[1990] UGHC 38

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 871 OF 1989

MESS RS AYIGIHUGU & CO., ADVOCATES. ............. PLAINTIFF.

VERSUS

DEFENDANT. MARY MUTETERI MUNYANKINDI The Honourable Mr. Ag. Justice J. W. N. Tsekooko **BEFORE:-**

## JUDGMENT (ORDER)

The plaintiff is a firm of advocates and is a donee of special power of Attorney granted on 18th September, 1989 by one Alexander Munyankindi (hereinafter called "the donor") and sues the defendant by virtue of the said special power of Attorney and on behalf of the donor. The power of Attorney is contained in a deed which states in part as follows:-

"By this power of Attorney created the 18th of September. 1989, I, ALEXANDER MUNYANKINDI of Kigali, Rwanda, hereby appoint Mess^rs, Ayigihugu & Company Advocates of Eagen House, Plot 28, Luwum Street, P. O. Box 31, Kampala my Attorney in my name and on my behalf to execute and do all or any of the instruments, acts and things following namely

- To demand and/or take possession of all my property both $1.$ moveable and immoveable in the Republic of Uganda as set out in the Schedule hereto from whoever shall be and is in possession of the said property or any of them, - To commence and carry on all legal actions and all other $\overline{2}$ . proceedings that my attorney shall consider mocessary and proper for the recovery and taking possession of the said property in Uganda.

$...$

$\mathcal{C} = \mathcal{C} \oplus \mathcal{C} \oplus \mathcal{C} \oplus \mathcal{C} \oplus \mathcal{C} \oplus \mathcal{C} \oplus \mathcal{C}$

$\mathcal{L}$ To execute all instruments and do all other acts, deeds $3.$ and things which my said Attorney shall consider necessary or proper for or in connection with the recovery and taking possession of the said property.

Upon recovery and taking possession of the said property. $4\cdot$ to hand it over to the Embassy of the Republic of Rwanda in the Republic of Uganda. $\mathcal{F} \subset \mathcal{F}$

And I hereby agree and undertake to retify and confirm all the whatever that my said attorney shall lawfully do or cause to be done by virtue of this power of Attorneyu.

$\mathcal{L}^{\text{max}}(\mathcal{L}_{\text{max}}) = \mathcal{L}_{\text{max}}(\mathcal{L}_{\text{max}})$ The deed which has a schedule of the property to be obtained was admitted in evidence as Exhibit P. IV during the course of the hearing of the case. The case was heard in the absence of the defendant who did not appear although she had been duly served. judgment I realised after a study of the $\frac{1}{2}$ While writing power of attorney that the suit was instituted in the name of a wrong plaintiff.

As can be seen the essential part of the opening paragraph of the deed states

$\bullet$ $\bullet$

"By this power of Attorney .......,,, I, Alexander Munyankindi appoint Messrs Ayigihugu & Co., Advocates ...,..... my Attorney in my name and on my behalf to execute and do all or any of the instruments, acts and things following..........

To commence and carry on all legal actions and all procee- $2.$ dings......." On the face of it the deed requires the plaintiff to act in the name and on behalf of the donor of the power of Attorney.

$\cdot$ $\cdot$

There is a statement of the law and practice in Volume 1 of the 4th Edition of Halsburry's Laws of England at page 447 paragraph 744 which states $\mathcal{L}_{\mathcal{A}}\left(\mathcal{L}_{\mathcal{A}}\right)$

$\ldots\ldots\ldots$

"An agent acting under a power of Attorney should as a general rule, act in the name of the principal. If he is authorised to sue on the principal's behalf the action should be brought in the principal's name".

$\overline{3}$

In the case of Jones and Saldhana Vs. Gurney /19137 W. N. 72. the first plaintiff Jones who resided in Vancouver, Canada, by a power of Attorney authorised the second plaintiff, Saldhana, resident in England, to sue the defendant who was also resident in England, Saldhana instituted the suit and his lawyer joined Jones for purposes of avoiding provision of security for costs because Jones was residing outside Court's jurisdiction. The defence successfully moved court to strike out the name of the Attorney as a plaintiff. Swinfon Eady, J, held that the attorney had no cause of action at all against the defendant and was wrongly joined as a complaintiff. The learned judge further stated that proceedings taken by an Attorney ought to be taken in the name of his principal. He struck out the name of Saldhana. This case is on all fours with the present case and is of very persuasive value. It applies the law and practices which Uganda has inherited.

