[2023] UGHCCD 137

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT JINJA

## **CIVIL SUIT NO. 118 OF 2017**

#### **BETWEEN**

# 1. AMRITLAL METHA KIUNJLATA PANCHASRA

2. GITESH JAYANTILAL VASA :::::::::::::::::::::::::::::::::: (All suing through an Attorney **JULIET NAIGAGA)**

## **VERSUS**

#### 1. SAKINA WAZIRI

- 2. NANDAULA AISHA - 3. HAMIDA MOHAMED - 4. HABIB NARGIS - 5. DEPARTED ASIANS PROPERTY :::::::::::::::::::::::::::::::::::: **CUSTODIAN BOARD (DAPCB)**

## BEFORE: HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA **NTAMBI**

## **RULING ON PRELIMINARY OBJECTIONS**

Counsel Juma Kinyiri and Godfrey Malinga appeared for the Plaintiffs, Counsel Geoffrey Komakech for the 5^th Defendant and Counsel Kabiswa Hillary for the 1^st, $2^nd$ , $3^rd$ , and $4^th$ Defendants.

During the hearing of the case on 22^nd February 2023, the Plaintiffs' Counsel raised two Preliminary Objections and Counsel for the 1^st, 2^nd and 3^rd Defendants raised one preliminary objection for which both Counsel orally submitted hence this ruling. The objections raised by the Plaintiff's Counsel were briefly that;

- 1. The 1^st, 2^nd and 3^rd Defendant's Written Statement of Defence be struck off the record with costs since they failed to comply with Justice Eva Luswata's order to file a Written Statement of Defence that complied with the law. - 2. That the matter should proceed exparte against the 4^th Defendant who never filed a Defence.

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Counsel Kabwisa for the 1^st, 2^nd and 3^rd Defendants raised one preliminary objection which briefly was that the suit should be struck out against the 1^st Defendant who had died in 2005 before the institution of this suit.

The Plaintiffs' Counsel orally applied to substitute the 1^st Defendant, who had passed on in 2005, with her daughter who qualifies as a legal representative, in the event that Court allowed the suit to proceed against the 1^st Defendant.

Counsel Kabiswa also orally sought for Court's leave to enlarge time to allow the 4^th Defendant to file a defence since Counsel had only just been instructed to represent the 4^th Defendant.

#### **Submissions**

On the 1^st preliminary point of law, Counsel for the Plaintiffs submitted that the last time the matter came up for hearing before Justice Eva Luswata, it was for ruling on a point of law which ruling was delivered on 18^th June 2020. On the last page of that Ruling, it was held that the Written Statement of Defence for the 1^st, 2^nd, and 3^rd Defendants was not drafted in accordance with the law and the parties were ordered to file a Written Statement of Defence in compliance with the law under Order 6 rule 1 (2) of the Civil Procedure Rules as amended. To date, the same has never been done. Counsel prayed that the defence be struck off the record and that the same be done with costs.

As against the 4^th Defendant, Counsel Juma Kinyiri informed Court that the 4^th Defendant has never filed a Written Statement of Defence and the time for filing that defence has since lapsed. No leave was sought to file the Written Statement of Defence out of time. Counsel prayed for the matter to proceed exparte against the 4^th Defendant under Order 9 rule 10 of the Civil Procedure Rules.

In response to the 1^st preliminary objection, Counsel Hilary Kabiswa for the 1^st, 2^nd and 3^rd Defendants submitted that he had just taken up the matter from his late partner, Mr. Tebusweke Mayinja David upon being served with the hearing notice on 7^th October 2022 and that it was upon being served, that he realized the need to file the Written Statement of Defence as directed by Court in 2020. Counsel prayed that Court extends time to comply with the orders of Court. Counsel referred to Order 51 Rule 6 of the Civil Procedure Rules as amended which gives Court powers to enlarge time and Section 98 of the Civil Procedure Act which gives the High Court inherent powers to make such orders as may be necessary for the ends of justice.

With regard to the 4^th Defendant's failure to file a Written Statement of Defence, Counsel Kabiswa submitted that the 4^th Defendant had only just instructed him to

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represent him in this matter and sought Court's leave to enlarge time for the 4^th Defendant to file a Written Statement of Defence.

Counsel Kabiswa then raised a preliminary point of law and submitted that he had ascertained that the 1^st Defendant was now deceased having passed on in 2005. He argued that since her death pre-dates the proceedings, this only means that the current proceedings illegally commenced against the 1^st Defendant having commenced in 2017. He submitted that in the premises, the suit is incurably defective against the 1^st Defendant. Counsel prayed that the 1^st Defendant be struck out in that respect.

