[2025] UGHC 1

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

# MISC. APPLICATION NO.105 OF 2024

## (ARISING FROM CIVIL SUIT NO. 044 OF 2018)

## BUGISU MUSLIM DISTRICT COUNCIL::::::::::::::::::::::::::::::::::::

### **VERSUS**

### 1. MUSA KALOKOLA

### 2. YAHAYA MADOI

# 3. TWAIB BYANSI :::::::::::::::::::::::::::::::::::: BEFORE HON. JUSTICE LUBEGA FAROUQ

### **RULING**

### 1. Background

- 2. This application arises from civil Suit No. 044 of 2018, which the Respondents/Plaintiffs instituted against the Applicant/Defendant on the 18^th of October 2018 and the same was served on the Applicant on 31st of October 2018. Following that background, the Applicant filed its written statement of defence on the 8^th of November 2018. The Respondents further filed amended plaint dated 13^th of November 2018 and another one dated 10^th of December 2018 allegedly without leave of court. Hence, this application. - 3. This application was brought by way of Notice of Motion under section 37 of the Judicature Act Cap 16, section 98 of the Civil Procedure Act Cap 282, order 6 rule 29 & 30, Order 52 rules 1 and 3 of the Civil Procedure Rules for orders that- - a. Civil Suit No. 44 of 2018 be dismissed or struck out for being barred by law, frivolous, vexatious, does not disclose a cause of action against the Applicant; - b. The amended plaint in Civil Suit No. 044 of 2018 be struck out for having been filed without seeking leave of this court; and

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- c. Costs of the application and those of the main suit be provided for. - 4. This application was supported by the affidavit of Mr. Wanade Qassim Secretary of the Applicant and briefly averred that- - (a) The Respondents together with a one Hajji Muhammad Wamboya who is now deceased instituted Civil Suit No. 044 of 2018 against the Applicant; - (b) The Respondents have no locus and capacity to act on behalf of the late Haji Muhammed Majid Bagalaaliwo who was the rightful owner of the suit property; - (c) That Civil Suit No. 044 of 2018 is incompetent in so far as a wrong party has been sued and that the Respondents' claim is barred in law: - (d) The Respondents filed amended plaint in Civil Suit No. 044 of 2018 without seeking leave of court; - (e) That since 1992, the Applicant has been in possession and control of the suit property as a council coordinating and handling the affairs of Uganda Muslim Supreme Council in Mbale District; - (f) The Respondents have been instituting various suits over the same property which are not prosecuted to their conclusion; - (g) The Respondents do not have any cause of action against the Applicant; - (h) The plaintiff's amended plaint was filed without leave of court and its frivolous and vexatious; - (i) The Respondents do not have *locus standi* to institute the suit against the Applicant. - 5. This application was opposed by a joint affidavit in reply sworn by the 1^st Respondent and briefly averred that- - (a) He is authorized by the $2^{nd}$ and $3^{rd}$ Respondents to swear the joint affidavit in reply on their behalf; - (b) The application is a nullity, frivolous, abuse of court process and bad in law for reasons that the Applicant relied upon forged titles in

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the name of Uganda Muslim Supreme Council for Plots 6 and 8 Republic Street Mbale for the same properties, which were repossessed under the Expropriated Properties Act and the repossessors i.e. the Registered trustees of Khoja Shia Itnashire Jamat are holders of valid certificates of titles vide LRV 2678 Folio II and LRV 2678 Folio 10 and the repossession certificates have never been cancelled by court rendering the application an illegality;

