identity or existence as a legal person. The applicants (trustees) then applied to reject the plaint on grounds that the named defendant did not exist as a real or legal person capable of being sued. The plaintiff simultaneously applied for leave to amend the plaint by adding Pastor Robert Kayanja as a party. The court had to determine whether a plaint naming a non-existent defendant could stand or be cured by amendment.

Issues

  1. Whether a plaint brought against a non-existent defendant should be rejected under Order 7 Rules 11 and 19 of the Civil Procedure Rules.
  2. Whether a plaint may be amended to add a new party where the original defendant is a non-existent legal person.
  3. Whether a non-existent defendant can be substituted by amendment under Order 1 Rule 10 of the Civil Procedure Rules.

Orders

  • Miscellaneous Application Number 576 of 2005 allowed.
  • Plaint in HCCS No. 768 of 2004 rejected.
  • Miscellaneous Application No. 655 of 2005 dismissed.
  • No order as to costs.

Rules and key headnotes

Civil Procedure — Rejection of Plaint — Non-Existent Party — Order 7 Rules 11 and 19 CPR
A plaint brought against a defendant that does not exist as a real or legal person capable of being sued must be rejected under Order 7 Rules 11 and 19 of the Civil Procedure Rules.
Civil Procedure — Amendment of Pleadings — Substitution of Non-Existent Party — Order 1 Rule 10 CPR
A suit in the names of a wrong plaintiff or defendant cannot be cured by amendment, and where the amendment by way of substitution purports to replace a party that has no legal existence, the plaint must be rejected as it is no plaint at all.
Civil Procedure — Amendment — Minor Matters of Form versus Substance
Amendments under Order 1 Rule 10 of the Civil Procedure Rules can only be made if they are minor matters of form not affecting the substance of the identity of the parties to the suit.
Civil Procedure — Burden of Proof — Capacity to Sue and Be Sued
Where a defendant expressly pleads that it is not aware of its own identity or existence, the burden shifts to the plaintiff to establish the proper capacity of the defendant to sue and be sued under Section 101(2) of the Evidence Act.
Civil Procedure — Costs — Non-Existent Party
Where a court finds that there is no defendant to a suit because the named defendant does not exist, no order as to costs will be made since a non-existent party cannot be paid costs.

Legislation cited (5)

Cases cited (4)

  • The Fort Hall Bakery Supply Co v Frederick Muigai Wangoe [1959] EA 474
  • Benjamin Sajjabi T/A Namataba v Timber Manufacturers Limited [1978] HCB 202
  • Reliable African Insurance Agencies v National Insurance Corporation [1979] HCB 59
  • Aristoc Booklex Limited v Vienna Academy Limited (Misc. Application No. 503 of 2000)

Full judgment

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The Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa & Mulangira Ssimbwa a.k.a Afidra Milton v The Board of Trustees, Miracle Centre & Anor (Misc. Applications No. 576 of 2006 & 655 of 2005) (Mis
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.