[1996] UGHC 60

# THE REPUBLIC OF UGANDA.

### IN THE HIGH COURT OF UGANDA AT KAMPALA

| CIVIL SUIT NO.598 OF 1996. | | | | |----------------------------|--|--|--| | | | | |

$\overline{5}$

| $1.$<br>$2.$ | LADY KEZIA RUKIIDI<br>FRANCIS MUGENYI | | PLAINTIFFS | | |--------------|---------------------------------------|--------|------------|--| | | | VERSUS | | | | 1. | KATURAMU JOHN | | | | | 2. | CANON RABVONI JAMES | $$ | DEFENDANTS | | | 3. | MSGR. KISLMBO THOMAS | | 10 | | | | | | | |

The Hon. Lady Justice L. E. M. Mukasa-Kikonyogo-

### $R U L I N G:$

Before:

Lady Kezia Rukiidi hereinafter to be called the lst 15 Plaintiff is the mother of the late Omukama (King) Patriol: David Mathew Kaboyo Olimi VII of Toro, and, therefore, the Nyinenkuru Omukama. Francis Mugenyi hereinafter to be called the 2nd Plaintiff is the Secretary to the Orukurato of Toro. The plaintiffs brought this suit against Katuramu John. 20 Canon Rwaboll Jamos and Msgr. Thomas Kisembo, the Recourts to Toro Kingdom, hereinafter to be referred to as the 1st, 2nd and 3rd defendants. The plaintiffs are firstly seeking a declaration that:

- $(a)$ The defendants are not lawful Regents to the Toro $25$ Kingdom under the customs and traditions of the Toro Kingdom. - The Omukuza named by the late Omukama of Toro, Patrick $(b)$ David Mathew Kaboyo Olini VII of Toro be the person to take charge of the Royal House-hold in consultation with the Confidential Council (Omubanana) until Omukama is able to do so.

Secondly that:

ii. a temporary and permanent injunction be issued to restrain the defendants whether themselves or through their agents from performing the cultural functions performable by $\frac{1}{2}$ the Omukama of Toro. $35$

It was indicated in the written statements of defence of the three defendants that they intended to raise preliminary 5 objections at the hearing of the suit. Hence, when the matter was placed before this court for hearing on 4th November, 1996, their four learned counsel, namely Mr. Ndozireho, Mr. Mugamba, Mr. Winyi and Mr. Kahito intimated to court that they wanted those issues tried separetely before 10 the hearing of the suit. Dr. Joseph Byamugisha, the Isamed counsel representing both plaintiffs, did not indicate to the court that he had any objection or any complaint about the procedure adopted. The court took it that he had consented since he already had notice and all the learned 75 counsel for both sides were seen talking together before the court started.

It was the contention of the four learned counsel for the defendants that the plaint was bad in. law, because it disclosed no reasonable cause of action against the three 20 defendants. They heavily relied on the case of Auto Garage and others Vs. Motokov (No. 3 1971 EA LR. 514). Mr. Mugamba, the learned counsel, who, particularly represented the 1st defendant argued that the plaintiffs did not in their pleadings show that the three essential elements to $25$ support a cause of action existed. It was not shown against his client that the plaintiffs enjoyed a right which had been violated by 1st defendant or the other two defendants. The 1st defendant like the other two was elected to the office of the Regent by the Orukuracto. He pointed out that the first 30 plaintiff had no locus standi because she was not a member of the Orukuraato to which the 2nd plaintiff is Secretary.. If there was anybody to blame for the imagined violation of the plaintiff's right certainly it was not the 1st defendant but perhaps some other person. $\ldots/3$ 35

Mr. Winyi, the learned counsel for the 2nd defendant, associating himself with the submissions of Mr. Mugamba said 5 that they were applicable to his client in entirety. He pointed out that the plaintiffs did not state their interest or injury resulting from the alleged violation to justify From the pleadings the injured party **bb**inging this suit. does not seem to be the plaintiffs or any one of them but 10 apparently one Prince Jimmy Mugenyi. It was the defendant's contention that the plaintiffs were too remote to the suit. They had no right to sue on behalf of Prince Jimmy Mugenyi. Mr. Winyi submitted that the suit was brought by the wrong party and, hence, was misconceived. His client the $2nd$ 15 defendant like the 1st was elected as Regent of Toro Kingdom by the Supreme Council of Toro Kingdom that is "Orukuraato" or "Omubanana". The Supreme Council, was, hence, the right party to be sued but not the 2nd defendant.

