[1996] UGHC 53

#### THE REPUBLIC OF UGANDA

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

CIVIL SUIT NO. 926/94

PRINT & STATIONERY SUPPLIES PLAINTIFF V E I?" S US

KITGUM DISTRICT ADMINISTRATION DEFENDANT BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA.

# ^R ^U ^L I IT G:-

The plaintiff filed this suit against the defendant claiming special and general damages for breach of contract costs and interest on the decretal sum. When the case came for hearing the learned counsel appearing for the defendant Mr. Kinyera raised some preliminary objection to the plaint on two grounds and hence this ruling to resolve the matter.

The first issue was that the suit is misconceived because in that the plaintiff sued a non existent party Kitgum District Administration. That is no longer there with effect from December 1993 under the Resistence council statute 1993 statute NO. 15 of 1993 which came into force prior to District Administration Act 19 of 19^7• Because District Resistence Council is a body corporate. It can sue and be sued in its names. S 48 (l)a of the statute repealed local Administration Act of 19^7• He submitted that it is wrong to bring a suit against the District Administration which is non existence in law. The defendants are non existent and the plaint cannot be amended. He played that the plaint be struck off as being incompetent. I WHS referred to the case of Ssajjabi vs. Manufacture 197^ HCB p 202 where

the plaintiff sued, the defendant a non existent company\* It was held that But the question is suing wrong party who can not be substituted\* This rule does not apply where aparty is in existence\* a non existent person cannot be sued and amendment can not be made under order ¹ of the civil procedure.

R

The second ground/issue was whether statutory notice was served on the defendant. The defendant was served by speed delivery and it is indicated it was received by Okello the executive officer\* The statutory notice was never served and even if it was it was served on a wrong person\* He prayed that the suit be struck out with costs\* He submitted that the law provides that the defendant should be given statutory notice of 60 days\*

In reply Mr\* Lutakome submitted that the preliminary objection Ihat The pleadings are not in the WSD fxfrg fi^ed in court when I look at the defence was to raise a preliminary point of law as required by order 6r27 of the CPR\* It is well principle of the pleadings to know the line of pleadings which a party would like to rely on not to take the opposite party by surprise\* He noted that statute NO\* 15 of 1993• Changes the names of Administration to Resistance Councils\* In the circumstances the defendant continued using the old names and that is Kitgum District Administration \* The defence contains some annextures but all of them cite Kitgum District Administration\* It appears after the statute 15/93 had been passed the defendant were still calling themselves Kitgum District Administration. The annextures bear the signatures with Kitgum District Administration. Even the defence knew the name had changed could not have used Kitgum District Aministration under statute NO\* ¹⁵ of 1993# Those were just mere change of name but the body x± is still is governed by order 6 rule 27 of the civil procedure rules\* aparty can raise apoint of law in his pleadings.

The court can the same# S 48 of statute NO# 15 1993 just states that interest were taken over by the District Resistence Council so the District Council has never changed it ia till liable under the contract# He submitted this to simple irregularity could be amended by providing the proper name of the defendant under order 6 r 18 of the CPR the court may at any proceeding allow aparty to amend the proceedings under order *6* r 18# entertain an application to amend by substituting Kitgum Resistence Council instead of Kitgum District Administration^

**n** U>>«S

He g ated to get the authority.from the library but that case was referring to accompany incorporated in the company's Act# Those were business firm and were different from local authorities amended from time to time# That they appreciate these administration cases have been changingfrom time to time# By the time the local administration Act was passed there was nothing like KitgumAdministration# The name has changed from time to time' as the laws were being amended. ' Jt appears when the law changed many local administration# The facts And he would pray that the court involves S101 of the CPA so that the courts makes an appropriate order so that the ends of justice could be H-i s learned friend is insisting that the suit be struck out because he knows onee ^thi^s is done they could not institute another suit as they would be The dismissal would case injustice to the plaintiff who supplied time barred# materials to the defendant and the latter refused to pay. He prayed that the suit should not be dismissed but proceeds on its merits# ^L so in the interest of justice if the amendment is granted would not change anything# would not change and even the defence condoned to this sort of things# He further submitted that the counsel conceded not any amendments can be entertained by court and cited the case of Sajjabi# administration did not comply with change# They still have the local Thfeitis why Kitgum have not chan!

'•he - About statutory notice he submitted that there is evidence that

notice was served He therefore further received by the personal secretary to the It is not true that that the statutory notice was not received whether it is a secretary who signed for it in the names of Okello. complied with Act *29* of 1969\* him\* The notice He had documentary evidence to that effect before was despatched on 7th October 19%?.to Kitgum District » • ®le pa^cel/letter was addressed to the District executive secretary and. that matter was Distridt executive secretary\* Administration It is premature to say that., the statutory notice was not served on the defendant\* In paragraph 15 of the plaint it says statutory on 23rd October 1994 at the Administration Headquarters\* The counsel cannot come at the bar and deny this fact\* prayed that the objections be overuled\*

n

He referred all this but the pleadings are very clear and law should not be pleaded. It is true order 6r27 of the CPR allows pleadings but there is nothing to amend . in this case. suit, to be amended.. If the defendant is a legal entity the amendment would have been possible but that wqs not the case\* You could not exist that which does not eMist\* The rule is Sajjabi's case No ammendment could be effected That in sui- He does not deny that but an followed. To say that District had not changed that holds no water that There is no action against District Admini strat-inn is unavailable because Kitgume Distridt Administration is not there? Law is law and the same must be does not.change the law, cited by him is good law to guidCthe court\* under 1rule1© of the civil procedure. He submitted this could be isiored\* firms are treated differently. In rep}.y Mr\* Kinyera submitted that his learned friend said there was nothing in. the WSD to say that he would raise the objection\* .the court to paragraph 15 of WSD\* It was intimated that the defence would raise objection that the plaint was untenable\* H^learned friend ignored

