[2025] UGHC 452

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DTVTSTON)

## Mtsc. APPLTCATTON NO. 905 0F 2021 (AR|STNG FROM CONSOLTDATED CIVIL SUrTS NO. 133 OF 2014 AND 229 oF 2018)

#### 1. KASOZIJOSEPH 2. KYAGABA CHARLES APPLICANTS

## VERSUS

#### THE REGISTERED TRUSTEES OF KAMPALA ARCHDIOCESE RESPONDENT

## Eefore: Hon. Ladv Justice Dr. Christine A. Echookit

#### RULING

## INTRODUCTION:

[1] The Applicants brought this Application for;

- a) Leave to amend their Written Statement of Defence in the consolidated suit. - b) Leave to file a counterclaim out of time, in this Suit.

## GROUNDS OF THE APPLICATION:

[2] The grounds in support of this application are set out in the affidavit in support and are briefly contained in paragraph 17 of the affidavit in support of the application to the effect that the Applicants were misguided by their then lawyers who left out facts that if the Written Statement of Defence was amended and a counterclaim not filed, it would render a miscarriage of justice. The draft amended Written statement of Defence was attached. The Applicants also prayed for leave to file a counterclaim out of time.

## REPRESENTATION AND HEARING:

[3] The Applicant was represented by M/s Sebanla & Co Advocates while the Respondent was represented by M/s Buwule & Mayiga Advocates. Both sides filed written ^ -- submissions that have been taken into consideration by the Court. W1

# ISSUES FOR DETERMINATION BY THE COURT:

- [4] The Applrcant raised one issue for determination by the ooutl - 1. Whether the application has disclosed sufficient cause for the amendment of the Written Statement of Defence in the Consolidated Suit?

# DETERMINATION OF THE ISSUES BY COURT:

ISSUE 1: Whether the application has disclosed sufficient cause for the amendment of the Written Statement of Defence in the Consolidated Suit?

## Submissions for counsel for the Applicant;

- [5] Courtsel for the Applicant prayed that the mistakes of the Applicants' counsel of mrsstng out important facts would render a miscarriage of lustice should the written statement of defense not be amended and the counterclaim not be filed. Counsel relied on the case of Namusisi Yozefina Vs David Kikaawa Misc. App No. 1595 of 2018 in this regard. - [6] Counsel for the Applicant further submitted that the main issue in the main suit is ownership of the suit land and that the amendment is necessary so as to resolve this issue. Counsel cited the case of Lubowa Gyaviiro & others Vs Makerere University HCMA No. 471 of 2009 wheretn it was held that,

'ht arnendmeri made before the commencetnent of the hearing should be allowed if it does no prejudice to the opposite parly; and that there would be no prejudice if the other party can be compensated",

# Submissions for counsel for the Respondent;

[7] Counsel for the Respondent argued that the proposed amendments are not necessary since they are already pleaded in the amended Written Statement of Defence on record filed on 14il,June 2019

- [8] Counsel proceeded to state that the proposed amendments in paragraph 4(e) of annexture Gl are already pleaded in paragraphs 4(e) of the Defendant's amended written statement of defence of 14th June 2019; that the proposed amendment in paragraph 4(l) of annexture Gl is already pleaded in paragraph 4(i) of the amended defence, that the proposed amendments in paragraph'1io) oi annexlLrre Glare pleaded rn paragraph 5 of the Amended Defence, that the proposed amendments in paragraph 4(p) of annexture Gl are already pleaded in paragraph 7 of the amended defence. Counsel submitted further that the proposed amendment especially in paragraph 4(q) of annexture Gl changes the character of the defence especially that of the 3'd Defendant and contradict with the 3'd Defendant's plea of estoppels earlier pleaded in paragraph 7 of the Amended Written Statement; and that the Defendants (including the 3'd Defendant) have always possessed a legitimate interest in the suit land. - [9] Counsel for the Applicants submitted in rejoinder that from the onset the 3,d Defendant does not have any interest in the suit land; that the proposed amendments do not in any way change the cause of action neither are the new amendments already pleaded in the counterclaim; and that the contents in the proposed amendment are not in any way ambiguous.