In rejoinder, concerning the failure to file an amended Written Statement of Defence as directed by Court due to the death of Advocate Mayinja Tebusweke as argued by Counsel Kabwisa, Counsel for the Plaintiff submitted that the instructions for this matter were served on the law firm of Tebusweke, Mayinja, Okello & Co. Advocates and not to an individual advocate in the law firm. All notices in the past have been served on the firm & they have been acknowledged by the firm and that therefore Counsel Kabwisa's excuse could not suffice in the circumstances.

Counsel submitted that he had noticed the alleged death of the 1^st Defendant from a written statement on record by a one Jamila Mohammed. In the affidavit of service sworn by the Aguma Andrew a court process server, he specifically stated in Paragraph 10 that the 4^th Defendant directed him to the home of the 1^st Defendant but did not find him.

He further stated that the death of the 1^st Defendant is a mere allegation and that Section 103 of the Evidence Act imposes the burden of proof of an allegation on a person who alleges or on the person who wants court to believe in its existence. Having come across a statement by Jamila Mohammed who in her statement states that she is related to the 1^st Defendant, Counsel prayed to proceed under Order 24 Rule 4 & 5 of the Civil Procedure Rules wherein the 1^st Defendant may be substituted with Jamila Mohammed a daughter to the deceased 1^st Defendant since she automatically qualifies as a legal representative to the deceased. Counsel submitted that since the 1^st Defendant had filed a Written Statement of Defence and although it had been castigated by Court, it would be in the interest of justice that the said prayer be granted.

In rejoinder to the issue of death of the 1^st Defendant, Counsel Kabwisa submitted that the contents of Order 24 rule 4 and 5 only come into play when the suit is instituted during the lifetime of the party not after the death of the party. Where a suit is instituted in the name of a non-existent party, the same is incurably defective and it cannot be amended. The only remedy is to strike it out against the party. He

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reiterated his prayer that the suit be struck out against the 1^st Defendant and should proceed against the other Defendants.

## Court's consideration

## Issues.

- 1. Whether the 1^st, 2^nd and 3^rd Defendants' Written Statement of Defence should be struck off in regard to the order in Justice Eva Luswata's Ruling of 18^th June, 2020. - 2. Whether the suit should be struck off the Court record as against the 1^st Defendant and whether the 1^st Defendant can be substituted with a legal representative. - 3. Whether the suit should proceed exparte as against the 4^th Defendant.

#### Issue 1.

It is on record that on the 18^th day of June 2020, my Learned Sister Justice Eva Luswata ruled that the 1^st, 2^nd and 3^rd Defendant's Written Statement of Defence was not drafted in accordance with the law and that an amended and compliant Written Statement of Defence be filed. To date, the compliant Written Statement of Defence has never been filed by Counsel for the 1^st, 2^nd and 3^rd Defendants. It is absurd that an advocate who a litigant has entrusted with his matter drafts documents/pleadings that contravene the provisions of the law. It is even more absurd that even when the Court exercises sympathy and orders the parties to make good the pleadings, the advocate still fails to do so.

As if that is not enough, Counsel for the 1^st, 2^nd and 3^rd Defendants having stated that he had only been notified about the need to amend his pleadings on 7^th October 2022 when he was served with a hearing notice, he still made no effort to seek leave of Court to extend time to amend his pleadings. He comes to Court after almost two and a half years of non-compliance with the order to make good his pleadings seeking extension of time with in which to honour the order.

Since there was no time frame within which Court ordered to file the amendment to the Defence, the Defendants ought to have done so within 14 days from the date of the order as provided for under Order 6 rule 25 of the Civil Procedure Rules.

Counsel for the 1^st, 2^nd and 3^rd Defendants did not make any effort to seek leave of Court even at the very least in October 2022 when he perused the file. Having read the decision of my learned Sister, Justice Eva Luswata, I realise that the amendments

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required concerning the 1^st, 2^nd and 3^rd Defendants Written Statement of Defence was for it to be divided into paragraphs and numbered consecutively in accordance with Order 6 rule 2 of the Civil Procedure Rules. Surely such minimal amendment should not take Counsel nearly two and a half years to effect. As stated earlier, Counsel Kabwisa should have sought leave of Court to effect this minimal amendment at the very least in October 2022 when he perused the file. This Court interprets such inaction as total negligence of Counsel.