About involving S161 of the CPA the plaintiff could not use that provision of law. He prayed the plaint be struck off because'it' is'incompetent and if the plaintiff could not renew the suit that is a^^^l^between him and his

: 4

client. He saw the speed delivery notice but when was sent there is not shown as statutory notice. They do not know what was sent there. That kind of service should be ignored. He should have compled with Act 29 of 1969. The service was improper and prayed his preliminary objection be upheld.

Kitgum District Administration the defendant in this case was the creation of the local Administration Act 1967 (Act 18 of 1967 section 1 of the said Act provides "there shall be established in each District a local Administration which shall consist of a secretary General Assistant secretary General or Chief Executive Officer" subsection 2 of S.1 of the same act provides "Every Administration shall be a body corporate having perpetaul succession and a common seal and may sue and be sued in it s cooperate name.

The local Administration Act 1967 was repealed under section 48 of the local Government Resistence Councils) statute NO. 15 of 1993. The date of Assent for statute $15/93$ is given as 17 the December 1993 and the date for the commencement of this Act was given as 31st December 1993.

A close study of the court record reveal that the plaint was filed on 21st December 1994. A close study of the court record reveal that the plaint was filed on 21st December 1994. This was after the local administration Act had been replaced. The suit therefore was filed against an improper defendant Kitgum District Administration. The proper may defendant would have been District Resistence Councias.

However where a suit has been instituted in the name of woong a person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintir the court may at any stage of the suit if satisfied that the suit have been instituted through abonaride mistake and that it is a necessary for the determination of the real matter indispute to do so order any other person to be substituted or added as plaintiff upon such terms as the Country Think fet. Secondar 1710 CPR,

In the instant case despite the fact that statute 15 of 1993 had amen Kitaum Pusanct Redmutation to read. District Resistance

correspond operating under the former name# . There arc **\** evidenced by the Annextures to the. plaint#' **%** opinion was a bonafide mistake and it is necessary to determine the real matter between the parties as to whether the plaintiff did supply materials to the defendant# ' Le. parties used to documents to the effect as dhas in my humble

6 **^t**

As to whether statutory notice was served on the defendant's Act 20 of 1969 provides that no suit still lie or be instituted against

**(a)**.............. . **• ^z**

(b) local authority '

(c)

until the expiration of sixty'days next after -written notice has been delivered to or left at the office of the person specified in schedule to' the Act#

October 1994 at its Headquarters in Kitgum District under schedule ¹ of Act According to the plaint para 15 statutory notice of intention to sue was served on the defendant and duly received by the defendant on 12th secretary of the Administration# 20 of 1969 -i® the intended defendant ² **^X ^x (1** *&* **wd** *XT*local Administrations# The notice has to be served., on the Administrative

According .takome the defendant vias served by speed delivery and . *. .* M According to it was indicated, was received, by one Okello executive secretary^' to schedule ¹ delivery was not made to the Slight person accordan sctedttle-4-of 15 ^x>£\_10Q1. but as I said earl^par.ties were a corresponding ■with each other using Kitgum District Administration^Okello, would have been or not the right person to whose office notice was delivered. An affidavit by the defendant would have a^scu^ied this court.

he As to whether the plaintiff was justified in raising this preliminary objection I am of the view he was wntitled to because he made i^Tclear where stated that the defendant shall ever the plaintiff s plaint.is contradictory

and vexations in substantial partition and still move that it be struck as being intenable. He did comply with older 6, of 27 of the CPR.

**⁷ , . r?.**

Lutakome \* This is not available -where there is specific provision of the law See Kasule ys\* Kasuja 1979 HCB p 99\* As regards the invoking of S 101 of the CPA mentioned by Mr.

is over ruled with costs\* In the end the preliminary objection raised by Mr. Kinyera plode

> I. MUKANZA JUDGE 23^2.1996.

Mr. Lutakome for the plaintiff absent Kinyera plode for the defendant present Ruling is read and signed\*

> I. MUKANZA JUD GE 23.2.96

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## **CIVIL SUIT NO. 926 OF 1994**

## PRINT & STATIONERY SUPPLIES (U) LTD ...................................

#### **VERSUS**

## KITGUM DISTRICT ADMINISTRATION....................................

#### **ORDER**

This application by way of preliminary objection coming before the Honourable Mr. Justice Ignatius Mukanza at Kampala on the 23^rd day of February, 1996 by Kinyera P'Lodi, Counsel for the plaintiff for order to strike out the plaint.

It is ordered that the preliminary objection be and is hereby over-ruled with costs to the plaintiff.

Leave to appeal against this order is granted.

GIVEN under my hand and the seal of the Court this ... day of $\lambda$ .....,1996.

DEPLAY REGISTRAR