[2021] UGHCLD 99

## **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (LAND DIVISION)**

### **MISCELLANEOUS APPLICATION NO. 898 OF 2020 (***ARISING FROM H. C. C S NO. 2370 OF 2016)*

### **1. MABBERI ALLEN BLESSINGS (SUING THROUGH HER LAWFUL ATTORNEY JULIUS BITERA)**

**2. BANK OF AFRICA UGANDA LTD::::::::::::::::::::::::APPLICANTS VERSUS**

# **SEREMBA DONALD ALIIAS DON MUWANGUZI :::::::::RESPONDENT BEFORE HON. JUSTICE NYANZI YASIN**

### **RULING**

- 1. This applicant was brought by Notice of Motion under Section 98 of the Civil Procedure Act Cap 71, O. 6 rule 28 and 29 of the CPR, O. 7 rule 11(e) of the CPR and O. 52. rr. 3 and 6 of the Civil Procedure Rules SI 71-1 for orders that; - (a) The amended plaint in H. C. C. S NO. 2370 of 2016 is materially defective, an abuse of court process and in contravention of the principles governing the amendment of pleadings since the amendments were crafted to reframe the Respondents claim in H. C. C. S No. 222 of 2015 - (b)The plaint in H. C. C. S No. 222 of 2015 was filed by a non- existent person - (c) Costs of this application be provided for. - 2. The grounds of this application are more particularly set out in the Affidavit of JULIUS BITERA ( the lawful attorney of Mabberi Allen Blessings) and they are given below; - (i) Bank of Africa (U) LTD filed H. C. M. C No. 27 of 2015 Nakawa for orders against DON MUWANGUZI to vacant the suit premises comprised in kyadondo Block 194 plots 271 and 274 land at Kungu- Buwate. - (ii) DON MUWANGUZI filed an affidavit in reply in H. C. M. C No. 27 of 2015 Nakawa) wherein he avers that he is just a tenant without any proprietary interest in the suit premises described above. - (iii) The Respondent SSEREMBA DONALD filed H. C. M. A No. 398 of 2015 to be added as a Respondent in H. C. M. C No. 27 of 2015 - (iv) The Respondent SSEREMBA DONALD filed an affidavit in support in H. C. M. A No. 398 of 2015 ( arising from H. C. M. C No. 27 of 2015) wherein

he avers that he is an aggrieved purchaser of the mortgaged suit premises described above and he was surprised to learn the Bank of Africa (U) Ltd was attempting to evict his tenant DON MUWANGUZI

- (v) The Respondent SSEREMBA DONALD subsequently filed an affidavit in reply in H. C. M. C No. 27 of 2015 wherein he avers that he is an aggrieved purchaser of the mortgaged suit premises described above and he was surprised to learn that BANK OF AFRICA (U) LTD had gone behind his back to sell the suit premises described above to ALLEN BLESSINGS MABBERI - (vi) The Respondent SSEREMBA DONALD filed H. C. C. S. No.222 of 2015 for specific performance of the sale agreement entered into with BANK OF AFRICA (U) LTD and an order directing the Registrar of Titles to cancel the entry of ALLEN BLESSINGS MABBERI on grounds that her registration was procured fraudulently to defeat the Respondent's equitable interest as an aggrieved purchaser of the mortgaged property - (vii) The two matters were forwarded to the High Court/Land division when Nakawa High Court Circuit was disbanded. H. C. C. S No. 222 of 2015 became H. C. C. S No. 2370 of 2016; and H. C. M. C No. 27 of 2015 became H. C. M. C No. 2036 of 2016 - (viii) On April 24, 2017, the Hon. Lady Justice Damalie Lwanga consolidated the two matters and ordered the parties to file their amended pleadings - (ix) The first amended plaint in H. C. C. S No. 2370 of 2016 was filed on August 18, 2018 and the second amended plaint was filed on June 22, 2020 wherein the Respondent introduced a new cause of action for trespass to goods and the facts giving rise to the Respondents claim were changed in total disregard of the principles governing the amendment of pleadings - (x) The Respondent abused the legal process for an unlawful objective not to assist court to determine the real issues in controversy between the parties - (xi) As deponed to in the affidavit evidence on record, SSEREMBA DONALD and DON MUWANGUZI are totally different and distinct persons. - (xii) That DON MUWANGUZI later swore a deed poll on August 26, 2015, and fraudulently attempted to assume the personality of SSEREMBA DONALD way after the cause of action had been filed in H. C. C. S No. 222 of 2015 - (xiii) As such H. C. C. S No. 222 of 2015 and all subsequent amendments are materially and incurably defective.