I haven't got the latest copy of the Supreme Court Practice (England) but I have read in part 1 of 1976 Supreme Court Practice and noted at page 35 that at least by 1976 the same law and practice was being followed by the Supreme Court of England and the case of Jones is cited as authority.

Here in Uganda the case of Jones was quoted and followed by Jopes, J. in High Court Civil Suit No. 94 of 1964 (Govindhi Mathuradas Vs. V. M. Patel) reported in Wilkinson's case on Civil Procedure And Evidence, Volume 3 (1972 Edition) at page 21.

The summary of the proceedings there show that objection proceedings were taken by and in the name of the donee of a power ssa manna

$\cdots \cdots \cdots \cdots \cdots \mathstrut ^{j_4}$

of Attorney, The learned judge held that a holder of power of Attorney ought to take proceedings in the name of the .owner of the property (donor of the power). In principle there is thus no distinction with this case.

4' ■: . -

*V*

At first after I had considered the matter I formed views. First I thought that as the end result would be the same whether 1>he donor or the donee was the plaintiff I should decide the case as it is. On further' reflection I have concluded that the matter here is not just simple procedure. It is ^a question of law. As it was pointed out in Jones'^s case the Attorney has no right of • \* action. ^A judgment deciding the rights of parties cannot be based on a plaintiff who shows no cause of action. The second view was whether under 0.1 Pule 10 I should permit substitution of the plaintiff or under 0.6 Fule ¹⁸ amendment should be permitted EXMERO motu. \*

By O.>1 Rule ¹⁰ (i) it is provided that ''where ^a suit has been instituted in the name of the wrong person as plaintiff^ *or* where nt is doubtful wherther it has been instituted in the name of the right plaintiff, the court may at any stage of the suit, if satsified that the suit has been instituted through ^a bonefide mistake, and that it is necessary for the determination of the rfeal matter in dispute to do so order any other person to be substituted or added as a plaintiff upon such terms as the ' court fchinks fit". • •

Sy 0.1 Rule 10 (2) The court may at any stage of the proceedings, either upon or without the application of either party, \* f 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

......................... /5

or defendant be struc k out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence in 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".

It should be observed here that the exerc isc of the powers of court under either of sub rules ¹ and ² is subject to the first limb of 0.1 rule 10 (J) which-would inevitably oblige court in effect to advise the\*present plaintiff. Besides under sub rule ¹ the court would have to investigate in order to be satisfied that there was a bone fide mistake in taking the proceedings not in the name of the donor but in the name of the doneeff Moreover, if I have plaintiff struck out under sub rule ² in my view the suit collapses leaving no plaintiff to keep it on record.

I think that in the circumstances of this case where the plaintiff had been permitted to proceed exparte, if I invoked powers provided for under either of the tv/o rules (or indeed under 0.6 Bule 18) I would-be unnecessarily descending into the arena of the case. It would be improper and wrong for me to do so at this late hour of the case. That remains my view even if I had to consider the matter under S. 103 of Civil Procedure Acts.

In the premises there is no alternative but to order for the plaintiff to be struck out. I so order. If any costs have been occasioned, they will be paid by the plaintiff.

G'v- ^C \* ^J.'^m^-t./ekooko

AG, J UDGE 30/8/1990

Court:. As I may not be available on 3rd September, 1990 I direct the Registrar (Civil) to read this ruling on that day see 0.18 Rule ² (3) of Civil Procedure Rules.

J. V/-. N. TSEKOOKO AG, ^D ^G E.

30/8/1990..

V9/199O:

Mr. A. Rezida for plaintiff.

VJagaba interpreter. 'read .by myself in presence of above.,

TSEKOOKO

AG. JUDGE 4/9/1990