- (c) That Haji Majid Mohammed Bagalaliwo is still alive and granted late Mohammed Wamboya and the powers of attorney to Respondents; - (d) The Respondents denied having filed the amended Plaint without leave of court as late Haji Mohammed Wamboya the 1^st Plaintiff orally applied for leave to file the amended Plaint, the same was lawfully received by the Deputy Registrar on 4^th January 2019 but the Applicant did not file the amended written statement of defence to oppose it and was served upon the Applicant without objection; - (e) The Applicant is responsible for trespassing on the suit-land despite the dismissal of High Court Civil Suit No.15 of 1992 between Uganda Muslim Supreme Council Vs Haji Mohammed Wamboya, Registered Trustees of Khoja Shia Itnashire Jamat and others which was dismissed in 2017 for being a nullity; - (f) The Respondents as members of Kibuli Muslim sect enjoyed a right in the suit-land after spending their money with Haji Majid Mohammed Bagalaaliwo from the time of purchasing the same from Mbale Municipal Council and continued to spend for the same cause of recovering the same from the Applicant's officials who forcefully trespassed upon it; - (g) It is premature to dismiss the suit before hearing it and adducing of evidence to ensure that their constitutional right to fair hearing is respected; - (h) The application is frivolous, vexatious, abuse of court process and an illegality for relying on fake titles. The notice of motion and

paragraphs 2 and 3 of the Applicant's affidavit in support are full of lies and misleading for reporting falsely that Haji Majid Mohammed Bagalaaliwo died whereas not.

- 6. The Applicant further filed an affidavit in rejoinder and averred that- - (a) He shall raise a preliminary objection that the Respondents' affidavit in reply was filed out of time without seeking leave of court. - (b) That after the expiry of the original lease in May 1972, the suitland reverted back to Mbale Municipal Council which granted a lease to the Applicant in 1991 and later on in 2017 the Applicant obtained a freehold certificate of title. If the Respondents were aggrieved, they would have sued Mbale District Land Board and the Commissioner Land Registration; - (c) No order was extracted in regards to the said amendment of the plaint; - the Respondents' (d) The Applicant did not trespass $on$ land/property since it was the lawful owner holding leasehold interests which was granted in 1991; - (e) The Respondents did not attach proof that the said property was purchased by Hajji Mohammed Bagalaaliwo under Kibuli Muslim sect; - (f) That much as there was no appeal, the interest of the Applicant was to be catered for in Civil Suit No. 28 of 2016 but the same was dismissed for want of prosecution; - (g) There was no leave of court sought by the Respondents to amend the plaint.

### 7. Legal representation

- 8. Counsel Iman Ali appeared for the Applicant while Counsel Wetete Ronald represented the Respondents. - 9. At the hearing of this application, both counsel for the Applicant and for the Respondents were given schedules to file their respective written submissions and they both complied.

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#### Preliminary objections. **10.**

- Before I delve into the merits of this application, I will first deal $11.$ with the preliminary objections raised by both parties. - The Applicant in its submissions raised two preliminary 12. objections for the determination of this court to wit - a. The Respondents filed a reply to the application out of time without *leave of court;* - b. That the Respondent's additional affidavit to the Applicant's *affidavit in rejoinder is disregarded.* - The 1^st preliminary objection by the Applicant 13. - Counsel for the Applicant submitted that the Notice of Motion $14.$ was served on the Respondent's advocate on 20^th of May 2024 but the reply was filed on the 4^th July 2024 and served on the Applicant on the $26^th$ of July 2024 out of the 15 days stipulated by the law. - Counsel argued that the Respondents did not seek leave of court 15. before filing the said affidavit out of the prescribed time thereby offending Order 8 rule 1(2) of the Civil Procedure Rules. He further cited section 2 of the Civil Procedure Act, which defines a suit. Following that definition, counsel submitted that, that provision shows that the laws, which govern filing of defence in civil suit also, govern the filing of affidavits since the notice of motion is also among the ways in which civil suit proceedings are commenced. - He cited URA V. Consolidated properties limited Civil Appeal 16. No .31 of 2000, where the Court of Appeal held that time limits set out by statute are matters of substantive law and not mere technicalities and thus must be strictly complied with. - Counsel submitted that the Respondents did not comply with the 17. time lines stipulated by the law. - He further cited Patrick Senyadwa and 8 others V. Lucy Nakito 18. Misc. Application No. 1103 of 2018, where Hon. Justice Kawesa held that- - "... a reply or defence to an application must be filed within $15$ 19. days' failure of which puts the affidavit in reply having been filed out of

time without leave of court, I have no option but to find that it is improperly before this court. I am unable to exercise the leniency sought by counsel for the respondent as such would encourage sloppy behaviour and noncompliance with court procedures. This is especially where no reason is furnished while the respondent did not exercise the option of seeking leave to file out of time. Consequently, I strike out the respondent's affidavit in reply."

