[2025] UGHC 477

### **THE REPUBLIC OF UGANDA**

### **IN THE HIGH COURT OF UGANDA AT LUWERO**

### **MISCELLANEOUS APPLICATION NO. 0141 OF 2024**

### **(ARISING FROM CIVIL SUIT NO. 968 OF 2020)**

- **1. LUBEGA AHMED KASUMBA** - **2. WAMALA BEDAH** - **3. MUWONGE HAKEEM WAMALA**

**4. NAKANWAGI FARIDAH ::::::::::::::::::::: APPLICANTS**

- **5. KIRIGWAJJO MOSES** - **6. COMMISSIONER LAND REGISTRATION**

### **VERSUS**

### **1. BADDA ELAISHA GRACE**

# **2. NANKYA JUSTINE :::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS BEFORE: LADY JUSTICE FARIDAH SHAMILAH BUKIRWA NTAMBI. RULING**

### **Background**

This Application was brought under Section 98 of the Civil Procedure Act, Section 33 of the Judicature Act, and Order 6 Rule 19 and 31 and Order 41 of the Civil Procedure Act, seeking orders to amend the Defence, Counterclaim and the Witness Statements of 1st -5 th Defendants and costs for the Application.

The grounds for the Application were laid out in the Affidavit in Support of the Application which was deponed by Lubega Ahmed Kasumba.

The Respondents opposed the Application through an Affidavit in Reply deponed by Badda Elaisha Grace and prayed that this application be dismissed with costs.

### **Representation**

The Applicants were represented Matovu N. J & Co. Advocates while the 1st -5 th Respondents were represented by SK Sebowa & Co. Advocates.


### **Determination of the Application**

The parties raised two issues for determination which I shall adopt to wit;

- 1. Whether the Affidavit in support of the Application at hand is defective for being deponed by the 1st Applicant on behalf of the 2nd -5 th Applicants without written authorisation. - 2. Whether the Applicant has grounds to warrant the grant of leave to amend their Defence, Counter claim and Witness statements.

#### **Issue 1: Whether the Affidavit in support of the Application at hand is defective for being deponed by the 1st Applicant on behalf of the 2nd -5 th Applicants without written authorization.**

### Submissions by parties

Counsel for the Respondent raised a preliminary point of law to the effect that the Affidavit in Support of this Application is defective for being deponed by the 1st Applicant on behalf of the 2nd -5 th Respondents without any written authorisation or in the alternative, with a defective written authorisation. In paragraph 1 of the Affidavit in support of the Application, the 1st Applicant avers that he has authority from the 2nd - 5 th Applicants to give evidence on their behalf and thereto attached a copy of the authority. However, that the said authority is incurably defective on the following grounds;

- a) The authority attached is in respect of Miscellaneous Application No. 1836 of 2020 arising out from Civil Suit No. 968 of 2020 and not Miscellaneous Application No. 0141 of 2024 arising out from Civil Suit No. 968 of 2020 which is the Application before court. - b) The said authority was drafted and filed in 2021 long before this Application was filed and makes no mention about the current application.

For the foregoing reasons, Counsel for the Respondents prayed that the Court finds that the authority relied on by the 1st Applicant is defective and should be struck out. He relied on Order 1 Rule 12 of the Civil Procedure Rules and the case of **Taremwa Kamishana Tomas V Attorney General, Vincent Kafero & 11 others V Attorney General Miscellaneous Application No. 48 of 2012.**

In reply, Counsel for the Applicants submitted that the Application before court is supported by an Affidavit and a duly signed authority by the 2nd -5 th Applicants authorizing the 1st Applicant to give evidence on their behalf. Counsel for the Applicants further submitted that the authority that was given to the 1st Applicant by the 2nd -5 th Applicants to give evidence on their behalf addresses all proceedings arising from Civil Suit No. 0146 formerly No. 968 of 2020.

### Decision of the Court

An affidavit can be defined as a written or printed declaration or statement of facts made voluntarily and confirmed by the oath or affirmation of the party making it, taken before an officer having authority to administer such oath. **See Black's Law Dictionary 8th Edition30 pg.178; Namutebi Matilda Vs Ssemanda Simon and 2 Others, Misc. Application No.430 of 2021**.