#### **AFFIDAVIT IN REPLY**

- 3. In the affidavit in reply sworn by SSEREMBA DONALD he averred that; - (i) At the earliest time possible, they shall raise a preliminary objection to the extent that the deponent is by law precluded from raising such issues in her application. - (ii) That the applicant was present when court granted an interim order on 16th of December, 2015, well aware of the suit with no excuse whatsoever of not having filed a defence in time. - (iii) That on 28th August 2015, 10th September, 2015 the applicant instructed various Law firms to represent her in the respondent's case but the written statement of defence was filed on 7th July, 2020, almost after 5 years. - (iv) That the applicant never participated in any filing of pleadings whatsoever save for 2020 when she filed her written statement of defence. - (v) That at the time of consolidation of H. C. M. C No.27 of 2015 and HCCS No. 222 of 2015, despite the applicant's presence when the interim order was being granted, she never filed any pleadings in court - (vi) He averred under paragraph 12 of his affidavit that if any party was aggrieved, it ought to have been Bank of Africa Uganda Limited and Anthony Mupere who had then filed a joint written statement of defence when the amendment was done and not the applicant who never filed any then - (vii) He stated under paragraph 13 that the applicant is not coming to court with clean hands as she has not attached her first written statement of defence if any in response to the first pleadings he filed which the applicant alleges the respondent unlawfully departed from. - (viii) Under paragraph 14 the respondent averred that paragraph 3, 4, 5, 6 and 9 of the affidavit in support arise from a consolidation consent order of the suits between the respondent Bank of Africa Uganda Limited and a one Anthony Mupere of Armstrong Auctioneers and Court Bailiffs in then HCMC No. 27 of 2015 and HCCS No. 222 of 2015 ( now HCCS NO. 2370 of 2016 and touch the merits of the main case requiring leading of evidence to the effect - (ix) He said under paragraph 15 that the applicant herein is procedurally wrong by indirectly and literally applying to court to review the consolidation

consent order which she never participated in by motion of this instant application with a grave effect on the suit

- (x) He averred under paragraph 16 that the affidavit in support relates to fraud which cannot merely be proved by affidavit - (xi) In reply to paragraph 10 of the applicant's affidavit in support the respondent under paragraph 17 stated that; - The Applicant locked herself out of the proceedings when she declined to file necessary responses in 2015 since she even appeared in court when the interim order was granted on 16th December 2015 - The Applicant is precluded by law to use the procedure she adopted herein to raise her objections having not participated in the initially filed pleadings - The changes in the facts giving rise to the claim of alleged trespass to goods only came in when he was arrested by police on charges orchestrated by the Applicant and Bank of Africa Uganda Limited in a Criminal Case Vide KRA-CO-1294/15 arising from CRB 318/2015 now Criminal Offence No. 0416 of 2016 to have me leave the suit land since the respondent was in physical occupation of the suit land as per the interim Order were the Applicant couldn't take possession. - The arrest that was effected on the respondent in the said criminal case led to his unlawful and illegal eviction since he was without a court order evicted by way of arrest on partly the applicant's setting the criminal law justice system in motion and the respondent's church property vandalized - The said unlawful eviction was done in his absence as he was arrested and only produced in court on 23rd December 2016 when he was granted bail. - (x) He stated under paragraph 18 of his affidavit that paragraph 2 and 3 of the applicant's supplementary affidavit in support, the applicant was not a party in Miscellaneous Cause No. 2036 between Bank of Africa Uganda Limited and her participation was thus not called for - (xi) He said under paragraph 19 that despite court having directed the parties to amend their pleadings, the applicant having been aware of the case, chose to stay away from the proceedings by deliberately not filing a written statement of defence which would give her latitude to raise objections then, despite having instructed several lawyers