Mr. Kabiito, learned counsel particularly re-presenting $20$ the 3rd defendant, also associated himself with all the submissions of his two learned counsel for the 1st and 2nd defendants. He stated that what they said entirely, applied to his client. He invited the court to consider $0.1$ rule 10 (2) of The Civil Procedure Rules which gives $25$ the court powers to strike out a wrong party and instead substitute it with the right one. As far as he was concerned the 3rd defendant should not have been sued at all in his personal capacity as a Regent. The three defendants were nominated and elected by an institution which is in exist-30 ence and hence should have been the right defendant. In support of his submission of no cause of action, Mr. Kabiito further cited the case of S. S. Gupta Vs. Inder Sing Bhama 1965 EX. 439. Mr. Kabiito further contended that the declaration sought was also misconceived and it actually 35 refers to an un-named aggrieved party who should have been

the right person to sue. The plaint was bad in law and did net disclose a cause of action. The plaintiffs were not recognised agents under Order 3 of The Civil Procedure Rules $In$ to bring this claim on behalf of Prince Jimmy Mugenyi. the terms ¹ 7 rule 11 of The Civil Procedure Rules the word "shall" made it mandatory on the part of the court to reject the plaint.

10 Mr. Ndozireho who generally represented the three defendants entirely associated himself with the munissions of the three learned counsel for each of the defendants. He also argued that since Prince Jimmy Mugenyi was the aggrieved party as he should be playing the role played by the defendant. 15 he was a necessary party to sue and the right party to be sued should have been the "Orukuraato". In agreement with his learned counsel he submitted that the plaint was incurably defective and should be struck out. In the alternative if it was held that there was a cause of action then all the parties 20 should be struck out and substituted with the proper ones. In reply Dr. Byamugisha, learned counsel for the plaintiffs. argued that the applications by the defendants were improperly broght under 0 7 rule 11 of Civil Procedure Rules. This is because no summons were taken out as required by the law. Another order relied on was 0 6 rule 29 of the Civil Procedure 25 Rules but again there was non compliance with rule 30 of Order 6 of CPR. The application should have been broght by way of notice of motion and the opposite party should have been served which $\verb!that!$ The same order states/the notice of motion should was not done. state the grounds and if grounded on evidence it should be 30 supported by afficavits. Dr. Byamugisha's observation was that the application was badly argued because there was no evidence in support of the defendants' contentions. Pleadings are not evidence. He referred the court to paragraph $8(a)$ , (b) & (c)

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of the plaint which make assertions which show that the plaintiffs have an interest and that the defendants are in-5 dividually liable. The assertions should have been controverted by evidence in form of affidavits. Dr. Byamugisha argued that clearly from the pleadings in the written statements of defence, the defendants joined issues with the plaintiffs. They cannot then turn round and say that the plaintiffs have $10$ no locus standi. The plaintiffs were only challenged to strictly prove their claims.

As regards to the cause of action the court had to restrict itself to what is in the pleadings. Once that was He also complains $\hat{q}_5$ done the plaint disclosed a cause of action. that the preliminary points of law were heard at the beginning of the trial without his consent because the proper procedure was not followed. He, therefore, moved the court to decide them in compliance with the correct procedure. Relying on Article 37 of the Constitution he further submitted that his 20 clients had a right to belong, enjoy, practice and promote their culture and cultural institutions. As Batoro people that right was enforceable under Article 50 (1) of The Constitution His clients, hence, had a constitutional right and of Uganda. having satisfied the provisions of 0 7 rule 1 of CPR. they had 25 locus standi to bring this action. He asked the court to dismiss the preliminary objections with costs.

