Filing a Law Suit on someone's behalf
Law suits or applications arising out of law suits can either be brought by a party in person or by his or her recognised agent as explained in Order 3 rule 1 of Uganda’s Civil Procedure Rules (CPR). Recognised agents are defined in Order 3 rule 2 of the said Rules as – “(a) persons holding powers of attorney authorising them to make such appearances and applications and do such acts on behalf of the parties; and (b) persons carrying on trade or business for and in the names of parties not resident within the local limits of the jurisdiction of the court within which limits the appearance, application or act is made or done, in matters connected with such trade or business only, where no other agent is expressly authorised to make and do such appearances, applications and acts”.
In other words, the CPR defines recognised agents as two types of people—
Those with powers of attorney: These are people who have been officially given written permission (through a legal document called a power of attorney) to file a law suit or application in court on behalf of someone.
Those carrying on trade or business for and in the names of someone who doesn’t reside in the place where his/her business is located: For instance, if a person owns a business in Gulu city but lives in Mbarara city, the person (e.g., a business manager) who’s running that business for the owner can file a law suit or application in a local court (i.e., a court of judicature in Gulu city which has the jurisdiction to hear that law suit or application) on behalf of the owner but only if – (i) the owner is not able to do so (e.g., maybe because of the long distance); (ii) the owner has not appointed someone else in writing to file the law suit or application on his or her behalf; and (iii) the law suit or application concerns matters of the business. (See the Ruling of Christopher Madrama Izama, J., as he then was in the case of Kibibu Engineering Co. Ltd & 3 Others v. Fanrong Ltd, High Court (Commercial Division) Miscellaneous Application No. 371 and 372 of 2016 arising from Civil Suit No. 121 of 2015)
However, a person who is “assigned” a right to sue and is authorised under a contract to do so in his or her name and not that of the assignor, does not need powers of attorney to exercise that right. In law, when someone is “assigned” any right, it means that the original owner of that right has legally transferred it to another person, allowing that other person to act as if they were the original owner. For example, if Lisa is owed money by a company but she assigns (in writing) her right to collect that money to Karen, then Karen can now demand payment from the company in her own name without needing Lisa’s permission each time. A good case to illustrate this point is Uganda Performing Rights Society v. MTN (U) Ltd, High Court (Commercial Division) Civil Suit No. 287 of 2010, where Hellen Obura, J., (as she then was) held inter alia that Order 3 rule 2(a) of the Civil Procedure Rules did not apply to the Uganda Performing Rights Society (the plaintiff therein) because the Performing Rights Society of the United Kingdom owned UB40’s performing rights (including the right to take legal action against any person for illegal performance of works) and had through a contract of reciprocal representation, assigned all of those rights to the plaintiff and even authorised the assignee/plaintiff to commence and pursue in its name (the assignee/plaintiff’s name) any legal action.
Order 7 rule 14(1) of the CPR provides that, “Where a plaintiff sues upon a document in his or her possession or power, he or she shall produce it in court when the plaint is presented, and shall at the same time deliver the document or copy of it to be filed with the plaint”.
A document that a plaintiff (i.e., a person who claims before a court of judicature that his or her right was violated and seeks civil remedies from the court) sues upon and a document that authorises someone to file a law suit or application on behalf of a plaintiff or applicant (whichever the case may be) are two different documents. A document that a plaintiff sues upon is one on which the plaintiff’s claim is based/founded—examples of such documents may include an employment contract, a contract for sale of goods, a receipt, a local purchase order, an email thread, a newspaper article etc. On the other hand, a document that authorises someone to file a law suit or application on behalf of a plaintiff or applicant, could for example be powers of attorney, or even a court order (e.g., one granting an individual full control over the estate of someone of unsound mind, which grant would also by default include the right to file a law suit or application on their behalf for as long as the claim concerns the estate).