- (xii) He stated under paragraph 20 that in 2017 when court directed the 1st amendment, it's when the respondent had been granted bail and found that his property had been vandalized by the applicant who was present when court issued the interim Order in 2015 - (xiii) That since he was unlawfully evicted in absentia and his property vandalized in violation of the interim order that had been issued, court having granted a consolidation and amendment of pleadings, he had to amend his case to reflect that property he lost in his church business for all issues to be resolved at once. - (xiv) The respondent averred under paragraph 22 of his reply that lawyers filed an amended plaint in court in total agreement with opposite lawyers of Bank of Africa Uganda Limited and Anthony Mupere with the items he lost as special damages inclusive of other facts as a result of the unlawful eviction that was done in his absence a fact that can help this Honorable Court in resolving all issues arising out of the said suit which has since not been challenged by the parties that were present when the amendment was directed - (xv) He stated in paragraph 23 that had he not been unlawfully evicted, despite the existence of the interim order, his then lawyers could not have sought to amend the pleadings to include the items he lost factually without the consent of the opposite party. - (xvi) In affidavit in reply under paragraph 24 the respondent said that the opposite parties and their lawyers knew he was still in occupation of the suit land that is why they believed he would fail terribly since they knew he was still in possession of the suit land. - (xvii) He averred in paragraph 25 that the amendments were sanctioned by the parties who moved court and entered a consent on amendment and the amendments done were within the law. - (xviii) The respondent under paragraph 26 replied to paragraph 10.3, 12.3, 13, 14 & 15 of the applicant's affidavit in support of the motion and stated that; - He only clarified on which names he wanted to use a fact that was in the knowledge of the Applicant and all other parties involved in the transactions relating to his land, even for the consolidation of the suit that was done in 2017 and first amended plaint done in 2018 as the Deed Poll was of 2015 speak for themselves.

- He was formerly using SSEREMBA DONALD a name he also shared with his nephew long before he even purchased the suit property that was registered in the names of DON MUWANGUZI - He held a passport in the names of SSEREMBA DONALD that was issued to him on 26th March, 2004 which was expiring on 26th March, 2014 - When his passport in the names of SSEREMBA DONALD expired in 2014, he used his other name of DON MUWANGUZI to obtain a passport that was issued on 3rd November, 2015 which now expires on 3 rd November, 2025 - During his transaction with BANK OF AFRICA UGANDA LIMITED and ANTHONY MUPERE, the Bank's agent in respect of his property, all his names were in their knowledge at all material times - Even when the Applicant and Bank of Africa in the Criminal Case at Buganda Road Vide KRA-CO-1294/15 arising from CRB 318/2015 now Criminal Offence No. 0416 of 2016 were testifying in Court, the Bank's employee a one DANDE O. PHILLIP clearly demonstrated in statement at Police that the names Don Muwanguzi and SSEREMBA DONALD was one person whose names belonged to the respondent - On 23rd September 2015, the applicant through her purported Donee BITERA JULIUS recorded a statement at police Vide KRA-CO-1294/15 arising from CRB 318/2015 now Criminal Offence No. 0416 of 2016 clearly stating that "… I wish to add to the statement he earlier made at police that one called SSEREMBA DONALD is the same person called DON MUWANGUZI." - The Applicant's Donee BITERA JULIUS clearly shows in his additional statement that when he reported him to the Bank that sold the property to them, the Bank informed them that SSEREMBA DONALD and DON MUWANGUZI was one person who was the respondent. - (xix) He averred further under paragraph 27 of the affidavit in reply that the Applicant before and at the time of filling her impugned written Defence on 7th July 2020, the applicant was well aware that SSEREMBA DONALD and DON MUWANGUZI was one person who was the respondent. - (xx) The respondent also stated that he partly paid money to purchase the said property as SSEREMBA DONALD and continued to pay through Church

Members a fact that is partly acknowledged in the Police Statements clearly demonstrating that SSEREMBA DONALD also known as DON MUWANGUZI was an existent person.

