[2025] UGHCCD 80

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPAI-A (CIVIL DIVISION) MISCELLANEOUS APPLICATION NO.779 OF 2024 (ARISING OUT OF CIVIL SUIT NO.0271 OF 2024) LANDMARK JUNIOR SCHOOL LTD ::::::::::::::::::::APPLICANT**

## **VERSUS**

# **NGONA SHAIDI SHAIDO::::::::::::::::::::::::::::: RESPONDENT**

## **BEFORE HON JUSTICE BONNY ISAAC TEKO**

#### **RULING**

This is an application brought by Chamber Summons under Section 98 Civil Procedure Act and Order 7 rules 11 and 19 of the Civil Procedure Rules. (Statutory Instrument 71-1)

#### **Brief Background**

The brief grounds relevant to this Application are laid down in paragraphs (a) to (d) of the Chamber Summons and are elaborated on in the Applicant's Affidavit in support of Chamber Summons.

A summary of the grounds of the Application are that:

a) The Respondent filed Civil Suit No. 0271 of 2024 against the

Management Committee of Landmark Junior School.


- b) The Management Committee of Landmark Junior School is a nonexistent Person with no capacity to sue or be sued. - c) The Plaint in Civil Suit No. 0271 of 2024 is improper and should be rejected. - d) Civil Suit No. 0271 of 2024 is therefore incompetent and should be dismissed with costs.

## **Representation**

The applicant is represented by **Sempaala and Co Advocates** while the Respondent is represented by **Adalci Advocates.**

#### **Issue.**

*The issue is whether the Management Committee of Landmark Junior is an existent person able to sue or be sued?*

# **Preliminary Objection/Applicants Submissions.**

The Applicant raised a preliminary objection on a point of law on the ground that the Respondent sued a non-existent party.

The Applicant submitted that the position of the law with respect to suing a non- existent legal person was succinctly discussed in **HCMA No. 576 of 2006 Murangira Ssimbwa v. The Board of Trustees Miracle Center & Anor**, where the **Justice Remmy K. Kasule** cited with approval the decision in **The Fort Hall Bakery Supply co. vs. Frederick Muigai Wangoe**: **[1959] EA 474** held that;

*"the law is now settled. A suit in the names of a wrong plaintiff or Defendant cannot be cured by amendment. While Order 1 Rule 10 (2) empowers court to add or strike out a party improperly joined; and Order I Rule 10 (4) allows an amendment of a plaint where the Defendant is added or substituted, such amendment of the plaint can only be made if they are minor matters of form, not affecting the substance of the identity of the parties to the suit:*


*Where the amendment by way of substitution of a party purports to replace a party that has no legal existence the plaint must be rejected because it is no plaint at all. The law does not allow that as in reality there is no valid plaint in the suit.*

The same position the applicant asserted, was reiterated in **HCMA No. 503 of 2000, Aristoc Booklex Limited Vs. Vienna Academy Limited**, (unreported). Court in this case held that;

*Where the amendment by way of substitution of a party purports to replace a party that has no legal existence the plaint must be rejected because it is no plaint at all.*

The Respondent instituted the suit in negligence against the Management Committee of Landmark Junior School and served the same on one of the Board of Directors of Landmark Junior School Ltd.

The applicant contended that the Management Committee of Landmark Junior School does not exist within the structures of the Applicant neither is it known to the Applicant. It is a non-existent. A person with no legal existence that cannot sue or be sued.

The Applicant prayed that court dismisses the suit as a matter of course since there was actually no proper plaint on court record.

The Applicant averred that the facts of this application can be distinguished from the case cited by the Respondents of **Terzol Jobey Vs International University of East Africa University Council and 2 others High Court Miscellaneous Cause No. 4 of 2019**.

In the Terzol Jobey case, the main suit was brought by way of Judicial Review whereas this application stems from an ordinary plaint. Court in the Terzol Jobey case dismissed the preliminary objection of suing a nonexistent person even after acknowledging the fact that it was indeed a nonexistent person because it was the body that made the decision giving rise to the Judicial Review application.

