Wakilii

The Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa & Mulangira Ssimbwa a.k.a Afidra Milton v The Board of T... (Misc. Applications No. 576 of 2006 & 655 of 2005; Misc. Applications No. 576 of 2006 & 655 of 2005) 2006 UGHC 69 (2006-05

High Court · [2006] UGHC 69 Application Granted; Plaint Rejected AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Two interlocutory applications arising from a civil suit: one seeking rejection of plaint for non-existent defendant; the other seeking leave to amend plaint by adding a party
Decision
Plaint rejected; suit struck out for naming a non-existent defendant

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A plaint filed against a defendant that does not exist as a legal entity must be rejected and cannot be cured by amendment. Where a defendant pleads non-existence and the plaintiff fails to establish the defendant's capacity to sue or be sued, the plaint is void. Amendment by adding or substituting a party is permitted only for minor matters of form not affecting the substance of party identity; substitution of a non-existent defendant is impermissible.

Outcome

Plaint rejected; suit struck out for naming a non-existent defendant

Facts

The plaintiff instituted HCCS No. 768 of 2004 against The Board of Trustees, Rubaga Miracle Centre Cathedral, claiming UGX 12,200,000 plus general damages and interest for monies allegedly due under an oral construction contract executed in 1999. The defendant filed a written statement of defence denying knowledge of its own existence or identity as a legal person. The defendant subsequently filed Miscellaneous Application 576 of 2006 seeking rejection of the plaint on grounds that the defendant does not exist and has no capacity to sue or be sued. The plaintiff then filed Miscellaneous Application 655 of 2005 seeking leave to amend the plaint by adding Pastor Robert Kayanja, who allegedly negotiated the construction contract, as second defendant alongside the Board of Trustees.

Issues

  1. Whether the plaint should be rejected where the defendant is described as a non-existent legal entity with no capacity to sue or be sued.
  2. Whether the plaint can be amended to add a proper defendant where the named defendant does not exist in law.

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 — Pleadings — Rejection of Plaint — Capacity to Sue — Non-Existent Defendant
A plaint filed against a defendant that does not exist as a real or legal person capable of suing or being sued must be rejected under Order 7 Rules 11 and 19 of the Civil Procedure Rules.
Civil Procedure — Burden of Proof — Capacity to Sue — Defendant's Identity
Where a defendant expressly pleads that it is not aware of its own identity or existence and files its defence in protest, the burden of proof shifts to the plaintiff under Section 101(2) of the Evidence Act to establish the proper capacity of the defendant to sue and be sued.
Civil Procedure — Amendment of Pleadings — Substitution of Parties — Non-Existent Party
A suit in the names of a wrong plaintiff or defendant cannot be cured by amendment. Where an 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 of Pleadings — Scope of Order 1 Rule 10 — Matters of Form versus Substance
While Order 1 Rule 10(2) empowers the court to add or strike out a party improperly joined, and Order 1 Rule 10(4) allows amendment of a plaint where a defendant is added or substituted, such amendments 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 — Costs — Non-Existent Party — No Order as to Costs
Where the court determines that there is no defendant to the suit because the named defendant does not exist, no order will be made as to costs, since a non-existing 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 (Miscellaneous 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 T... (Misc. Applications No. 576 of 2006 & 655 of 2005; Misc. Applications No. 576 of 2006 & 655 of 2005) 2006 UGHC 69 (2006-05
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.