#### Determination of court 20.

- I have perused Order 19 of the Civil Procedure Rules SI. 71-1 21. which provides for affidavits. However, what I can evidently note is that affidavits contain evidence on a matter before court or is another way through which evidence is adduced in court - I have further perused Order 52 rule 3 which provides that-22.

"Every notice of motion shall state in general the grounds of the application, and, where any motion is grounded on **evidence by affidavit,** a copy of any affidavit intended to be used shall be served with the notice of motion."

Order 52 rule 4 further states that-23.

> "If upon the hearing of any motion or other application, the court is of opinion that sufficient notice has not been given or that any person to whom notice has not been given ought to have had the notice, the court may either dismiss the motion or application or adjourn the hearing of it....."

From the above provisions, it is clear that the opposite party in a 24. matter, which is preceded by way of affidavit evidence, must be informed of the case against him or her. The provisions are however silent on the timelines within which the notice of motion is supposed to be served on the opposite party and the time for filing the affidavit in reply.

Counsel for the Applicant argued that the time-lines which apply 25. to filing of the written statement of defence under Order 8 rule 4 of the Civil Procedure Rules, also apply to filing of the affidavit in reply. With due respect, I did not agree with counsel.

- Whereas a written statement of defence establishes the 26. defendant's case, affidavits are used as one of the ways under which evidence is adduced in court, and that is why, where need be, such deponents upon application are subjected to cross-examination. - Ordinarily, evidence adduced is what assists the court to dispose 27. of or determine the dispute before it, which means if such evidence is locked out, courts would be in a dilemma or would not be in a position to reach a fair decision. This, in my view, explains why the provisions of the law above cited are silent on the timelines.

In Dr. Lam Lagoro James V. Muni University Miscellaneous 28. Civil Cause No. 0007 of 2016, Justice Mubiru Stephen at page 11 noted that-

> "...an affidavit in reply presents evidence on oath. Affidavits are a way of giving evidence to the court other than by giving oral evidence. They are intended to allow a case to run more quickly and efficiently as all parties know what evidence is before the court. Consequently, time constraints applied to defences may be misplaced when applied to affidavits.

> *Implied by this silence is that all affidavits in reply and other* pertinent documents attached as annexures should be filed before the hearing of the motion or summons in chambers. An affidavit in reply, being evidence rather than a pleading in stricto sensu, should be filed and served on the adverse party, within a reasonable time before the date fixed for hearing, time sufficient to allow that adverse party, a fair opportunity to respond..."

I agree with the reasoning of my brother judge. Time lines 29. governing written statements of defence cannot apply to affidavits since affidavits contain evidence rather than establishing a case or a fact like it is for written statements of defence.

Secondly, if such timelines were to apply to affidavits, the drafter 30. would have specifically provided for it within the law but he did not.

However, in the interest of justice, a reply to an affidavit should be filed within a reasonable period before the application is fixed for hearing.

- In the present case, counsel for the Applicant argued that the 31. notice of motion was served on the Respondents' advocate on the 20^th of May 2024, but the reply was filed on the 4^th July 2024 and served on the Applicant on the 26^th of July 2024. He however, did not attach an affidavit of service to prove that indeed the said motion was effected on the Respondents' advocate on the stated date. - Nevertheless, following my discussion above, the affidavit in reply 32. was in my view filed within a reasonable period before the application was fixed for hearing.

The 1^st preliminary objection is overruled 33.

The 2^nd Preliminary objection by the Applicant 34.