#### **4. SUPPLEMENTARY AFFIDAVIT**

- 5. The 2nd applicant in the affidavit sworn by Julius Kyamanywa filed a supplementary affidavit in support. In his supplementary affidavit said; - (a) That the 2nd applicant Bank in exercising its rights as the registered mortgagee sold the mortgaged property comprised in Kyadondo Block 194 plots 271 and 274 land at Kungu- Buwate to the 1st applicant - (b)That in order to get vacant possession, the bank filed HCMC No. 27 of 2015 seeking eviction orders against DON MUWANGUZI to vacant the suit premises compromised in Kyadondo Block 194 plots 271 and 274 land at Kungu Buwate - (c) That in response DON MUWANGUZI filed an affidavit in reply in HCMC, No. 27 of 2015 Nakawa wherein he avers in paragraph 5 and 6 that he is just a tenant of a one SSEREMBA DONALD without any proprietary interest in the suit premises described above. - (d)That SSEREMBA DONALD subsequently filed HCMA No. 398 of 2015 to be added as a respondent in HCMC No. 27 of 2015 - (e) That in support of HCMA No.398 of 2015 (arising from HCMC No. 27 of 2015 SSEREMBA DONALD filed an affidavit wherein he avers in paragraphs 1, 2, 3, 4, 5, 6, 7, & 9 that he is an aggrieved purchaser of the mortgaged suit property described above and he was surprised to learn that Bank of Africa (U) Ltd was attempting to evict his tenant DON MUWANGUZI - (f) That SSEREMBA DONALD subsequently filed an affidavit in reply in HCMC No.27 of 2015 wherein he avers in paragraph 1, 2, 3, 4, 5, 6, 7, & 9 that he is the legitimate owner of the property, had rented it out to DON MUWANGUZI and that he was surprised to learned that BANK OF AFRICA (U) LTD had gone behind his back to sell the suit premises described above to ALLEN BLESSINGS MABBERI. - (g)That SSEREMBA DONALD also filed HCCS No. 222 of 2015 for specific performance of the sale agreement entered into with the Bank and further sought orders directing the Registrar of Titles to cancel the entry of the 1st Respondent on grounds that her registration was procured fraudulently to

defeat his equitable interest as an aggrieved purchaser of the mortgaged suit premises described above

- (h)That the respondent Don Muwanguzi under the alias SSEREMBA DONALD (Sic the respondent Don Muwanguzi read as Sseremba Donald) filed HCCS No. 222 of 2015. - (i) That the two matters were forwarded to the High Court/ Land Division when Nakawa High Court Circuit was disbanded and HCCS NO.222 of 2015 was re-registered as HCCS 2370 of 2016; and HCMC No. 27 of 2015 was re-registered as HCMC No. 2036 of 2016 - (j) That on April 24th, 2017, the Hon Lady Justice Damalie Lwanga consolidated the two matters and ordered the parties to file their amended pleadings - (k)That the first amended plaint in HCCS No. 2370 of 2016 was filed on August, 2018 wherein the respondent: - Introduced a new cause of action for trespass to goods in Paragraph 7 & 8, 9, 10 & 11 of the first amended plaint. - Changed the facts giving rise to his claim by introducing a new cause of action for illegality and contending in paragraph 3, 4, and 5 of the first amended plaint that the mortgage created over the suit property described above was illegally attributed to him as the registered proprietor. - Applied for a change of name in paragraph 4 (d) and (e) of the first amended plaint to formally identify SSEREMBA DONALD as DON MUWANGUZI

(L) He averred that in the second amendment;

- The Respondent changed the facts giving rise to his claim by introducing a new cause of action for illegality and contending in paragraph 6 and 20 of the 2nd amended plaint that the mortgage created over the suit property described above was illegally attributed to him as the registered proprietor and disposed of in total disregard of an order of court - The respondent introduced the new cause of action of trespass to goods in paragraphs 12, 13, 14 and 15 of the second amended plaint - The respondent applied for a name change in paragraph 6(i) and (j) of the second amended plaint to formally identify SSEREMBA DONALD as DON MUWANGUZI

- (M)He said that the amendments were introduced to deny the respondents sworn affidavit evidence on record in HCMC No. 2036 of 2036 (formerly HCMC No. 27 of 2015 - (N) That there is no proper suit before this court since SSEREMBA DONALD was a non- existent person and could not maintain an action at the time of filing HCCS No. 222 of 2015 - (O) That a suit filed in the names of a non-existent plaintiff and in contravention of the principles of amendment of pleadings cannot be cured by an award of costs or amendment of the pleadings - (P) That it is just and equitable that the amended plaint in HCCS No.2370 of 2016 be struck out because it is materially defective, an abuse of court process and in contravention with the principles governing the amendment of pleadings - (Q) That hereto support that an application for an order that the amended plaint in HCCS. NO.2370 of 2016 is materially defective, an abuse of court process and in contravention with the principles governing the amendment of pleading.

