[2022] UGHC 135

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-CV-CS-0010-2022

# **MUPA TECHNICAL SERVICES LTD :::::::::::::::::::::::::::::::::::**

### **VERSUS**

## ISINGIRO DISTRICT LOCAL GOVERNMENT :::::::: DEFENDANT

**BEFORE: HON LADY JUSTICE JOYCE KAVUMA**

### **RULING ON PRELIMINARY POINT OF LAW**

### Introduction.

When this suit came up before me, counsel for the Defendant $\mathfrak{m}$ indicated to court that they intended to raise a preliminary point of law regarding the propriety of the Plaintiff's suit against them.

Counsel for the Defendant submitted that the Defendant as written on the instant file was a non-existent party and as such the suit commenced against a non-existent party was a nullity and ought to be dismissed.

Counsel relied on **Section 3** of the Local Governments Act which establishes the corporate status or names of all Local Governments in Uganda for the submission that the instant suit ought to have been brought against "the District Council". That the word "council" was mandatory in the name of the Defendant whose omission rendered the Defendant a non-existent party since it was the "District Council" with corporate status under **Section 6(1)** of the Local Government Act.

In their reply, counsel for the Plaintiff submitted that Sections 6(1) and 3 of the Local Government Act once read together brought out the conclusion that referring to the Defendant as "Isingiro District Local Government" was not referring to a non-existent party. That the omission of the word "council" in the defendant's name was a minor matter of form that cannot affect the identity of the party in this suit and the Defendant will remain the same if this court orders an amendment to add the word "council".

#### Analysis and decision.

**[2]** Given the above abridged arguments of both counsel, this is the finding of this court on the preliminary point of law.

The main issue in this preliminary objection is that the Plaintiff sued a wrong party. The arguments of counsel for the Defendant averred that for that reason the plaint in the instant suit is incurably defective and thus ought to be struck out.

In their response, counsel for the Plaintiff attempts to show this court that though right, the omission of the word "council" in the name of the Defendant is not fatal and does not affect the identity of the Defendant and thus curable by amendment.

**[31** From the onset, I have to point out, as a fact, that the Defendant named in the Plaint as "Isingiro District Local Government" is not capable of being sued in this matter by virtue of Section 6(1) and Section 3 of the Local Governments Act, Cap 243. This is so because the law specifically vests the capacity to sue and be sued in the Local Government Councils. The proper party in the instant suit should therefore have been Isingiro District Local Government Council and not Isingiro District Local Government.

It is trite that this court has power suo moto to allow parties to proceedings to alter or amend their pleadings for the purpose of determining the real questions in controversy between the parties. It ought to be pointed out that such amendments should be in accordance with the law and should not prejudice the rights of the other party.

**[4]** Is the omission by the Plaintiff one that is curable? What actually did the Plaintiff come to court for? Will an amendment once ordered by this court *suo moto* prejudice the other party to the suit or will it resolve the real questions in controversy between them and avoid multiplicity of suits.

It is clear from the pleadings under paragraph 4 of the Plaint that they were seeking for declarations, award of compensation of UGX $1,000,000/=$ as legitimate expectation, special and general damages, exemplary damages, interest against the Defendant. It is my finding that the omission of the word "council" in the name of the Defendant was one that is not curable by amendment and would not in any way prejudice the Defendant or change the substance of the Plaint.

I am satisfied that if the Plaintiff is allowed by way of amendment to add the word "council" to the Defendant's name in the Plaint this court would be doing justice to both parties. This is will enable this court to effectually and completely adjudicate upon, settle all questions involved in this suit and avoid multiplicity of suits.

The preliminary objection is therefore not sustained. This suit shall be heard on its merits. I accordingly order the Plaintiff to immediately, within 15 days of delivery of this ruling to amend the Plaint, file it with court and have the same served upon the Defendant.

Each party will bear their own costs.

I so order.

Dated, delivered and signed at Mbarara this.

Joyce Kavuma Judge