Counsel for the Applicant submitted that the Respondent was 35. served with the application and the affidavit in support of the application and they made a reply to the same and the Applicant rejoined their reply but the Respondents went ahead to file additional affidavit in reply to the rejoinder yet pleadings were closed after the Applicant had filed a rejoinder. He cited Order 8 rule 18 (4) of the Civil Procedure Rules and prayed that the same be disregarded.

#### **Determination of court** 36.

- Order 8 rule 18 (4) of the Civil Procedure Rules provides that-37. "As soon as any party has joined issue upon the preceding pleading of the opposite party without adding any further or other pleading to it, or has made default in pleading, the pleadings as between those parties shall be deemed to be closed, and all material statements of fact in the pleading last delivered shall be deemed to have been denied and put in issue." - The above provision of the law indicates that as soon as any party 38. re-joins the issue upon pleading of the opposite party without adding any further or other pleadings to it, the pleadings are deemed closed. This means, that provision applies to pleadings but not evidence. As already held above, affidavits contain evidence, which is used by court

to determine a matter before it, but they are not pleadings per se. Therefore, Order 8 rule 18 (4) as cited by counsel for the Applicant may not apply to matters proceeded by affidavit evidence.

- However, as a matter of procedure, after the Applicant had re-39. joined the Respondents' reply, tendering of evidence by both parties is presumed closed by court. Any further evidence adduced after that level is supposed to be with leave of court but the Respondents did not seek that permission before filing the alleged additional affidavit. - For that reason, the same is struck off the court record or 40. disregarded by this court. - The second preliminary objection is accordingly upheld. $41.$

Preliminary objection by the Respondents 42.

- The Respondents raised a preliminary objection to the effect that 43. this application is frivolous, vexatious for telling lies, improper and misleading that the Applicant is the owner of the suit-land. - In R V. Ajit Singh s/o Vir Singh (1957) EA 822, the term 44. frivolous was defined "as absence of seriousness or the lack of validity or legitimacy, and a frivolous pleading would be vexatious in that its effect would be counterproductive. Secondly, the case is also vexatious i.e. oppressive to the opposing party and it obstructs the court from gaining a full understanding of the issues and a party acts with an ulterior motive. The action is vexatious if the party bringing it is not acting bona fide and merely wishes to annoy or embarrass the opponent or when it is not calculated to lead to any practical results." - 45. The Black's Law Dictionary 8^th edition at page 629 further defines the term frivolous as "lacking legal basis or legal merit, not serious and not reasonably purposeful". It also defines vexatious "as a law suit instituted maliciously and without good cause". - In the instant application, the Applicant is seeking for orders that 46. Civil Suit No. 44 of 2018, Hajji Muhammad Wamboya & 3 others V, Bugisu Muslim District Council be dismissed or struck out for being barred by law, frivolous, vexatious, does not disclose a cause of action

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against the Applicant and that the amended plaint in Civil Suit No. 044 of 2018 be struck out for having been filed without seeking leave of this court.

- $47.$ On proper reading of the above prayers, they are all points of law, which cannot be considered frivolous or vexatious since the law allows any party to raise points of law, which may be set down for hearing and disposed of at any time before the hearing of the suit. (See: Order 6 rule 28 of the Civil Procedure Rules SI.71). - 48. This preliminary objection is overruled.

#### 49. Merits of the application

- Counsel for the Applicant framed two issues which have been 50. adopted by this court in the determination of this application to wit- - (a) Whether Civil Suit No.44 of 2018 is incompetent before this *court or not?* - (b) What remedies are available to the parties in the circumstances?

#### **Submissions** 51.

Issue No. 1: Whether Civil Suit No.44 of 2018 is incompetent 52. before this court or not?

#### 53. *Locus* standi

- 54. Counsel for the Applicant submitted that paragraph 16 of the affidavit in support, the applicant stated that the Respondents' suit is frivolous and vexatious and the Respondents do not have locus standi to institute it against the Applicant. - He argued that at the time of filing this case, the Respondents 55. filed Civil Suit No. 044 of 2018 in their individual capacity and not on behalf of Haji Muhammed Majid Bagalaliwo since the powers of attorney were given in 2020 yet the case was filed in 2018. - He cited Order 7 rule 14 of the Civil Procedure Rules and 56. Fakrudin Vallibhali Kapesh & Anor V. Kampala District Land Board **HCCS No. 570 of 2015** where it was held that Order 7 rule 14 (1) is

$10$ mandatory and failure to attach such authorization at the time renders the suit a nullity.