#### Consideration by court;

[10]The law regarding amendments of pleadings is laid out in Order 6 of the Clvil Procedure Rules. The purpose of the amendments is to enable parties alter their pleadings so that the real issues in controversy between thenr can be determined. The amendment can be allowed by courl at any stage of the pleadings in such manner and on such terms as may be just (Order 6 Rule 19 CPR).


- [1 1]The following considerations to be taken into account by a court before allowing amendment, - a) The amendment must not work an injustice to the other side. An injury which can be compensated by an award of costs is not treated as an injustice, - b) Multiplicity of proceedings should be avoided as far as possible and amendments which avoid multiplicity should be allowed. - c) An application which is made mala fide should not be granted. - d) No amendment should be allowed where it is expressly or impliedly prohibited by the law - e) The amendment sought to be made should not change the cause oi action substantially (Gaso Transport Services Ltd Vs Martin Adala Obene SCCA 411994; Namugenyi Margrate Ntabazi & Anor Vs Nambi Stella & 4 Ors (Misc. Application No.468 of 2016; Lubowa Gyaliira & Ors Vs Makerere University HCMA 471 of 2009). - [12]As regards the first element, I am of the view that although the proposed amendments seem to repeat some of the content in the amended Written Statement of Defence, the time and effort it has taken to accommodate the proposals be compensated with costs, so long as the Applicants do not lose the chance to present therr case better lfind it irrelevant to the present application, though, that the Respondent fatled to take reasonable steps to prosecute the main suit, as argued by counsel for the Applicant. This application thus passes the first test.

[13]Secondly, I believe that the amendment of the Written Statement of Defence would avoid multiplicity of surt. This is especially so as a counterclaim is involved.


- [14]As regards the third element, bad faith is usually inferred from late applications to amend, although of course, I am mindful that coutl may grant leave to make amendments to pleadings at any stage of proceedings so as to determine the real question in controversy between the parties. Counsel for the Respondent pointed out to court that the Written Statement of Defence has previously been amended ldeally all intended amendments ought to have been factored in during that process, failing which the parly intending to amend may run the risked of repeating themselves. This has actually happened when some of the proposed amendments are perused, vis a-vis the amended Written Statement of Defence. That said, the Applicants have the right to seek an amendment where they feel their Defence did not capture all the pertinent issues for trial. Hence, I am of the view that some mala fide is inferable from the Applicant's actions, and lnote with discomfort the delays in prosecuting the present application. - ['1 5] Lastly no amendment prohibited by law is allowed Where an amendment seeks to introduce a new cause of action or to deprive a party of an accrued right, it cannot be ente(ained. (See Namusisi Yozefina Vs David Kikaawa Misc. App No. 1595 of 2018) ln the present application, any attempts to depart from the original pleadings by way of an amendment will be frowned upon, as the party ought to know their case from the outset. Also, any part of the intended amendment that this court willfind rn the course of hearing as introducing a new cause of action or depriving the Respondent of any defence to the Plaintiff's counlerclaim. Will not succeed - [16]As regards the counterclarm, that the same should be filed with the Written Statement of Defence within 15 days from receipt of the summons (0rder 8 rule 2(1) of the Civil Procedure Rules (CPR)). I agree with counsel for the Respondent that the counterclaim should have been filed when the lastdefence in the consolidated suiton record wasfiled i.e on 4th June 2019. lf it was not filed then, it could be filed after an application for ry

enlargement of time under Order 51 rule 6 of the CPR and after good cause is shown (James Busonga Vs Victory Christian Center Misc. Application No. 466 of 2024; Dr. Wasswa Joseph Matovu Vs Makerere University & 2 Ors. SCCA No. 11of 202'l).

Counsel for the Applicant submitted that the amendment and filing of the counter claim out of time will not work any injustice to the Respondent that cannot be compensated; and that it is only intended to harmonize the counter claim with the Written Statement of Defense

[17] | note that some of the issues in the intended counterclaim are indeed similar to those in the head suit, as submitted by counsel for the Respondent. However, for the sake that there could be some merit in the counterclaim, this courl will grant the Applicant the opportunity to file it, with costs to be borne by the Applicants.

## DECISION OF COURT:

[18] ln the final result;

- a) This application is allowed. - b) The costs shall abide the outcome of the suit.

I so order

.d Dated at Kampala this... 23 oav ot Tll'lg zozs

W4d

Hon. Lady Justice Dr. Christine A. Echookit Judge.