#### **6. AFFIDAVIT IN REJOINDER**

- 7. Julius Bitera the applicant in specific reply to paragraphs 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18 and 19 averred that; - SSEREMBA DONALD filed HCCS No. 222 of 2015 for specific performance of the sale agreement entered into with BANK OF AFRICA (U) LTD and an order directing the Registrar of Titles to cancel the entry of ALLEN BLESSINGS MABBERI on grounds that her registration was procured fraudulently to defeat his equitable interest as an aggrieved purchaser of the mortgaged suit premises comprised in Kyadondo Block 194 plots 271 and 274 land at Kungu Buwate - ALLEN BLESSINGS MABBERI was joined as a 3rd defendant as indicated in the original plaint filed in HCCS NO. 222 of 2015. - 8. In rejoinder to paragraphs 4, 5, 6, 7, 8, 9, 10, 11,12, 13, 14, 15, 17, 18 & 19 the 1st applicant stated that; - Where a suit has been duly instituted, the plaintiff is supposed to serve the defendant in a manner prescribed to enter appearance and answer the claim - ALLEN BLESSINGS MABBERI was not served with summons issued on behalf of SSEREMBA DONALD to enter appearance and answer the claim in HCCS No. 222 of 2015 - The summons issued on behalf of SSEREMBA DONALD were not served on the advocates instructed to receive summons on behalf of ALLEN BLESSINGS MABBERI - The respondent did not annex an affidavit of service to show how the summons was served on ALLEN BLESSINGS MABBERI in HCCS No. 222 of 2015 - ALLEN BLESSINGS MABBERI was only served through M/S Oetus Advocates when counsel for the Respondent served the second amended plaint on 22nd June 2020 - Service of court process was effected after the Honorable Mr. Justice Nyanzi Yasin ordered counsel for the respondent to effect service of pleadings on all parties when the main suit came up for hearing on 12th March 2020 - M/S Ortus Advocates prepared and filed the 3rd defendant's written statement of defence wherein counsel intimates that the 3rd defendant shall raise preliminary objections at the earliest opportune time. - 9. Further in rejoinder to paragraph 16. 17, 18, 19, 20, 21, 23, 24, 25, 30, 31 & 32 he averred that; - The amendment was made in bad faith with a view of changing the nature of the action into one of a substantially different character to the prejudice of the Applicant - SSEREMBA DANALD filed HCCS No. 222 of 2015 for specific performance of the sale agreement entered into with BANK OF AFRICA (U) LTD and an order directing the Registrar of Titles to cancel the entry of ALLEN BLESSINGS MAMBERI on grounds that her registration was procured fraudulently to defeat his equitable interest as an aggrieved purchaser of the mortgaged suit premises comprised in Kyadondo Block 194 plots 271 and 274 land at Kungu Buwate.

- In paragraph 4 of the original plaint in HCCS No. 222 of 2015, it is stated that SSEREMBA DONALD purchased the mortgaged suit land described above from BANK OF AFRICA (U) LIMITED and rented out the property to its previous owner DON MUWANGUZI for a period of two years with a view of generating money. - In paragraph 4(g) of the original plaint in HCCS No. 222 of 2015, it is stated that DON MUWANGUZI the previous owner of the mortgaged suit premises described above was a tenant of SSEREMBA DONALD - In paragraphs 1, 2, 3, 4, 5, 6, &7 of the affidavit in reply in HCMC No. 27 of 2015 (remunerated HCMC No. 2036 of 2016 Don MUWANGUZI deponed to the fact that he defaulted on the mortgage facility and claims no proprietary interest in the mortgaged suit premises described above. - When the Hon. Lady Justice Damalie Lwanga consolidated the two matters and ordered the parties to file their amended pleadings, the respondent filed an amended plaint that set up an entirely different claim in place of the original cause. - In the first amended plaint under paragraph 4(d) & (e ), the respondent applied for a name change to formally identify SSEREMBA DONALD as DON MUWANGUZI - The respondent went further to state in paragraphs 3, 4, & 5 of the first amended plaint and in paragraphs 6 & 20 of the second amended plaint that the mortgage created over the suit property described above was illegally attributed to him as a registered proprietor and disposed of in total disregard of an order of court. - From the onset and from the affidavit evidence on record, SSEREMBA DONALD and DON MUWANGUZI are totally different and distinct persons - The applicant averred under paragraph 6 that a statement recorded by police during an investigation is inadmissible as substantive evidence in a civil trial and cannot be used for the purpose of corroboration or as substantive evidence because such statements are not made during trial, not given under oath, nor are they tested by cross-examination - She prayed that the Honorable court grants the applicant's prayer for an order to dismiss the amended plaint and all interlocutory application arising therein.