This the applicant maintained that this case was distinguishable from the current application because the person being sued does not exist within the structures of the Applicant and the cause of action in the main suit is not a matter of administrative review but rather one of negligence which is


a tort. *This requires that the negligent person is an existing person who can sue or be sued.*

The applicant further submitted that a Management Committee as defined in the Education (Pre-Primary, Primary and Post Primary) Act Cap 247 *limits it to legal affairs that concern the decisions of a Management Committee and these are administrative in nature.*

The applicant wondered if Court was to order that such a committee compensates or pay any money, how can such an order be enforced. It is settled law that the Court does not issue orders that are in vain. The Defendant ought to be a legal person. The Defendant sued herein is not a legal person in law

Finally, the applicant averred that Counsel for the Respondent cited Regulation 26 of the Education (Management Committee) Regulations in support of his argument. The applicant submitted that this provision is ambiguous. The provision specifically states that a suit **by or against** Management Committee should not be filed against the names of the members of the school management committee. *This does not automatically mean that suits should be filed in the names of the Management Committee*.

The presence of a Management Committee in a school or the mandatory requirement for every primary school to have a school Management Committee does not cloth it with *locus standi*. *There is no specific provision of the law that states that a Management Committee is a corporate body that can sue or be sued in its own name.*

# *Submission of the Respondent on the Preliminary Objection.*

On whether the Management Committee of Landmark Junior School is an existent party, the Respondent contended that Landmark Junior School is a primary school which is governed by the Education Pre- Primary, Primary and Post Primary Act 2008 which defines a Management Committee under section 2(1) thus **Management Committee means a legal body Established to manage a primary school.**


The Respondent cited Section 28(1) of the same Act which goes on to say that *There shall be constituted by the Minister or District Education Officer, by notice published in the Gazette, A Board of Governors or a School Management Committee for any education institution declared by the Minister or District Education Officer, as the case may be, to be an institution governed by such Board of Governors or School Management Committee and may appoint to it such number of members as provided for by this Act.*

He further observed that the Act under section 58(1) establishes the regulations governing school Management Committees. It states that these regulations shall apply to the management of primary schools whether government or privately owned. Regulation 3(1) goes on to say that **there shall be established a Management Committee for each school.**

The Respondent submitted that the regulations further provide under regulation 26 that **suits by or against Management Committee or school shall not be filed against the names of the members of the School Management Committee.** From the above provision it is clear that the law envisages situations where suits shall be filed **by or against** a Management Committee in its own name.

The Respondent cited the case of **Muhigani Gershom versus Board of Trustees of Kigezi High School C. S No 1 of 2024** where Justice Samuel Emokor faced with the same question that is before court now held that *……. the Education Acts Cap 127 of 1970 has since been repealed and replaced by the Education Pre-Primary and Post Primary Act 2008 …………while the former clearly contained a provision under section 8(2) that recognized the board of Governors as a corporate legal entity the latter does not contain any such clause. Whether this was by design or default is not for this court to speculate over it is for this reason that the courts have been more accommodative in suits instituted by or against entities falling under the operation of The Education Pre-Primary, Primary And Post Primary Act In allowing the Board of Governors and Management Committees established under this Act to sue and be sued and such case in point being Sylvia Nakitto versus the Management Committee of St Lawrence Citizen High School Creamland Campus -Nabingo HCMC No.0015 of 2017.*

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Counsel for the Respondent argued that it would appear that the two bodies recognized in the above provision in management of the school is the Board of Governors and the School Management Committee whose appointments are coached in mandatory terms of "shall"

The above position of the law the Respondent submitted was also enunciated by Justice Oyuko Anthony in the case of **Chairperson School Management Committee of Nyangu Primary School Kabaseke Stephen Civil Appeal 86 of 2014** where it was held that *…… it was wrong for the trial Magistrate to entertain this case from the onset even the amendment was wrong the appellant would have been the School Management Committee not the Chairperson School Management Committee of Nyangu Primary School.*

Regulation 26 of the Second Schedule to the Education Primary and Post Primary Act **is very clear on who to sue or be sued.** It is clear that the law establishes School Management Committee as legal person with the capacity to sue and be sued.

The law makes it mandatory for all primary schools be they private or public to establish Management Committees constituted *for the purpose of managing the affairs of the school.* It is clearly evident that the Respondent /plaintiff instituted C. S No 271 against the Management Committee of Landmark Junior School.

The Committee is an existent party as the law makes it mandatory for all primary schools to have a Management Committee.