In the view of the above authority and others, counsel submitted 57. that the authority to institute proceedings on behalf of another, must precede the institution of the suit, hence the piece meal powers of attorney executed by the parties in 2020 yet the suit was filed in 2018 does not salvage Civil Suit No. 44 of 2018.

- Counsel for the Respondents on the other hand submitted that 58. Hajji Mohammed Bagalaaliwo having paid for the purchase of plot 6 and 8 Republic Street Mbale granted the first power of attorney to Hajji Muhhammad Wamboya, Hajati Sarah Nanziri Bagalaaliwo, Musa Kalokola, Madoi Nanswagi Yahaya and Twalib Byansi, Bashir Balozi and Farida Nabalozi Bagalaaliwo and it was registered on 15th of September, 2020 whereas the second power of attorney dated $22^nd$ of November, 2023 was granted to Bagalaaliwo Sarah Nanziri, Musa Kalokola, Madoi Nanswagi Yahaya, Twalib Byansi, Bashir Balozi and Bagalaaliwo Farida Marvel Nabalozi - He argued that the second power of attorney was granted after 59. the death of Haji Muhammad Wamboya

Suing a wrong party and thus the Respondents/Plaintiffs have no 60. cause of action against the Applicant/Defendant.

- Counsel for Applicant submitted that according to paragraph, 61. seven of the affidavit in support of the application the Respondents sued a wrong party and the main suit is incompetent. He contended that the Respondents sued Bugisu Muslim District Council yet the right party to sue would have been Uganda Muslim Supreme Council. - Counsel submitted that under paragraph 9 of the affidavit in 62. support of the application, the Applicant averred that Uganda Muslim Supreme Council is the owner of the suit property comprised in plots 6 and 8 on Republic Street Mbale City and the Plaintiffs do not have any interest whatsoever in the suit property whether by purchase or otherwise, and the Applicant attached a certificate of title as proof of ownership by Uganda Muslim Supreme Council.

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He referred to Order 7 rule 11 (e) of the Civil Procedure Rules and 63. the case of Tororo Cement Co. Ltd V. Frokina International Ltd S. C. Appeal No. 2 of 2001 and Court of Appeal of East Africa Auto Garage V. Motokov No. 3 of 1971] E. A 514 to support his submissions.

- Counsel for the Respondents on the other hand submitted that 64. the Respondents sued the right party but there is confusion as to whether the Applicant manages the suit property on behalf Uganda Muslim Supreme Council that it claims to be the legitimate owner. - He argued that the Plaint discloses a cause of action because the $65.$ Respondents recognize the lawful ownership of the suit land to be of the Registered Trustees of Khoja Shia Ithashire Jamat but the Applicant is fraudulently occupying the suit land as criminal trespassers without locus to collect rent. - Filing the amended Plaint in Civil Suit No. 44 of 2018 without 66. seeking Court's leave. - Counsel for the Applicant submitted that under paragraphs 5 67. and 6 of the Applicant's affidavit in support of the application, the Respondents amended and filed the plaint on the 10^th of December 2018 and served it on the applicant on the 10^th January 2019 without seeking court's leave.

Counsel cited Order 6 rule 19 and Order 6 rule 20 of the Civil 68. Procedure Rules to support his submissions. Rule 20 provides that a plaintiff may amend the plaint without leave of court at any time within 21 days from the date of issuance of summons to the defendant.