That as it may be, Counsel for the Defendants prayed for enlargement of time to file the Written Statement of Defence.

In Tight Security Ltd v. Chartis Uganda Insurance Company Limited and another H. C. Misc. Application No 8 of 2014, it was held that for an application of this kind to be allowed, the applicant must show good cause. Counsel Kabwisa mentioned that Counsel MayinjaTebusweke who was in personal conduct of the case had passed on and he only got to peruse the file in October 2022 on being served with a hearing notice. My findings from the Uganda Law Society indicate that Counsel Tebusweke passed on in June 2021. In Uganda V. Patricia Ojangole Criminal Case No1/2014, it was held that

"Besides, instructions to a partnership of lawyers goes to the firm and not to individual advocates. An individual partner cannot practice law in a partnership firm independent of other parties. This would be contrary to the Partnership Act...."

It is nearly two years since Counsel Tebusweke died and no good cause has been demonstrated by Counsel Kabwisa to persuade this Court to extend time to file the non-compliant defence in respect of the 1^st, 2^nd and 3^rd Defendants. In the circumstances, leave to file this defence is denied and the Plaintiff is allowed to proceed exparte against the 1^st, 2^nd and 3^rd Defendants. The Written Statement of Defence in respect of the $1^{st}$ , $2^{nd}$ and $3^{rd}$ Defendants is accordingly struck off the court record with costs.

#### Issue 2.

It is an admitted fact that the 1^st Defendant is deceased. Counsel for the 1^st, 2^nd and 3^rd Defendants stated that the 1^st Defendant passed away in 2005 a fact that was never rebutted by any party. This was before the suit was filed. This leaves me wondering as from whom Counsel obtained instructions to represent the deceased 1^st Defendant.

That as it is, Counsel for the Plaintiff prayed for substitution of the 1^st Defendant with Jamila Mohammed who is related to the 1^st Defendant.

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It is trite law that as a general rule, a plaintiff in civil proceedings is 'domonious letis' that is he is free to sue whoever he thinks he has a cause of action against See: Batemuka Vs Anywa (1977) HCB 77. However, a suit cannot be sustained against a person who is dead. Where a suit is commenced against a dead person, such a suit is a nullity. In Babubhai Dhanji Pathak v. Zainab Mrekwe (1964) EA 24, it was held that a suit cannot subsist against a dead person and therefore the suit is incurably defective.

In the instant case, it was never contested that the 1^st Defendant died in 2005. This suit was filed in 2017. There is no doubt that the suit was filed when the 1^st Defendant had ceased to exist. I have no reason to depart from the holding in Pathak vs Mrekwe (supra). The 1^st Defendant is struck off the court record. The matter will thus proceed against the rest of the Defendants. It was argued by the Plaintiff that the 1st Defendant should be substituted with her daughter who qualifies as a legal representative. Plaintiff's Counsel orally applied for the same. However, under Order 24 rule 12 such application for substitution requires a formal application which was not complied with by the Plaintiff's Counsel. That notwithstanding, the suit against the 1^st Defendant was nullity ab initio therefore substitution cannot arise in the circumstances.

### Issue 3.

Counsel for the 1^st, 2^nd and 3^rd Defendants informed Court that he had received instructions from the 4^th Defendant to represent him in this matter. Counsel did not furnish Court with a Notice of Instructions or any evidence to that effect.

Under Regulation 2(1) of the Advocates (Professional Conduct) Regulations; it is provided that;

"No advocate shall act for any person unless he/she has received instructions from the person or his or her authorized agent."

In the case of Okodoi George and Obwaret Vincent Vs Okello Opaire Sam HCMA No.0143 of 2016, it was held that the onus is on the Advocate so instructed to take steps to make it known to all the concerned that he/she has been duly instructed. The prudent advocate takes out a Notice of Instructions informing Court and opposite counsel of such instructions. I have observed a Notice of Instructions filed belatedly on 3^rd March, 2023. Again, this demonstrates the laxity of the Advocate concerned in respect of handling this matter seriously.

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From the forgoing, I am not persuaded that Counsel has instructions to represent the 4^th defendant. His prayers are therefore denied.

The 4^th Defendant has no Defence on record. There is an affidavit of service to confirm that he was served with the summons to file a defence. According to the process server Aguma Andrew, it was the 4^th Defendant who directed him to the home of the 1^st Defendant. The Defendant did not file a defence by choice. The Plaintiff is thus allowed to additionally proceed exparte against the 4^th Defendant.

I so order.

# JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI

Delivered on 19^th April, 2023.