Wakilii

Wancha and 8 Others v Onya (Miscellaneous Application 65 of 2023)

High Court · [2024] UGHC 795 · 2024 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike off two named appellants from a memorandum of appeal on grounds of typing error and lack of instructions
Decision
Application to strike off two named appellants from the memorandum of appeal dismissed for lack of sufficient evidence and proper service

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court dismissed an application to strike off two named appellants from a memorandum of appeal. The applicants alleged the inclusion of Wancha Musa and Maraka John Stephen was a typing error and that one had died. The court held that the applicants failed to prove their allegations on a balance of probabilities, lacked documentary evidence of death or lack of instructions, and failed to serve the application on the parties sought to be struck off. Striking parties off without proper evidence and service would work an injustice.

Outcome

Application to strike off two named appellants from the memorandum of appeal dismissed for lack of sufficient evidence and proper service

Facts

The applicants brought an application to strike off the names of Wancha Musa and Maraka John Stephen from a memorandum of appeal in Land Civil Appeal No. 37 of 2022, alleging their inclusion was an honest typing error. The applicants' law firm claimed it was initially instructed by five persons and later joined by two others, but not by the two persons sought to be struck off. The applicants alleged that Wancha Musa had died during lower court proceedings. The memorandum of appeal contained the names of all defendants as appearing in the lower court judgment. The applicants failed to attach the memorandum of appeal to their application or provide documentary evidence of Wancha Musa's death. No affidavit of service was filed showing that the two persons sought to be struck off had been served with the application.

Issues

  1. Whether the application to strike off two named appellants from the memorandum of appeal has merit.
  2. What remedy is available to the parties.

Orders

  • Application dismissed.
  • Costs to the respondent.

Rules and key headnotes

Civil Procedure — Joinder and Parties — Striking Off Parties — Evidence Required
An application to strike off parties from pleadings must be proved on a balance of probabilities with concrete evidence; allegations by counsel alone that certain appellants did not give instructions are insufficient without sworn evidence from the parties sought to be removed or their representatives.
Civil Procedure — Joinder and Parties — Striking Off Parties — Service of Application
Where an application seeks to strike off named parties, the applicant must serve the application on all persons whose names are to be struck off; failure to serve the application or obtain their sworn statements or personal appearance works an injustice to those parties.
Civil Procedure — Death of a Party — Evidence Required
Where an applicant alleges the death of a party to support striking off that party's name, the allegation must be supported by documentary evidence such as a death certificate, letters of administration, or representation by a personal representative; the court cannot act on speculation or conjecture as to death.
Civil Procedure — Amendments — Wrong Provision Cited — Constitutional Remedy
Citing or proceeding under a wrong law is not fatal as long as what the party seeks is provided in law, with Article 126(2)(e) of the Constitution providing a remedy to cure such lapses.
Civil Procedure — Joinder and Parties — Procedure for Adding or Striking Off Parties
The procedure for striking off or adding parties is provided for under Order 1 Rule 13 of the Civil Procedure Rules; an application may be made to the court at any time before trial by motion or summons or at trial in a summary manner.

Legislation cited (10)

Cases cited (4)

  • Gaso Transport Services Ltd v Martin Adala Obene (Supreme Court Criminal Appeal No. 4 of 1994)
  • Balaba Emmanuel and 6 Others v Mawejje Hanifa and Another (Miscellaneous Application No. 07 of 2021)
  • Soroti Municipal Council v Akello Juliet and Another (High Court Miscellaneous Application No. 014 of 2020)
  • Dr Chrispus Kiyonga v Kahyana Jolly (High Court Miscellaneous Application No. 0071 of 2022)

Full judgment

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

Wancha and 8 Others v Onya (Miscellaneous Application 65 of 2023) [2024] UGHC 795 (28 August 2024)
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.