- In the view of the above provision, counsel submitted that under 69. paragraph 5 of the affidavit in support of the application, the Applicant stated that the Respondents filed the original plaint and the Applicant filed his written statement of defence on 8^th of November, 2018 but later, the Respondents filed the amended plaint on 10^th December, 2018 without leave of court. - Counsel contended that the foregoing clearly demonstrates that 70. the amended plaint was filed beyond the 21-days period prescribed by law, within which leave is not required to file an amended plaint. This,

according to counsel, constitutes a violation of Order 6 Rule 20 of the Civil Procedure Rules.

Counsel for the Respondents however submitted that late Hajji 71. Muhammad Wamboya appeared before Her Lordship Okalany and orally applied for the amendment of the plaint and her Lordship allowed him to file the amended plaint. Unfortunately, Late Hajji Muhammad Wamboya died and there is not much to add to that information. He contended that the amended plaint was lawfully filed.

## 72. **Analysis of court**

## Issue No. 1: Whether Civil Suit No.44 of 2018 is incompetent 73. before this court or not?

In the determination of this issue, Counsel for the Applicant 74. divided it into three subheadings as above indicated. I will follow the same modus-paradise for proper determination of the question in dispute.

## Whether the Plaintiffs/Respondents in Civil Suit No. 044 of 2018 75. had locus standi to institute that suit or not?

- The Applicant averred under paragraph 3 of the affidavit in 76. support that the Respondents do not have any individual right in the suit property neither do they have the mandate to represent the estate of late Haji Muhammed Majid Bagalaaliwo whom they claim to be the owner of the suit property. - The Applicant further averred under paragraph 16 of the affidavit 77. in support that the Respondents' suit is frivolous and vexatious and the Respondents do not have locus standi to institute Civil Suit No. 044 of 2018 against the Applicants. - The Respondents on the other hand averred under paragraph 5 78. of the affidavit in support that Hajji Majid Mohammed Bagalaliwo who is still alive granted power of attorney to late Mohammed Wamboya and all of them. - Counsel for Applicant submitted that at the time of filing this 79. case, the Respondents filed Civil Suit No. 044 of 2018 in their individual

capacity and not on behalf of Haji Muhammed Majid Bagalaliwo since the powers of attorney were given in 2020 yet the case was filed in 2018.

In Dima Domnic Poro V. Inyani Godfrey and Anor HC. C. A No. 80. 17 of 2016, Justice Stephen Mubiru stated that-

> "...the issue of locus standi is a pure point of law that can properly be raised as a preliminary objection and in determining such a point, court is perfectly entitled to look at *the pleadings and the other relevant matter in its records."*

He added that-81.

> "for any person to otherwise have a locus standi, such a person must have sufficient interest in respect to the subject matter of the suit which is constituted by having an adequate interest not merely a technical one in the subject matter of the suit. The interest must not be too remote, must be actual, not abstract or academic and the interest must be current not hypothetical."

- Following the reasoning of my brother judge, which I am in 82. agreement with, it is apparent that for one to institute any suit, he or she must have interest in the subject matter. - In the instant case, the Respondents under paragraph 4 (i to vi) 83. of the amended plaint averred as follows-

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"The plaintiffs jointly and severally are Muslims and members of Kibuli Muslim Sect of Mbale. Plot Nos. 6 and 8 Republic Street Mbale reverted to Mbale Municipal Council in 1972 after the expiry of the leases, so the Expropriated Properties Act did not affect the suit land. In about 1991, Mbale Municipal Council advertised the two plots for sale but at that time, Uganda Muslim Supreme Council did not have money. The Chief Kadhi of Uganda Muslim Supreme Council, Sheikh Rajab Hussein Kakooza wrote a letter to Muslims in Uganda for the money for the purchase of the two plots. One member of Kibuli Muslim Sect called Hajji Mohammed Majid

Bagalaaliwo paid Ugx: $10,000,000/$ = for plot 8 and Ugx: 7,000,000/= for plot 6 Republic Street Mbale on condition that the Mosque's name be made in memory of his mother which was not complied with to date. That Hajji Hudu Madanda was given the responsibility by Kibuli Muslim Sect of Mbale to which the Plaintiffs belong, to receive all the money for the purchase of the said plots from Hajji Mohammed Majid Bagalaaliwo at Kampala and to deliver the documents after the payments to the plaintiffs and members of Kibuli Muslim Sect of Mbale but he fraudulently *gave the documents to the defendant officials.*"

