Wagabaza (suing through next kin wagabaza God ) v Olira and Others (Civil Suit 146 of 2017)

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

Holding

Held that a suit instituted by a person purporting to act as next friend for a person of unsound mind is incompetent where no written authority from the next friend is attached to the plaint as required by Order 32 Rule 2 of the Civil Procedure Rules. The requirement to attach written authority at the time of filing is mandatory and cannot be cured by subsequent application. Article 126(2)(e) of the Constitution does not permit disregard of mandatory procedural requirements where the defaulting party has not demonstrated that it was undesirable to pay regard to the technicality. Suit dismissed with costs.

Outcome

Suit dismissed as incompetent

Facts

The plaintiff, Wagabaza Valantin, suing through next kin Wagabaza God, instituted a suit seeking to set aside execution, claiming that the 2nd defendant bailiff wrongfully attached 44.123 acres of his customary land at Kigezere-Iringa village in Kamuli district in excess of a warrant to attach unregistered land measuring 50ft by 12ft, and demolished property worth UGX 152,380,750. The defendants raised preliminary objections that the plaint disclosed no locus standi, was res judicata, and was barred in law. The plaintiff's counsel submitted that there was a typing error (next kin instead of next friend) and that Wagabaza Valantin was incapacitated due to terminal illness. Before an application for validation of written authority could be heard, Wagabaza Valantin died on 23 March 2018. No written authority from the next friend was attached to the plaint at the time of filing.

Issues

1. Whether the suit is incompetent before this Court.
2. Whether the suit is res judicata.
3. Whether Civil Suit No. 146 of 2017 is barred in law as against the 2nd Defendant.

Orders

• The first preliminary objection is upheld.
• The suit is dismissed with costs to the defendants.

Rules and key headnotes

Legislation cited (12)

• Civil Procedure Rules Order 3 Rule 1
• Civil Procedure Rules Order 3 Rule 2(a)
• Civil Procedure Rules Order 7 Rule 11(d)
• Civil Procedure Rules Order 32 Rule 1
• Civil Procedure Rules Order 32 Rule 2
• Civil Procedure Rules Order 32 Rule 15
• Civil Procedure Act s.7
• Civil Procedure Act s.34(1)
• Civil Procedure Act s.98
• Judicature Act s.46(1)
• Judicature Act s.46(2)
• Constitution of Uganda Article 126(2)(e)

Cases cited (15)

• Musa Gawa and 6 Others v Hajji Mitha & Company Ltd (Miscellaneous Application No. 477 of 2016)
• Lena Nakalema Binaisa and 3 Others v Mucunguzi Myers (HCMA No. 460 of 2013)
• Kaigana Vs Daboboubou (1986) HCB 59
• Makula International Vs Cardinal Wamala Nsubuga (1982) HCB 11
• Kiiza Walusimbi and 2 Others v Senyimba and 3 Others [2013] UGHCLD 11
• Joyce Kinyankwazi Vs Hezekia K. Ndugga & Anor [1974] HCB
• Bifabusha Vs Turyazooka [2002] EA 330
• Wandera and 2 Others v Mugenyi and Another (Civil Appeal No. 61 of 2009)
• Francis Nansio Mocah v Nuwa Walakira (SCCA No. 23 of 1994)
• Amrit Goyal v Harichand Goyal and 3 Others (CACA No. 109 of 2004)
• Njau and Others Vs City Council of Nairobi [1976-1985]1 EA 397
• Dima Domnic Poro v Inyani and Another (Civil Appeal No. 17 of 2016) [2017] UGHCCD 154
• Kasirye Byaruhanga and Co. Advocates v Uganda Development Bank (SCCA No. 2 of 1997)
• Mulindwa George William v Kisubika Joseph (SCCA No. 12 of 2014)
• Kiddu Phoebe v Board of Governors, St. Mary College Kisubi (Civil Suit No. 466 of 2018)

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