- 10. Simon Peter Kinobe together with Mr. Makumbi appeared for the 1st applicant, Semakula Muganwa represented the 2nd applicant and Isaac Nicholas represented the Respondent. - 11. Both sides made oral submissions.

## **12. SUBMISSIONS**

## *(On the court question)*

- 13. Counsel for the respondents submitted that Don Muwaguzi was a tenant and Section 115 of the Evidence Act permit this suit to proceed. This is obtained from the affidavit in reply vide Miscellaneous Cause No. 27 of 2015 dated 30th March 2015 and marked as Annexure 'c' of the instant application. He made reference to paragraph 5 and 6 and averred that there is a purported tenancy agreement. He submitted that the tenancy agreement was made on the 1 st of June 2013 and when you look at clause 1 it states that in consideration of the rent herein after reserved and any of the covenants on the part of the tenant herein after contained, the landlord demands….. the tenants the said premises to forward the same onto the tenant for a term of two years commencing 1st June 2015. - 14. He submitted that the tenancy agreement was effectual 1st June 2015 and Miscellaneous Application No. 0027 of 2015 was filed in court on 6th March 2015 according to Annexure B of the affidavit in support of the instant application. - 15. He urged that without delving into the details of the application and its affidavit in reply, the tenancy agreement had been frustrated having been signed on 1st June, 2013 but commencing on 1st June 2015 whereas the suit that is Miscellaneous Application No. 27 of 2015 was filed on 6 th March. He submitted that Section 115 of the Evidence Act says that no tenant of unmovable property or a person claiming through that tenant shall due to the continuance of the tenancy be permitted to deny that the landlord of that tenant had, at the beginning of the tenancy, a title to that immovable property; and no person who came upon any immovable property by the licence of the person in possession of that property shall during the continuance of the

licence be permitted to deny that person had a title to such possession at the time when the licence was given. He stated that it is agreeable that at the time when the suit was being filed, there was no continuance or existence of a tenancy agreement.

- 16. He said that in Miscellaneous Application No. 27 of 2015 there is a mortgage document marked as Annexure BA dated 7th June 2011 and when you look at the document the registered proprietor of the land in issue was Don Muwanguzi. - 17. Counsel for the respondents further submitted that Annexure K of the application to the amended plaint has an advert of the Daily Monitor dated 26th November 2013 and the suit land that was being auctioned by Armstrong Auctioneers happened to be for the 2nd defendant. In HCT-CS-222-2015, the registered proprietor therein was Don Muwanguzi. He averred that the question to ask is whether Don Muwanguzi was a tenant given the documents availed to court. He said that Section 59 of the RTA is very instructive that a person who is registered as the proprietor is the owner of the land, at the time when the suit was being filed, Don Muwaguzi was not a tenant. He submitted that the affidavit in reply to Miscellaneous Cause No. 0027 of 2015 is clear that there could have been falsehoods. - 18. Counsel also submitted that the suit was filed on 6th March 2015 and this is a suit that is arising out of a mortgage. He stated that in the affidavit in reply paragraphs 5&6 shows clearly that there could have been falsehoods. He averred that when court directed the parties to consolidate and amend, it was at that point that decisions were done and it ceased to be an affidavit per say because there was already consolidation that was ordered and directed by court. - 19. Counsel urged that according to the supplementary affidavit by Julius Bitera under paragraph 5 &6 Don Muwaguzi entered into a tenancy agreement because the documents cited in the advert the mortgage deed clearly shows that Don Muwanguzi was never a tenant but was a registered proprietor of the suit land. He averred that when you look at page 2 of the supplementary

affidavit the subject matter is the same as the one in Civil Suit No. 222 of 2015.

