[2024] UGHC 835

# 5 **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT KABALE**

# **CIVIL SUIT NO 0001 OF 2024**

# **MUHIGANE GERSHOM**::::::::::::::::::::::::::::::::::::::::::::::::::::::: **PLAINTIFF VERSUS**

# 10 **THE BOARD OF TRUSTEES OF KIGEZI HIGH SCHOOL:**:::::::::: **DEFENDANT BEFORE HON. JUSTICE SAMUEL EMOKOR**

# **RULING**

The Plaintiff brings the instant Suit against the Defendant seeking orders for a 15 declaration that failure by the Defendant's school staff to safeguard the Plaintiff's son from being bullied/beaten/battered/assaulted by fellow students at the defendant's school premises amounts to negligence, an order for payment of special damages worth UgX 72,643,000/=, general damages, interest and costs of the Suit.

20 When this matter came up for summons for directions before the Assistant Registrar the Defendant's Counsel intimated that they had a preliminary point of law to raise and as a result the matter was referred to this Court and a schedule provided for the parties to file written submissions to which both sides complied.

# **Representation.**

25 Messrs Credo Advocates represented the Plaintiff while Messrs Bikangiso & Co. Advocates appeared for the Defendant.

# 5 **Submissions.**

It is the submission of Counsel for the Defendant that any Suit against or on behalf of a non-existent party is a nullity from the very beginning and that such an issue is a fatal mistake that cannot be cured through substitution with the right party. To buttress his point Counsel refers to the decision in **Paul Nyamarere versus**

10 **UEB HCCS No. 0319 of 2002**.

Counsel also relies on **Section 8 (2)** of the **Education Act** that provides that "*the Board of Governors established under Sub Section (1) shall by the name of the school or group of school for which it is established be a body corporate having perpetual succession and a common seal and may in its corporate name, sue and*

15 *be sued and may purchase, sell, lease…"*

It is the contention of Counsel that in the matter at hand the Plaintiff sued the Board of Trustees Kigezi High School and that the school in Question is "*Kigezi High School"* which is a Public school provided for under **Section 1 (g)** of the **Education Act** and that the same can only sue or be sued by its corporate name

20 *"The Board of Governors Kigezi High School"* as the top administrative organ of a Public school.

It is therefore the submission of Counsel for the Defendant that the instant Suit brought against the "*Board of Trustees Kigezi High School"* which is a nonexistent entity makes the Suit a nullity and the same should be dismissed with 25 costs.

5 Counsel for the Plaintiff in his written submissions in reply contends that there is no such law as the *"Education Act"* in Uganda and that the same was repealed by the **Education (pre-primary, primary and post primary) Act, 2008.**

Counsel also cites the decision in **Ismail Dabule & another versus Attorney General and BOU (UGSC) No. 30 of 2015** in which the Court in reference to

10 **Section 12** of the Interpretation Act held that:

"*Statutory instruments are based on some points in an Act: If the Act is repealed and the same Act or any of its provisions is not re-enacted in some way in the repealing Act, and there is no indication in the Act that the Statutory instruments have been saved then the statutory instruments made under it will be deprived of*

15 *their statutory base and cease to be law"*

To this effect Counsel submits that the Education (Board of Governors) Regulations (statutory instrument) 127-1 and the Education (management Committees) Regulations (statutory instrument) 127-3 are all no longer law and that the preliminary point of law raised is based on a law that has been replaced.

- 20 Counsel for the Plaintiff contends that **Section 28** of the **Education (preprimary, primary and post primary) Act 2008** which establishes the Board of Governors is also silent on the Board's locus standi and that **Section 4** that establishes private schools does not speak to which body has the capacity or responsibility of suing or being sued in a private school. - 25 Counsel further relied on the Provisions of **Order 1 Rule 10 (1)** of the **Civil Procedure Act** that enjoins this Court to allow substitution of a Plaintiff where a Suit has been instituted in the name of a wrong Plaintiff.