- From the above averments, it is clear that the land in dispute was 84. allegedly purchased by Hajji Mohammed Majid Bagalaaliwo on behalf of Kibuli Muslim Sect. - I have gone through the amended plaint dated 13^th November 85. 2018 and another, dated 10^th of December 2018, but I have not found any document authorizing the Respondents to institute Civil Suit No. 044 of 2018 on behalf of Hajji Mohammed Majid Bagalaaliwo or Kibuli Muslim Sect. - The Respondents however, in the instant application, attached 86. two copies of the alleged powers of attorney, which were granted to them by Hajji Mohammed Majid Bagalaaliwo. The said powers of attorney are dated 15^th of September 2020 and another dated 22^nd of November 2023 the dates of their registration. This means that, at the time of instituting Civil Suit No. 044 of 2018, the Respondents did not have any authority from Hajji Mohammed Majid Bagalaaliwo to institute the said suit. This is so because the said suit was instituted in 2018 and the powers of attorney were granted in 2020 and 2023 respectively. Hence, the Respondents did not have any interest or locus standi at the point of instituting Civil Suit No. 044 of 2018.

Secondly, Order 7 rule 14 of the Civil Procedure Rules provides 87. that-

"Where a plaintiff sues upon a document in his or her possession or power, he or she shall produce it in court when the plaint is presented, and shall at the same time deliver the document or a copy of it to be filed with the plaint."

That provision of the law is coached in mandatory terms. 88. Therefore, failure to attach a document that is in one's possession at the point of institution of a suit is fatal and it goes to the root of the subject matter.

- In this case, the power of attorney is a document, which gave the 89. Respondents mandate to institute Civil Suit No. 044 of 2018; failure to attach the same at the point of institution of the suit was fatal. Hence, the Respondents/plaintiffs lacked *locus standi* to institute the said suit. - In Mumya Paul V. Mukwana Eliud and 33 others, Mic. 90. Application No. 255 of 2023, court rejected a plaint and stated that "failure to attach evidence of the authority conferring power to sue upon a person purporting to sue for and on behalf of the plaintiffs is prejudicial to the defendant and negates such plaintiff's locus stand." - In the view of the above analysis therefore, I am inclined to find 91. that the Respondents did not have locus standi to institute Civil Suit No. 044 in 2018. - Whether the Respondents/plaintiffs sued a wrong party and thus 92. have no cause of action against the Applicant/Defendant. - The Applicant averred under paragraphs 7, 8, and 9 that the 93. Respondents sued a wrong party and the main suit is incompetent. That the Applicant since 1992 and for over 25 years has been and currently in possession and control of the suit property as a council coordinating and handling the affairs of Uganda Muslim District Council in Mbale. It added that Uganda Muslim Supreme Council is the owner of the suit property comprised in Plots Nos 6 and 8 Republic Street Mbale Municipality and the plaintiffs do not have any interest in the said property since they have never acquired the suit property whether by purchase or otherwise.