- 20. He averred that according to Annexure H of the supplementary affidavit, the parties consented to consolidate Miscellaneous Cause No. 27 of 2015 and High Court Civil Suit No. 222 of 2015. He said at that point the parties exercised the doctrine of severance before the instant application was filed - 21. He submitted that the issue as to whether Don Muwanguzi was a tenant from the evidence supplied may not be applicable. - 22. Counsel for the respondents also raised two objections and these included; - (i) Whether Julius Butera had authority to represent the donor Allen Blessings and if so, whether the donor and the donee can cumulatively enter appearance in court? - (ii) Whether the 1st applicant's written statement of defence filed on 7th July 2020 five years after should be struck off record with costs - 23. He submitted that on 16th December 2015, the 1st applicant having been served with the necessary court documents attended court proceedings when court granted an interim order as per Annexure A (miscellaneous Application No. 242 of 2015) of the affidavit in reply dated 31st August, 2020. He urged that importantly to note is that on 28th August 2015 before the hearing of the application for an interim order, the 1st applicant Maberi Blessings instructed Mugisha, Baguma & Co. Advocates according to Annexure B1 of the said interim order. - 24. He averred that on the 10th of September 2015 before the hearing of the application for an interim order, the said applicant instructed Birungi, Bahati Associates on the same affidavit in reply as per Annexure B2 to attended High Court Miscellaneous Application No. 242 of 2015 and was present in court. He said the 1st applicant instructed several lawyers but failed to file a defence for that reason, she ought to have been locked out of the proceeding.

- 25. He submitted that the said respondent's affidavit in reply dated 31st August, and the defence filed on 7th July 2020 almost 5 years. He averred that O.8 r.1 (2) of the Civil Procedure Rules requires that a defendant must file a defence within 15 days having been served with summons. - 26. He stated that given the fact that the 1st applicant entered appearance after 5 years that was an assurance that she invited herself within the ambit of the law and therefore she cannot hide under non-service of summons because the question will be how did she get to know that the instant application was to be heard on that date? - 27. He submitted that what the 1st applicant ought to have done would be to file an application to be allowed to file a defence. He prayed that the said defence be struck off with costs to the respondent. - 28. Counsel for the applicant on the issue of filing the written statement of defence after 5 years by the 1st applicant counsel submitted that whenever pleadings are amended, they have to be filed afresh and the reason that is done is that a party that may have not filed a defence because there was no service, gets the opportunity to file a defence and those subsequent amendments that were made were not served on the applicant. - 29. He submitted that the issue of service is an issue of law, proof of service is by way of an affidavit of service and that is categorically under O.5 of the Civil Procedure Rules and there is a reason why those provisions were put in place. He averred that the attendance of Miscellaneous Cause No.27 by the 1st applicant cannot be seen to be service. She attended miscellaneous Application No. 242 personally. - 30. He urged that there is no mention anywhere whatsoever of service of High Court Civil Suit No. 222 of 2015 and the only proof that can be adduced in proof of service is an affidavit of service which was not done. He further submitted that in their affidavit in rejoinder, paragraph 4.6 and 4.7 clearly indicate that the 1st applicant was only served with the 2nd amended plaint when counsel for the 2nd respondent appeared before the trial judge on 12th

March 2020 after he had been instructed to serve all the parties with the amended pleadings.

- 31. Counsel for the respondent submitted that as a result the instant suit in court was not particularly a suit of specific performance, specific performance was one of the main prayers sought. He said that High Court Civil No. 222 of 2015 paragraph 3(e) is where the applicants derive the fact that the suit was for specific performance. However, this was not only a suit for specific performance but it had so many prayers therein as per paragraph 3(a), (b), (c), (d) and (f). The complaint is about the introduction of specific performance and its consequences. - 32. On the issue of whether the amended pleadings introduced new cause of action which offended the rules of amendment. Counsel for the respondent urged that the 2nd applicant mislead court that this was a suit of specific performance. He submitted that the deed poll that was sworn meant to introduce a new person to the detriment of the applicant. He cited the case of **Professor Said Hack V. IUIU, Supreme Court Civil Appeal No. 47 of 1995** and said that this particular case is distinguishable from our instant facts as it involved an advocate who was conducting business without a license. - 33. He also cited the case of **Mulowooza Brothers V. Ensha Supreme Court Civil Appeal No. 26 of 2010** and stated that in this particular case, amendments are allowed even if;

i. They change a cause of action

ii. Amendments are allowed as there is no bars to the introduction of new cause of action

iii. Even amendments which prejudice the other party's case, amendment is allowed if it can be compensated for in costs

