FINAL SUBMISSIONS OF THE RESPONDENTS
The Applicants filed an application in this Honourable Court by way of Notice of Motion under Section 33 of the Judicature Act Cap 3, Section 83 of the Civil Procedure Act Cap 71 and Order 50 Rules 1 and 2 of the Civil Procedure Rules SI 71-1. In this application they sought Orders that;
A declaration that the locus proceedings and subsequent judgement in Civil Suit No.023 of 2013 against the deceased is illegal, null and void
The judgement passed and all the subsequent Orders in Civil Suit No.023 of 2013 be set aside because it was passed against a dead person.
Costs of the application be provided for.
In their response the respondents denied all the prayers made by the Applicants and prayed that this Honourable Court dismisses the Application with Costs.
Issues
1. Whether or not the Applicants have locus to bring up this Application?
2. What are remedies available to the parties?
In resolving the first issue as to whether or not the Applicants have locus to bring up this Application;
It is a matter of law and a settled practice that not everyone can bring up an action in Courts of law. This is known as capacity to sue or be sued.
Order 1 rule 1 of the Civil Procedure Rules SI 71-1 provides and I will quote it in verbatim;
All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if those persons brought separate suits, any common question of law or fact would arise.
The Black’s Law Dictionary 8th Edition similarly at page 2754 defines locus standi as the right to bring an action or to be heard in a given forum.
It is important to note that the person who brings a suit must be legally entitled to seek the relief requested. Secondly, the person must be recognized under the Law. This fulfils one of the evidential requirements in the act of identification.
Order 31 of the Civil Procedure Rules SI 71-1 is the guiding rule in representative suits of deceased persons and it should be noted that the only recognized persons to bring up suits or defend suits on behalf of a dead person are administrators of his/her estate. It should not go without the cognizance of this Honourable Court that the Applicants in this matter are not legal representatives of the deceased and therefore cannot sustain an application against the respondents.
In the suit of AG V Sabrina Building and Decorating Contractors Limited, HCMA No.299 of 2012 (Commercial Division), Justice Wilson Musalu stated that:
“The most basic and first step in founding a suit is the identification of who are the parties to the suit. A suit brought by or against a wrong party may embarrass or cause delay in trial. In the case of embarrassment, the suit may well be a non-starter altogether. Delay on the other hand may arise out of the need to amend which general power is provided for under section 100 of the Civil Procedure Act for the purpose of determining the real question or issue raised by or depending on such proceedings. Indeed some of the genuine errors may arise in identifying the correct parties”.
If the person bringing a suit cannot establish his or her legal capacity to do so, the suit will be dismissed. Thus, in the suit of the Fort Hall Bakerly Supply Co. Vs Fredrick Muigai Wangoe [1959] EA 474, the plaintiffs brought an action for the recovery of a certain sum of money. During the hearing, evidence disclosed that they were an association consisting of forty five persons trading in partnership for gain and that the firm was not registered under the Registration of Business Names of Ordinance. It was held that the plaintiffs could not be recognized as having any legal existence, were incapable of maintaining the action and, therefore, the Court would not allow the action to proceed.
The Applicants in this Honourable Court were not party to Kayunga Magistrate’s Case No.023 of 2013 neither are they holders of letters of administration for the estate of the deceased plaintiff in that suit. They are therefore illegally before this Honourable Court and we pray that Court finds so.
Similarly in the suit of Abdala Ramathan V Agony Swaib HCMA No.0067 of 2016 that has been relied on by the Applicants. It should be noted that this suit is distinguishable from the present facts. The Applicant in that Application had not been accorded opportunity to defend the suit on behalf of the deceased. Where as in the Kayunga Magistrate’s Case No.023 of 2013 the applicants were accorded an opportunity to obtain letters of administration which they did not do and Court was left with no option but to decide since justice delayed is justice denied. The applicant in the above suit had obtained letters of administration and was recognized as legal representative. However, up to date the Applicants in this Court have not secured the same and we therefore wonder on what basis they brought this suit before this Honourable Court.
Having shown above that they have no locus standi we therefore pray that this Honourable Court dismisses the Application with Costs.
Issue 2: What are remedies available to the parties?
As has been shown in these submissions, that where a party who brings up a suit cannot show with tangible evidence that he/she has capacity to do so such a suit is bad in law and is dismissed. We pray that this Honourable Court holds so and awards the respondents Costs they have incurred in defending themselves.
Costs;
Section 27 of the civil procedure Act cap 71 provides that the Court has discretion to determine costs and against whom.
In the suit of FERDINAND MUGISHA VS STEVEN BANYA AND THE REGISTRAR OF TITLES HCCS NO.833 OF 2007 (reported on ulii); Justice Percy Night Tuhaise clearly noted that the plaintiff had incurred a lot in filing a suit for removal of caveat and also pursuing the same. She went ahead and awarded costs of the suit to the plaintiff.
Similarly the respondents have incurred a lot since the Applicants instituted this Application. The legal fees paid to their lawyers and money spent on the days of Court sitting and follow up is money which must be reimbursed. They therefore pray that Court awards them Costs incurred as against the Applicants.
WHEREFORE, the respondents pray that Judgment be entered against the applicants and dismiss the application with Costs.
We so pray Your Lordship.