In the alternative Dr. Byamugisha asked this court to invoke the provisions of $0.1$ rule 10 (1) and 2 of the Civil Procedure Rules and Article 12C(2) (e) of The 1995 Constitution 30 of Uganda to save the situation by substituting the proper parties to the suit.

I heard the submissions of the four learned counsel for the defendants and Dr. Byamugisha for the plaintiffs.

This court has two main issues to determine and one minor 35 one touching on the procedure which has already been commented $.../6$ upon.

For convenience I ed about. ⁵ case The courts of law cannot sanction what is apparently illegal, -jq Hence, under its inherent powers it has a duty to strike out incurably defective pleadings even where they are not brought before it under the laid down procedure. vdll start with thc^question of procedure, adopted by this court which Dr. Byamugisha complainlam in complete agreement with the holding of my learned sister Hon. Lady justice C. Byamugisha in the of H. M. B^Kayondo Vs. Attorney General..(1988 — 9Q) HCB 127• In this application non-compliance with the procedure complained of by Dr. Byamugisha was not detrimental to the application.

However, in the instant case the learned counsel for the plaintiffs has no time to complain about the failure to serve 15 him. The defendants' intention to raise these preliminary issues at the trial was indicated in each of the three written statements of defence. therefore, as submitted by on procedure applicable in this matter. He was, Mr. Mugamba, not taken by surprise. That then takes care of Dr- Byamugisha's complaint about non-compliance with the

The remaining firstly whether the plaintiffs have a cause of action and secondly locus standi. issues for this court to decide are

As it was rightly submitted by the learned counsel for ²⁵ the defendants to support a cause of action the pleadings in the plaint must show that the plaintiffs has a right which entitles him to the legal redress being sought for.

case of Kaypndo. Vs. Further as it was observed by the learned Judge in the Attorney general Supra, before striking out30 the plaint the court must be satisfied that the case which is presented to it is unmaintanable and unarguable.

1995 institutions of the Batoro people. Clearly from the arguements advanced by Dr. Byamugisha the plaintiffs have a constitutional right under Article ³⁷ of constitution to promote culture or the cultural

'i

I

Further the 1st plaintiff is the mother of the late King of Toro Patrick Revid Mathew Kaboyo Olimi VII of Tore whose wish was apparently disregarded by the "Orukuraato" when it elected the defendants as Regents of Toro. As the Nyinenkuru Omukama she would want to see the right person put in charge of the Royal Family and that the cultural functions of the Toro Kingdom are performed by the right people. She has an interest.

As regards the 2nd plaintiff as a Mutooro and with that high office he holds he also has a similar right. I would accept Dr. Byamugisha's submissions that estoppel would have to be proved to justify, striking out his name as one of the plaintiffs. Evidence would be required for the court to **†5** determine the role he played in the elections of the defendants as Regents by the "Orukuraato." In my view he also has an interest in the matter.

Further as it was indicated by the pleadinge the person named by the late King of Toro, Patrick Kaboyo as the "Omulazado was Prince Jimmy Mugenyi. For reasons hard to understand the said Jimmy Mugenyi •pted not to sue or was never joined as a plaintiff. It is not indicated in the plaint that the plaintiffs filed this suit as his agents as provided under 0.3 of The Civil Procedure Rules. As apparently it was 25 agreed by counsel on both sides he is an aggrieved too and definitely should have been the plaintiff or at least one of them.

That notwithstanding, the mere fact that the said Jimmy Mugenyi ought to have been a party to the suit does not stop the plaintifis from enforcing their constitutional rights, through a court action as they did. As Batoro people and in fact elders they were aggrieved by the election of the three defendants as Regents of Toro Kingdom which role should have been played by Prince Jimmy Mugenyi chosen by the late Omukama35 $\cdot \cdot \cdot /8$

of Toro Patrick Kaboyo to take charge of the Royal Family and the Royal House hold in consultation with the Confidential Council (Omubanana) until the Omukama is able to do so.