In their written submissions, Counsel for the Respondents submitted that an affidavit without authority is defective and cited several authorities in support of that proposition. The Applicants' counsel countered this submission by stating that there was authorisation that was given by the 2nd -5 th Applicants to have the 1st Applicant give evidence on their behalf.

I do agree with Counsel for the Applicants that indeed there is written authorisation given to the 1st Applicant to give evidence in respect of any matter that arises out of Civil Suit 968 of 2020 (hereinafter referred to as the main suit). This Court has held that an affidavit is evidence that is presented before the Court and not an ordinary pleading **(See Dr. Lam Lagoro James v Muni University HCMC No. 07 of 2016**). That being the case, the 1st Applicant's authority applies in the instant Application


which arises from the main suit and as such the affidavit in support of this Application is valid.

In any case, as it now stands, the Courts have held that the act of rendering affidavits without authority defective has no basis in the rules of evidence and procedure. Modern precedent has now distinguished the decisions requiring an affidavit to bear authorization. It is now posited that an affidavit in support is evidence and does not require authorization but rather knowledge of the deponent. **(See Namutebi Matilda Vs Ssemanda Simon & Other Supra**).

The preliminary objection raised by Counsel for the Respondents is overruled and I shall move on to determine this Application on its merits.

## **Issue 2: Whether the Applicant has grounds to warrant the grant of leave to amend their Defence, Counter claim and Witness statements.**

### Submissions by the parties

Counsel for the Applicants submitted that in the instant case, the Applicants seek to amend the defence, counter claim and the witness statements of the 1st -5 th Applicants. That this Application was brought without inordinate delay and no prejudice shall be suffered by the Respondents if the same is granted. Counsel went on to submit that if there is any inordinate delay, the same should be visited upon the counsel who was handling the matter at the time and not the Applicants.

Counsel for the Applicants went on to submit that the Application has been brought in good faith, whereby the Applicants seek to clarify and rectify what they perceive to be true. Counsel submitted that what the Applicants seek to clarify is that they purchased the suit land and have lived thereon for over 41 years and not what is stated in their Written Statement of Defence that they are owners of the suit land by virtue of being adverse possessors. He further submitted that allowing the Applicant to clarify the exact material facts relevant to the main suit will avoid a multiplicity of suits and will enable this Honourable Court to determine the real question in issue between the parties with finality.


In reply, Counsel for the Respondents submitted that the Applicant has no grounds to warrant the grant of leave to amend their defence, counter claim and witness statements. Counsel submitted that the instant Application is malafide, bad at law, intended to delay the completion of the main case and is brought with inordinate delay and as such should be dismissed. According to the Respondents, the Applicants have always had the documents which the Applicant alleges are erroneous or contain mistakes since 2020 and there is nothing new to them and nothing has been offered by the Applicant to account for the undue delay in filing the application at hand.

Counsel for the Respondents further submitted that this Application is intended to waste Court's time and delay the conclusion of this case which was filed in 2020.

#### Decision of the Court

I have carefully read and considered the parties' submissions. The law on the amendment of pleadings is governed by **Order 6 Rule 19 of the Civil Procedure Rules** which states that;

*"The court may at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties"*

*(*Emphasis is mine)

The Supreme Court in **Gaso Transport Services (Bus) Ltd V Martin Adala Obene Supreme Court Civil Appeal No.4 of 1994**, Tsekeko JSC laid down the following principles which govern the exercise of discretion in allowing amendments:

- *i) The amendment should not work injustice to the other side. An injury that can be compensated for by way of costs is not treated as an injustice.* - *ii) Multiplicity of proceedings should be avoided as far as possible and all amendments, which avoid such multiplicity should be allowed.*


- *iii) An application which is made malafide should not be granted.* - *iv) No amendment should be allowed where it is expressly or impliedly prohibited by any law.*

This Court may allow amendments of pleadings before trial or even during trial as long as the amendment shall not prejudice the other party and cause an injustice and as long as the other party can be compensated by costs. **See Gaso Transport Services**