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- The Respondents on the other hand averred under paragraphs 9 94. and 10 of the affidavit in reply that the Applicant is responsible for trespassing on the suit land. They further averred under paragraph 14 that the Applicant is liable for continuing to occupy and illegally collecting rent from the suit land, which was purchased by Hajji Majid Mohammed Bagalaaliwo who authorized them to represent him and work with him. - Counsel for the Applicant submitted that the Respondents sued 95. Bugisu Muslim District Council yet the right party to sue would have been Uganda Muslim Supreme Council. - Order 7 rule 11 (a) of the Civil Procedure Rules provides that-96. "A Plaint shall be rejected where it does not disclose a cause *of action against the Applicant.*" - In Tororo Cement Co Ltd V. Frokina International Ltd Civil 97. Appeal No. 2 of 2001 (S. C), a cause of action was defined to mean-"every fact which is material to be proved to enable the plaintiff to succeed or every fact which, if denied, the plaintiff must prove in order to *obtain judgment".* - In Auto Garage V. Motokov No. 3 of [1971] E. A 514, the Court 98. of Appeal of East Africa stated that- "The Plaintiff must show that the Plaintiff enjoyed a right, that the right has been violated and that the *defendant is liable."* - It is however pertinent to note that when establishing whether a 99. cause of action exists or not, court looks at the Plaint and the annexures attached thereto and nothing more. - According to paragraph 4 of the amended Plaint, the Respondents 100. jointly and severally instituted Civil Suit No. 044 of 2018 as Muslims and members of Kibuli Muslim Sect of Mbale. - They averred under paragraph 4 (vi and viii) of the Plaint that-101. "Hajji Hudu Madanda was given the responsibility by Kibuli Muslim Sect of Mbale to which the Plaintiffs belong, to receive all the money for the purchase of the said plots from Hajji Mohammed Majid Bagalaaliwo at

Kampala and to deliver the documents after the payments by the plaintiffs and members of Kibuli Muslim Sect of Mbale, but he fraudulently gave the documents to the defendant officials, and without any colour of right, the Defendant/ Applicant fraudulently occupied and collected rent from the building at Plot Nos. 6 and 8 Republic Street Mbale from 1992 to-date and got titles."

- 102. The Respondents attached annexure "A" to the Plaint, which is a letter dated 18^th of January, 1991 written by Uganda Muslim Supreme Council to Mbale Municipality. In that letter, Uganda Muslim Supreme Council was complimenting Mbale Municipality that after a long negotiation, finally the Municipality decided to sell Plots 6 and 8 to Uganda Muslim Supreme Council valued at Ugx: $7,000,000/$ = and Ugx: $10,000,000/$ = respectively. - Another relevant annexure to the Plaint is annexure "F" which is $103.$ a letter dated 17^th of February 2000 written by Uganda Muslim Supreme Council to the Commissioner Land Registration. In that letter, paragraphs 3 and 4 states that- "This is therefore to inform you that the above properties were legally and officially purchased by the Muslim Community of Mbale on behalf of the Uganda Muslim Supreme **Council.** Please further note that Uganda Muslim Supreme Council has reached an understanding with the Muslim Community of Mbale and have agreed to have the letter effectively manage these properties and *renew the leases in the due course."* - The above annexures indicate that the land in dispute was sold 104. to Uganda Muslim Supreme Council by Mbale Municipality. The Respondents did not attach any document or averment to show that the Applicant is the owner of the land in dispute. However, the annexures attached as quoted above, indicate that Uganda Muslim Supreme Council purchased the suit land. Hence, the Respondents sued a wrong party. - Having sued a wrong party, it follows therefore that the 105. Respondents plaint does not disclose a cause of action against the Applicant.

- Considering my findings above, I will not delve into the 106. determination of the issue of whether the Respondents' amended Plaint was filed with or without leave of court, since the two points of law above resolved, are capable of disposing of the entire application. - Therefore, following Order 6 Rule 30(1) of the Civil Procedure 107. Rules, the Respondent's plaint in Civil Suit No. 044 of 2018 is hereby declared incompetent and struck out on grounds that it failed to disclose a cause of action and that the Respondents lacked locus standi to institute the said suit. - <u>Issue No.1 is answered in the affirmative.</u> 108. - Issue No.2: What are the remedies available to the parties? 109. - In light of the analysis in the body of this ruling, this application $110.$ accordingly succeeds in the terms below- - (a) It is declared that the Respondents did not have locus standi to institute Civil Suit No. 044 of 2018. - (b) The amended and original plaints for Civil Suit No. 044 of 2018 are struck out for failure to disclose a cause of action against the Applicant. - (c) Costs of this application and those of Civil Suit No. 044 of 2018 are awarded to the Applicant

I so order.

**LUBEGA FAROUO** Ag. JUDGE

Ruling delivered via the emails of the Advocates of the parties on $8^{th}$ day of January 2025