Nantongo v Mutebi (Miscellaneous Application 224 of 2024) [2025] UGHC 60 (31 January 2025)

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THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KIBOGA MISCELLANEOUS APPLICATION NO. 0224 OF 2024) (ARISING FROM CIVIL SUIT NO.086 OF 2024)

EDISA NANTONGO (through her lawful attorney NABATEREGGA BEATRICE

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VERSUS

MUTEBI AMANSI KIBIBI

(Defending/suing through his lawful attorney

Rangiira Stephen

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BEFORE: HON. MR. JUSTICE KAREMANI JAMSON. K

RULING

Introduction.

Edsa Nantongo (hereinafter referred to as the applicant) brought this application under Order 52 Rules 1 and 2 of the Civil Procedure Rules (CPR), Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act (now section 37) against Mutebi Amansi Kibibi (hereinafter referred to as the respondent) seeking for the orders;

- 1. That Mutebi Amansi be produced before court and identified as to whether he is the one that signed and gave the Powers of Attorney to Mr. Rangiira Stephen to represent him in civil suit no. 20 of 2021 now civil suit no. 86 of 2024; - 2. That costs of the application be provided for.

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Grounds

The grounds of this application are set out in the application and the affidavit in support sworn by NABATEREGGA BEATRICE- the applicant but briefly are: -

- 1. That she is the legal representative of the plaintiff/applicant in civil suit no. 86 of 2024; - 2. That the respondent on the $19^th$ day of August 2024 purportedly gave powers of attorney to Rangiira Stephen of 0779018674; - 3. That in the said powers of attorney, the respondent is identified as Mutebi Amans Kibibi whereas in the National ID he is identified as Mutebi Amans; - 4. That the respondent on the national ID indicates that he is unable to sign whereas in the documents attached to the application vide misc. application no. 0205 of 2024 and sale agreements dated 15^th January 2015 he signed. - 5. That it is necessary for Mutebi Amansi to appear before court and be identified as to whether it is him that signed; - 6. That the documents attached on the application have different names vide Mutebi Amans aged 33 years whereas others have Mutebi Nyansio aged 37 years. - 7. That the transfers obtained from lands by court order the respondent is identified as Mutebi A. K whereas on the powers of attorney and national ID he is identified as Mutebi Amansi Kibibi and Mutebi Amansi

The respondent did not file an affidavit in reply.

When the matter came up for hearing on $18/11/24$ both parties were present in court and both counsel made oral submissions for consideration by this court.

Background.

The brief background of this application is that the applicant sued the respondent ( $3^rd$ ) defendant) and 4 others vide civil suit no. 86 of 2024 in this honourable court. In his defence, the respondent appointed Mr. Rangiira Stephen as his lawful attorney to represent him in civil suit no. $20/2021$ (now civil suit no. 86 of 2024). It is upon that background that the applicant brought this application.

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Representation

The applicant was represented by Mr. Rwalinda Jambo Godfrey while the respondent was represented by Mr. Kandeebe Geoffrey.

Issue for determination

Whether the respondent Mutebi Amans Kibibi should be produced before court and identified as the one who signed the powers of attorney to Mr. Rangiira Stephen in civil suit no. $20 \text{ of } 2021$ .

Submissions

The learned counsel for the applicant in his submissions reiterated the grounds of this application as already laid out above.

Learned counsel for the respondent submitted that Order 3 of the Civil Procedure Rules allows representatives to appear for parties and once the representative is in court, it cannot be the opposite party to demand personal appearance. Counsel submitted that the respondent Mr. Mutebi was hit by a stroke and he gave powers of attorney to Mr. Rangiira Steven.

In rejoinder, counsel for the applicant submitted that the application is not contesting the powers of attorney but rather that donor may not have issued the same.

Resolution

According to Osborn's concise law dictionary 11^th edition page 315, a power of attorney is a deed by which one person empowers another to represent or act in his stead generally or for a specified purpose. It is a document which grants authority of the principal to an agent to act on behalf of the principal. See also: Fredrick Zaabwe V Orient Bank Ltd and 5 Ors SCCA No. 004 of 2006, Serufusa Ronald V Zirimenya Jimmy and 2 Ors CACA No. 16 of 2013

Order 3 Rule 2 of the CPR, recognizes agents of parties by whom such appearances, applications and acts may be made or done are—

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- (a) persons holding powers of attorney are authorized by them to make such appearances and applications and do such acts on behalf of parties. - $(b) \quad \ldots \ldots \ldots$

From the above provisions and authorities, it means that a party holding powers of attorney on behalf of another is said to be his or her recognized agent. It only follows that the same can only be challenged if it is proved that they were obtained fraudulently or they are said to be invalid.

The powers of attorney herein were duly registered with the Uganda Registration of Services Bureau (URSB) which is a recognized agency for registering powers of Power in Uganda.

In paragraph 4 of the affidavit in support, the applicant contends that the respondent identified himself as Mutebi Amans Kibibi in the powers of attorney while the national Identity card contains the name Mutebi Amansi. The said national identity card was attached to the powers of attorney which were fully registered by URSB which prima facie implies that the registering authority was fully satisfied that the donor was the rightful person mentioned in the national identity card attached.

The applicant did not bring any evidence to show that the said Mutebi Amansi the holder of the national identification card (annexure B) is not the donor of powers of attorney.

It seems to me that the intention of the applicant is to challenge the authenticity of the documentation attached by the respondent to his written statement of defence and in so doing by comparing the same to the respondent's powers of attorney as a basis to oust the powers of attorney. This would in my view be misconstruction and a departure from the purpose and intention of powers of attorney. It would amount to lifting the veil of the powers of attorney in order to check behind the powers of attorney by demanding to see the donor who has assigned the rights and obligations in the suit. This can only be done after clear and strong reasons have been advanced but not just casually since would undermine the purpose of powers of attorney.

Jame Wan

In addition to the above, learned counsel for the respondent submitted that the respondent suffered a stroke. There being no affidavit in reply this fact remained a submission by counsel from the bar.

However, in donating powers to an attorney, the reasons of doing so are not emphasized. A party reserves a right to appoint an attorney. It cannot be questioned as to why it has been done. What matters is whether a proper procedure has been followed and the attorney has the legal capacity to perform the duties assigned.

I find no reason why the respondent should be compelled to appear in court in person to confirm whether he is the donor of the powers of attorney.

In conclusion and upon due consideration of the circumstances of this case, it is my finding that this application lacks merit and the is hereby dismissed with costs.

I so order

$+$ *Haw*

KAREMANI JAMSON. K

JUDGE $31/1/2025$ Court: The main suit is fixed for Scheduling on 03.04.2025 at 11:00 am

*Mani*

KAREMANI JAMSON. K JUDGE 31.01.2025