**t** 8

sued. It is not disputed by the plaintiffs that the defendants were nominated and elected by the Orukuraato. on record to show that they were individually liable for the violation of the plaintiffs' rights. defence counsel is in existence. the orukuraato ¹⁵ individual capacities. or its legal representative would be the right person to bo sued and not the Regents in their Unfortunately as it was rightly submitted by their learned counsel the three defendants were not the right people to be Liability lies squarely at the door of the Orukuraato which as submitted by the learned There is nothing It follows, therefore, that

As the record stands before court the plaintiffs have a the council of Toro. **20** be added as but strike out the names of ''Orukuraato" or 25 its Representative. reasonable cause of action but not against the defendants' but Supreme Both plaintiffs are ordered to pay costs to the three defendants who were unjustifiably dragged into court. In the premises this court would exercise ite powers under *Q\_* \_1 rule ¹⁰ C2) .of The . Sivil Procedure Rules and hereby order that prince Jimmy Mugenyi plaintiff to the suit, the three defendants who apparently had been improperly sued and their names be substituted with either the

serve the proper defendants with the amended pl aint. Further the plaintiffs are given 14 days hereof to

³ L. E. M. Mukas a-Kikonyogo J ^U ^B ^G 3. 5.11.96

**5**

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

# CIVIL SUIT NO. 598 OF 1996

| LADY KEZIA RUKIIDI<br><pre>2. FRANCIS MUGENYI } PLAINTIFFS</pre> | | | | | |-------------------------------------------------------------------------------------------------------------|--|--|--|--| | - versus - | | | | | | 1. KATURAMU JOHN }<br><pre>2. CANON RWABON JAMES } DEFENDANTS</pre><br><pre>3. MGR. KISEMBO THOMAS }</pre> | | | | |

### O R D E R

These preliminary objections coming for final disposal before the Honourable Lady Justice L. E. M. Mukasa-Kikonyogo this 5th day of November, 1996 and after<br>hearing Mr. Mugamba for 1st defendant, Mr. Winyi for 2nd<br>defendant, Mr. Kabiito for the 3rd defendant and Mr.<br>Ndozireho for all the defendants and Dr. Byamugisha fo the plaintiffs it is ordered that:

- a) Prince Jimmy Mugenyi be added as plaintiff to the suit. - b) the three defendants were improperly sued and should be struck out of the suit and their names should be<br>substituted with either the "Orukurato" or its representative. - c) both plaintiffs do pay costs to the three defendants

GIVEN under my hand and the seal of this court this $, 1996.$ day of $\mathcal{N}$

**İSTRA**

WE APPROVE

COUNSEL NOR THE DEFENDANTS

DRAWN & FILED by: $\frac{b}{b}$

BYAMUGISHA & RWAHERU ADVOCATES, P. O. BOX 9400, KAMPALA


### THE REPUBLIC OF UGANDA

#### IN THE HIGH COURT OF UGANDA AT KAMPALA

# CIVIL SUIT NO. 598 OF 1996

| 1. LADY KEZIA RUKIIDI )<br><pre>2. FRANCIS MUGENYI } PLAINTIFFS</pre> | | | | | |--------------------------------------------------------------------------------------------------|--|--|--|--| | $-$ versus $-$ | | | | | | 1. KATURAMU JOHN )<br><pre>2. CANON RWABON JAMES } DEFENDANTS</pre><br>3. MGR. KISEMBO THOMAS ) | | | | |

# ORDER

This application coming for final disposal this 5th<br>day of November, 1996 before the Honourable Lady Justice<br>L. E. M. Mukasa-Kikonyogo and after hearing Dr. Byamugisha<br>for the plaintiffs and Mr. Ndozireho for the defendants<br> leave to appeal to the court of Appeal of Uganda.

GIVEN under my hand and the Seal of this Court this $\int$ day of $\mathcal{N}$ , 1996.

EGISTRAR

WE APPROVE

FOR THE DEFENDANTS **COUNSEL**

DRAWN & FILED by:

BYAMUGISHA & RWAHERU ADVOCATES, P. O. BOX 9400, KAMPALA.