Although Order 7 rule 14(1) of the CPR requires a plaintiff to annex a copy of the document(s) that he or she has sued upon to his or her plaint at the time of filing, a court of judicature may in its discretion allow a plaintiff to adduce such a document at trial (i.e., at the stage of hearing the evidence of the parties to a suit/case) or even at scheduling (i.e., at the stage of formulating the issues for determination). However, if a plaintiff chooses to use someone else to assist in filing a law suit on their behalf, and that person proceeds to file the law suit by way of plaint without attaching a copy of the powers of attorney to that plaint, a court of judicature will hardly overlook such an omission—reason being, it is the powers of attorney that authorise that person to file the plaint on behalf of the plaintiff so without them, a good case can be made out that that person had no authorisation to file the law suit (i.e., the plaint) on behalf of the plaintiff and is not the “recognised agent” of the plaintiff and therefore has no locus standi before the court.
The term locus standi means a right to appear in court and, conversely, as is stated in Jowitt’s Dictionary of English Law, to say that a person has no locus standi means that he or she has no right to appear or be heard in such and such a proceeding. (See Alfred Njau & 5 Others v. City Council of Nairobi, Court of Appeal (at Nairobi) Civil Appeal No. 74 of 1982)
“An issue on locus standi is a pure point of law that can properly be raised as a preliminary objection.” Dima Dominic Poro v. Inyani Godfrey & Anor, High Court (holden at Arua) Civil Appeal No. 0017 of 2016., per Stephen Mubiru, J.
A point of law is a legal issue that a court must decide (if raised as a preliminary objection by counsel or the parties to a suit) based on legal doctrines, statutes, or case law, rather than on facts or evidence. In other words, it is a point that is entirely legal in the sense that it does not need to be resolved with too much analysis or ascertainment of facts or evidence but rather its resolution is already provided for in statutes, legal doctrines, or in previously decided cases.
A preliminary objection consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings (i.e., the Plaint, the Written Statement of Defence or Counterclaim, and the Reply to the written statement of defence if any) and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation, or a submission that the parties are bound by the contract giving rise to the suit to refer the dispute to arbitration, or even an issue on locus standi. (See Mukisa Biscuit Manufacturing Co. Ltd v. West End Distributors Ltd [1969]1 E.A. 696)
It is good practice to raise an issue on locus standi or any other point of law as a preliminary objection at the start of a law suit. In other words, litigants should refrain from raising a preliminary objection on a point of law for the first time in an appellate court if it was never brought up in the lower court. This is not to say that an appellate court cannot consider a new point of law, but raising it earlier ensures that it is addressed in the judgment of the first court, reducing the chances of unnecessary delays or complications on appeal.
Returning to the aspect of attaching powers of attorney to a plaint, in the case of John Sebataana v. Abanenamer Yorakam & Anor, High Court (Land Division) Civil Suit No. 99 of 2005, a preliminary objection was raised by counsel for the defendants that the plaintiff (i.e., John Sebataana) had sued through attorneys yet there was no power of attorney annexed to the plaint. Murangira, J., had this to say:
“In the instant suit, the powers of attorney which gives the plaintiff the basis to sue the defendants is not annexed to the plaint. Counsel for the plaintiffs was graceful enough when he recognised that the power of attorney which was missing would have been the basis to sue the defendants. I, therefore, hold that the attorneys have no authority to sue the defendants. The attorneys, further, have no cause of action against the defendants. Wherefore, the attorneys instituted a suit against the defendants unlawfully. Thus, the plaint without plaintiffs cannot be sustained in law and that the same cannot be amended. In the result, I uphold the 2nd preliminary objection in the affirmative.”
In conclusion, if a plaintiff sues through someone without attaching a copy of the powers of attorney to the law suit at the time of filing, a court of judicature will hardly overlook the omission. This is because the powers of attorney serve as proof of authorisation, and without them, it can easily be inferred that that person lacked the authority to file the law suit on behalf of the plaintiff and is not the “recognised agent” of the plaintiff and thus has no locus standi before the court.
*Disclaimer: This Article is for informational purposes only and does not constitute legal advice. Should you require more detailed guidance on the topic of recognised agents or have specific questions, please do not hesitate to contact us via the email address info [at] kakuruadvocates.co.ug (info[at]kakuruadvocates[dot]co[dot]ug) *
