[2023] UGHCCD 297
The court held that the Plaintiff's prayer to require the donor of the Powers of Attorney to appear in court was unfounded, as the Plaintiff had already sued the First Defendant and should have verified his existence prior to instituting the suit. The issue of the First Defendant's existence was not raised during...
Source-derived case information.
- Citation
- [2023] UGHCCD 297
- Parties
- Plaintiff: Departed Asians Property Custodian Board; Defendant: Prabhudas Damodar Kotecho; Defendant: Arvind Jerambhai Kotecha
- Court
- HC: Civil Division (Uganda)
- Jurisdiction
- Uganda
- Case Number
- Civil Suit 56 of 2014
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection Regarding Validity of Powers of Attorney and Existence of First Defendant
- Outcome
- plaintiff's prayer dismissed
- Judges
- Bukirwa, J
- Legal Topics
- Powers of Attorney, Party Existence, Admissibility of Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Departed Asians Property Custodian Board
Plaintiff
Prabhudas Damodar Kotecho
Defendant
Arvind Jerambhai Kotecha
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection Regarding Validity of Powers of Attorney and Existence of First Defendant
Legal Issues
- 1 Whether the donor of the Powers of Attorney (the First Defendant) must appear in court to establish his existence before the Defendant opens his case.
- 2 Whether the Powers of Attorney presented are valid and can be relied upon by the Defendant to present his witness.
- 3 Whether the Plaintiff's prayer to require the donor's appearance is procedurally proper.
Ratio Decidendi
The court held that the Plaintiff's prayer to require the donor of the Powers of Attorney to appear in court was unfounded, as the Plaintiff had already sued the First Defendant and should have verified his existence prior to instituting the suit. The issue of the First Defendant's existence was not raised during the Plaintiff's evidence, and the Powers of Attorney were admitted as exhibits without objection. Unless evidence is adduced to the contrary, the First Defendant is presumed alive, and the Powers of Attorney remain valid until revoked or upon the donor's death. The Defendant is entitled to present his lawful attorney as a witness. The Plaintiff's prayer was therefore dismissed.
Court Disposition
plaintiff's prayer dismissed
Orders
- The Plaintiff's prayer for the appearance of the donor of the Powers of Attorney is denied.
- The Defendant may present the witness who is the lawful attorney, Mr. Vijay Amritlal Kotecha.
Full Case Text
Judgment text and source record
21 paragraphs
### THE REPUBLIC OF UGANDA
# IN THE HIGH COURT OF UGANDA AT JINJA
### **CIVIL SUIT NO. 056 0F 2014**
# DEPARTED ASIANS PROPERTY CUSTODIAN BOARD ...: PLAINTIFF
#### **VERSUS**
### 1. PRABHUDAS DAMODAR KOTECHO 2. ARVIND JERAMBHAI KOTECHA
-DEFENDANTS
# BEFORE HON. LADY JUSTICE FARIDAH SHAMILAH BUKIRWA **NTAMBI**
#### **RULING**
When the matter came up for hearing on 25<sup>th</sup> January 2023, Mr. Hillary Ebila representing the Attorney General, the Plaintiff in this matter, prayed that before the Defendant opens his case, the Donor of the Powers of Attorney specifically the 1<sup>st</sup> Defendant should appear in Court to determine whether he is alive or not. Mr. Ebila argued that the appearance of the Donor of the Powers of Attorney would assist Court to determine the validity of the Powers of Attorney and whether the Defendant can present the witness who is the lawful attorney of the Defendants, namely Mr. Vijay Amritlal Kotecha.
Counsel for the Defendants, Mr. Daniel Mudhumbusi objected to the procedure adopted by the Plaintiff's Counsel. He argued that the Plaintiff has no right to call the donor since he is not a witness in this case.
I find the Plaintiff's prayer ridiculous since he is the one who sued the First Defendant who is the donor of the Powers of Attorney. The Plaintiff should have ascertained the existence of the 1<sup>st</sup> Defendant before instituting this suit. The Plaintiff should be cautious with the manner in which he is proceeding with this case since Courts have struck out Plaints where the Defendant is dead or nonexistent (See The Trustees of Rubaga Miracle Centre Vs Mulangila Ssimbwa MA 576 of 2006)
It is foolhardy for the Plaintiff to sue the First Defendant, proceed with leading his evidence and after closing his case, he now turns round to question the existence of the First Defendant, a party that he sued. Worth noting is that this issue of the existence of the First Defendant never arose when the Plaintiff was leading his evidence. Surprisingly, the impugned Powers of Attorney were
$4.06.201$
produced and admitted as both the Plaintiff's and the Defendant's exhibits without any objection. Nevertheless, the Plaintiff can examine the Defendant's witnesses during their testimony to ascertain whether the First Defendant is dead or alive.
It is my considered opinion that unless evidence is adduced to the contrary, the First Defendant is alive.
Be that as it may, although the Plaintiff wants to determine the validity of the Powers of Attorney, once Powers of Attorney are duly executed, they remain valid until they are revoked by the donor or upon the donor's death. There is nothing on record to suggest that the Powers of Attorney were revoked by the Donor or that the Donor is dead.
I find no issue in the Defendant presenting the witness who is the lawful attorney Mr. Vijay Amritlal Kotecha.
The Plaintiff's prayer thus fails.
I so order.
JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI Ruling delivered in Court on 14<sup>th</sup> June, 2023