If the applicant did not constitute a Management Committee, then it is operating in contravention of the law and should not use the court to launder its infractions.

This application was filed as a preliminary objection with the intention of dismissing *C. S No 271 of 2024* for purportedly being filed against nonexistent party. Having established that the Management Committee of Landmark Junior School is a legal entity with the capacity to sue and be sued, C. S No 271 of 2024 is competent and as such should **not** be struck out.

 ## *Analysis and Determination by Court*

The thrust of the applicant's case is that the Management Committee of Landmark Junior School is alien to the school structure and thus a nonexistent person that cannot sue or be sued and that the Respondent's suit must be dismissed.

The issue of non-existence *(lack of corporate personality*) of a Management Committee as a creature of statute can be resolved once for all if the constitutive nature of the Management Committee is unpacked and tested against simple legal principles that endow an entity with corporate personality hence its suability.

Simple questions will lead us to a comprehensive comprehension of a Management Committee as a legal concept or corporate reality.

What is a Management Committee, how is it created, who creates it, for what purposes, how does it enforce its mandate with what tools and are those tools legal or administrative?

I shall proceed to answer these questions in short answers and reach a decision based on the cogency of the answers.

### *What is a Management Committee?*

The Education Pre- Primary, Primary and Post Primary Act 2008 defines a Management Committee under the interpretation section 2(1) as: *Management Committee means a legal body Established to manage a primary school.*

### **How is a Management Committee Created?**

It is created by the School pursuant to the Act and Regulations. Reg 3(1) states that: There **shall** be established a Management Committee for **each** School.

# **For What Purpose Is a Management Committee Created**

Reg 13(1) of Schedule 2 to the Act provides that: *A Management Committee shall manage the school for which it has been established in accordance with the Act and these Regulations, subject to any directions which may be given under the Act by the Minister on matters of general policy.*


## **How does the Management Committee enforce its mandate?**

The Management Committee relies on the Act, the Regulations, its sub committees, the Headmaster and the control mechanisms such as Audits, Meetings and the funds at its disposal to enforce its mandate and manage its roles.

### **Can the Management Committee sue or be sued?**

The wording under Regulation 26 is succinct it states that *"suits by or against Management Committee or school shall not be filed against the names of the members of the School Management Committee*"

It is abundantly clear to any reader that the provision in Regulation 26 is clear on whether the Management Committee can sue or be sued. The regulation is drafted in plain English without any complex verbiage.

In **Black's Law Dictionary**, a suit is a general term for a legal action or proceeding initiated between two or more parties in a court of law. It encompasses a wide range of **legal actions,** including those seeking monetary damages, specific performance, or other forms of legal redress. Essentially, it's a formal way to bring a disagreement before a court for resolution.

It is conceivable that conflicts and obligations are bound to arise at any one time during the execution of the Management Committees' roles this could be because of the multiplicity of roles the Management Committees execute which as a matter of course create legal liability and responsibility.

Regulation13(2) provides that a management committee shall, in so far as they relate to the day to day administration, proper and efficient conduct of the school, be performed by the head teacher of the school on behalf of the management committee.

Regulation 15(1) provides that the head teacher shall be personally answerable to the Management Committee for academic, financial, ethical, moral, social, domestic organization and conduct of the school.

Managing the affairs of the school could be expanded to include dealing in administration of the school, ensuring compliance to the legal edicts governing the schools, managing student affairs, managing teachers and non-teaching staff, managing contractual and other relationships of the

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school and managing the school as a business. In so doing there are bound to develop many legal, administrative and management issues.

The only exclusion the law made in regulation 26 is that no member of the Committee can be sued personally in his or her name for actions of the Management Committee done in good faith on its own behalf.

Regulation 13(3) also states that: A member of a management committee shall not be subject to any personal liability in respect of any matter or thing done or omitted to be done, or any contract entered into by or on behalf of the management committee, in so far as he or she acted or omitted to act in good faith.

This is standard corporate practice meant to insulate committee or board members from personal liability for decisions made in situations of collective responsibility. It makes legal and common sense that a member of the committee should not be crucified personally for decisions arrived at by the collective.