### **V Martin Adala Obene Supra.**

From the onset, I would like to point out that the Applicant's Counsel, when drafting this Application and the supporting Affidavit omitted to attach the proposed amended Written Statement of Defence and Counter Claim to the Application and instead argued that it was not a mandatory requirement of the law to do so. Whereas I agree that attaching a proposed amended pleading is not a mandatory requirement of law in applications of this nature, it is a good and desirable practice for an Applicant in such an application to file a proposed amended pleading showing the amendments in red ink or by underlining the intended changes. (**See Hasham Meralli vs Javer Kassam & Sons Ltd [1957] EA 503 and Meru Farmers' Co-operative Union vs Abdu Aziz Suleman (No. 1) [1966] EA 436**). This practice makes it easier for the court to contextualize the desired amendment and make an appropriate order in the circumstances. It is settled law that the Court is bound by the pleadings of the parties as has been held in **Amos Byamukama and Another v Kompaire Civil Appeal 42 of 2021**. This means that where a party makes an application to court, the court shall restrict itself to the contents of the pleadings with respect to that Application. This is why the parties intending to make an application of this nature must attach the original pleading together with the proposed amended pleading.

Moving on, from the pleadings of the Applicant on record, I have been able to gather that the Applicants wish to amend their Written Statement of Defence and Counter Claim. Unfortunately, the Applicant did not attach the proposed amended Written Statement nor the proposed amended Counter Claim. The Applicants wish to amend paragraphs 8 of the Written Statement of Defence and 12(c) of the Counterclaim as


evidenced in paragraphs 5, 6, and 7 of their Affidavit in Support of the Application which state;

*"5. THAT paragraph 8 of the WSD states that the 1st -5 th defendants aver and contend, that by virtue of registration of their predecessor in title in 1979 and having been in possession thereof for over 41 years, the 1st to the 5th defendants claim that the plaintiffs have no cause of action against them in so far as they are in adverse possession of the suit land for over 41 years.*

*6. THAT on the other hand paragraph 12 (c) of the counter claim states that a declaration that the 1st -5 th defendants are owners of the suit property by adverse possession having owned and occupied the suit land uninterrupted for over 41 years.*

*7. THAT I wish to inform this honorable court that paragraph 8 of the WSD is not wholly true and also not whole in line with my facts as in we have never been adverse possessors but we lawfully purchased the suit land and the same applies to paragraph 12(c) of the counter claim."*

(Emphasis is mine)

From the above extract, it is clear that the Applicants are trying to amend paragraphs 8 and 12 (c) of their Written Statement of Defence and Counter Claim respectively, which initially informed court that they were in adverse possession of the suit land for over 41 years. They wish to have the above paragraphs amended to reflect that they have never been adverse possessors but lawfully purchased the suit land.

Having determined the intended amendment by the Applicants, I shall now determine if it meets the test laid out in **Gaso Transport Services (Bus) Ltd V Martin Adala Obene Supra.**On the test of whether the intended amendment will prejudice the Respondents, I am of the view that it will indeed cause prejudice. Under Paragraph 9 (f) of the Affidavit in Reply, the Respondents who are the Plaintiffs in the main suit have presented all their evidence and the Court has closed their case and is moving on to entertain the Applicants/Defendants/Counter claimants' case. The introduction of a


new fact that the Applicants are not adverse possessors but acquired the suit land through purchase denies the Respondents an opportunity to rebut this fact since they have closed their case. This actually amounts to trial by ambush which is repugnant to **Article 28 (1) of the Constitution of the Republic of Uganda** as there can be no equality between the contestants in a trial by ambush and therefore no fairness. **See Soon Yeon Kong Kim and Another vs. Attorney General, Constitutional Reference No. 6 of 2007.**

I am also convinced that this Application was not brought in good faith. This is mainly because of the timing of the Application. The main suit was instituted sometime in 2020. The hearing commenced and the Plaintiffs presented their evidence after which the court closed the Plaintiffs' case. All this happened in a time frame of about 4 years since the suit was commenced. What is interesting is that the Applicants/Defendants have only remembered to file the Application for the amendment of pleadings four years after the suit commenced and after the Plaintiffs' case has been closed. I am not convinced by the argument made by the Applicants under paragraphs 4 of the Affidavit in support of this Application that the material facts were mistakenly represented by their former lawyers in the defence, counter claim and witness statements. This is because the evidence on record shows that the 1st Applicant understands English and is presumed to have understood his case that was made to court. This was the Applicants' case and the lawyers were simply acting under their instruction.

For the foregoing reason, I find that this Application is devoid of merit and is hereby dismissed with costs to the Respondents.

I so order.

**…………………………………..**

### **FARIDAH SHAMILAH BUKIRWA NTAMBI**

### **AG. JUDGE**

Delivered on ECCMIS this 4th day of July 2025