- 5 Counsel also argues that the instant Suit has not been brought against a nonexistent party and that the decision in P**aul Nyamarere versus Uganda Electricity Board [supra]** is very distinguishable from the facts of this case and the preliminary objection is devoid of merit and a waste of Court's time and prays that the same is overruled. - 10 In the alternative and without prejudice Counsel prays that if this Court finds that the Plaintiff sued a wrong Defendant then the Plaintiff be allowed to include or add the right Defendant.

Counsel for the defendant in rejoinder concedes that the **Education Act Cap 127 of 1970** has been repealed by the Education (pre-primary, primary and post 15 primary) Act 2008.

Counsel none the less maintains that the said Act makes reference to the Board of Governors and Management Committees as per the Plaint. Counsel reiterates his submission that the Board of Trustees Kigezi High School is a non-existing party which cannot be cured by substituting it with the rightful party.

# 20 **Determination.**

I would agree with the Plaintiff's Counsel that the **Education Act Cap 127 of 1970** has since been repealed and replaced by the **Education (pre-primary, primary and post primary) Act 2008**. I would further agree with the submissions of Counsel for the Plaintiff that while the former clearly contained a provision under

25 **Section 8 (2)** that reorganized the Board of Governors as a corporate legal entity, the latter does not contain any such clause.

- 5 Whether this was by design or default it 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 (preprimary, 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 - 10 case in point being **Sylivia Nakitto versus the management committee of St. Lawrence Citizen High School (Creamland campus – Nabingo) HCMC No. 0015 of 2017.**

This position derives its existence from **Section 28(1)** of the **Act** that provides:

# *"Board of Governors and School Management Committee.*

- 15 *There shall be constituted by the Minister or District Education Officer by notice published in the Gazettee a Board of Governors or a School Management Committee for any education institution declared by the Minister or District Education Officer, as the maybe, to be an institution governed by such Board of Governors or School Management Committee and may appoint to it such number* - 20 *of members as provided by the Act".*

It would appear to me 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".

In the instant case it is the argument of the Defendant that the *"The Board of*

25 *Trustees Kigezi High School"* is a non-existent body. Counsel for the Defendant also submits that Board of Trustees is for private schools, organizations which in the instant case cannot be used for a Public school.

5 The onus in my view is on the Plaintiff to prove that Kigezi High School has in place a Board of Trustees. This is the crux of the argument. The Plaintiff despite its lengthy submissions has not impressed it upon this Court that such a body exists in Kigezi High School.

The Plaintiff also seeks to rely on **Order 1 Rule 10 (1)** of the **Civil Procedure** 10 **Rules** to cure any shortcoming in his Suit. I will reproduce this Order below for ease of reference:

*"Where a Suit has been instituted in the name of the wrong person as Plaintiff, or where it is in doubt whether it has been instituted in the name of the right Plaintiff, the Court may at any stage of the Suit, if satisfied that the Suit had been instituted*

15 *through a bonafide mistake and that it is necessary for the determination of the real matter in dispute to do so order any other person to be substituted or added as Plaintiff upon such terms as the Court thinks fit"*

The above provision read together with **Sub Rule (2)** all relate to an action in the name of *"a wrong person"* and connotes legal personality upon the said person or

20 entity as the case maybe. In the present case it is not proven that the Board of Trustees of Kigezi High School is in existence and in the absence of any such proof I am convinced by the submissions of the Defendant's Counsel that it does not exist.

The Court in the **Trustees** of **Rubaga Miracle Centre versus Mulangira** 25 **Ssimbwa HCMA No. 0576 of 2006** 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 as there is no plaint at all.

5 In the result the preliminary objection is upheld. The plaint in this Suit is rejected and the same is hereby dismissed with no orders as to costs since a non-existing party cannot be paid costs.

Before me,

10 …………………………………. **Samuel Emokor Judge**

**27/06/2024.**

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