The end result of answering the above questions leads us to the incontrovertible truth that a Management Committee of a school established under the Act is a legal body that executes quite a number of legal and administrative roles which inevitably require it to be clothed with the necessary corporate personality to enforce its rights by way of suits and conversely being sued.

# The answer is that a **Management Committee can sue and be sued.**

That fact having been exhaustively resolved, we now get to the more complex question of; *if the Management Committee of a School is made of corporate material can it then be non-existent at the same time*? This is the legal conundrum we need to grapple with in the next few paragraphs.

### **Legal Conundrum**

There is no doubt that the cases cited by the Applicant are incontestable in so far as the suing of a non-existent party is concerned. There is no cure for suits brought against non-existent parties. The law is settled on that matter.

The conundrum however in this case is that whereas the law *stipulates in mandatory terms that each school shall establish a Management Committee*, this particular School Landmark Junior School has admitted


to not having one in its structure, despite Regulation 3(1) providing that there shall be established a Management Committee for each school.

This is a conundrum because technically the school is right that the party sued by the Plaintiff/Respondent doesn't exist in its structure. This begs the question -*why doesn't the Management Committee exist in Landmark Junior School when as a matter of law it MUST exist*?

## **Illustration.**

If a school football field does not have goal posts yet the school wishes to host football matches can it be said that there will be games but no one will be able to score just because the posts have been deliberately omitted yet they are part and parcel of the Football rules to have goal posts?

If the law provides that there shall be suits against the Management Committee and a school doesn't establish it in breach of that law can that school claim to be immune from suits just because it did not comply with the law to establish a Management Committee which is the party meant to be sued?

In this case, the Respondent entered the football pitch with all its 11 players dressed in boots to play the game but they were unlucky to find no goal posts and the school against whom they are meant to play is claiming victory from the referee on account of their illegal omission to provide goals posts. Technically, the Respondent cannot score because the goal into which to score is ABSENT. What should a referee do?

The other more serious question is; can the court lend a hand in entrenching this illegality or tacit non-compliance to the law by the school?

The last question is should the court ignore Article 126(2)(e) of the constitution which enjoins it to not allow technicalities to stand in the way of substantive justice?

Section 98 of Civil Procedure Act grants the High Court inherent powers to make necessary orders for the ends of justice or to prevent abuse of the court process. This section essentially acts as a safety net, allowing the court to address situations not explicitly covered by other procedural rules. Is this not a ripe situation to apply these two legal principles to arrive at justice?


### **Critical Observations**

I have painstakingly arrived at the finding that the absence of a Management Committee in Landmark Junior School should not be used by it as a tactic to avoid liability in cases of suits that should be competently brought against it.

Whereas the school could argue that the Respondent could have sued it through any other avenues such as suing the school directly or the Board of Governors it could be argued that the fact that they are hiding under noncompliance in order to get a legal victory is equally legally unsound.

In the circumstances I am compelled to apply the inherent powers that court is granted under article 98 of the Civil Procedure Act in concert with article 126(2)(e) of the Constitution of the Republic of Uganda to make the determination as follows:

- 1. The non-existence of the Management Committee in the structure of the applicant should not protect the applicant from being sued or to avoid responsibility and potential legal liability. - 2. The Respondent sued the Management Committee vide Civil Suit No. 0271 of 2024 believing that it is mandatory for each school to have a Management Committee which can be sued. - 3. To that effect I find that the Respondent acted like any reasonable party intending to sue a school would in the circumstances. I would not visit a penalty on the Respondent for failure to have known that a school against whom it brought a suit had overtly omitted to comply with the Act that establishes and governs (pre-Primary and Post-Primary) schools.


#### **Orders**

*A.* In exercise of the inherent powers already discussed above and pursuant to Order 1 rule (10) (2) of the CPR which provides that… *The court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the court to be just order that the name of any party improperly joined whether as plaintiff or defendant be struck out and that the name of any person who ought to have been joined whether as plaintiff or defendant or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit be added,*

I therefore, **ORDER that the right party should be substituted in this case and that should be either Landmark Junior School Limited itself or any other of its part that should have been sued.**

- B. I also order Landmark Junior School to as a matter of utmost urgency establish a Management Committee in its structure as provided by the Act and the Regulations. - C. I dismiss the Applicant's objection with costs to the Respondent.

**I so order.**


**BONNY ISAAC TEKO JUDGE**