He averred that page 8 of that case starts with "moreover learned counsel for the respondent is right to state as he does in his submission that the civil procedure rules do not bar the introduction of a new cause of action or causes of action through an amendment to a plaint."

- 34. He submitted that O.2 r.4 (1) of the Civil Procedure Rules allows uniting in the same suits several causes of action against the defendant or defendants. This is intended to promote justice in the disposal of suits and to guard against multiplicity of suits. He averred that according to the Supreme Court case above, whatever amendments that were done as cited by the applicants even if it was to introduce a new cause of action is allowed as per that authority. - 35. He also cited the case of **Simon Musisi Kiwanuka V. Arthur Church** and submitted that what case law seems to prohibit is introducing an amendment that will prejudice the other party's case but as it will be shown later in this judgment even such an amendment will be allowed if prejudice can be sufficiently compensated. - 36. He said that along those lines the 1st amendment despite the fact that it could have introduced trespass that was explained in the affidavit in reply dated 28th September paragraph 23 clearly shows that the respondent was arrested kept away and that is when the eviction was done because initially he was in possession. - 37. He averred that the mere fact that court had allowed an amendment, it was pertinent that those issues are added into the suit so that all the issues in contention can be determined. He stated that the issues in respect of trespass as personalized in the amendments only try to show the special damages that were occasioned to the respondent when he was arrested and taken away and to date does not know where his items were taken. - 38. Counsel for the respondent further submitted that given the authorities cited by the applicants, the applicants have not demonstrated that they will be prejudiced in one way or the other. He averred that in any case if the respondent fails to prove the special damages the loss lies where it falls, they will be penalized and condemned to costs. - 39. He submitted that whatever amendment that was done was done in accordance with the law and prayed that the objections be overruled and the parties be allowed to proceed with the matter inter-parties.

- 40. Counsel for the applicant further submitted that the suit which is the basis of this application is an illegality. He stated that at one point we have somebody who claims to be an equity owner of a legitimate owner as per the 1st plaint. Then the amendment comes up with a tenant on board. He urged that a tenant maintaining a suit in these circumstances is unheard of and cannot be maintained. - 41. On the issue of whether the original plaint was filed by a non-existent person counsel for the respondent submitted that HCT-CS-222-2015 was filed by Sseremba Donald on 24th March, 2015 against the 2nd applicant and the 1st applicant. He urged that the plaint and the advert of 25th November, 2013 were in the names of Don Muwanguzi and Annexure "A" is the acceptance letter of offer dated 4th February 2013 and finally an instruction to sell letter dated 28th January 2013, clearly showing that the 2nd applicant was instructing its agents Allen Blessings Maberi who was a court broker to transact on their behalf. - 42. He averred that there is no way in physical appearance and interaction that the 2 nd applicant that is the bank through its agent could deal with Don Muwanguzi an individual and Sseremba Donald as a separate individual. He urged that the 2nd applicant was aware that Don Muwanguzi was the same as Sseremba Donald as per the affidavit in reply dated 28th September, 2020. - 43. He submitted that Annexure F of the statement of the bank's special assets officer in criminal case No. 1294 of 2015 Kira Annexure A is a charge sheet. He averred that documents in a criminal case at Buganda Road and in particular Annexure F highlights that a lady called and paid Ugx 14 million shillings on behalf of Sseremba Donald who had bided for the property since the money was paid in the way the bank wanted. - 44. He said that Sseremba Donald is an existing party and is the same as Donald Muwanguzi. He stated that Annexure G highlighted the statement of Julius Bitera a donee of the power of attorney of Allen Blessings Maberi where he said that; "we went back to the bank which sold the said land and they told us that Sseremba Donald and Don Muwanguzi is the same person". He averred that he was present in court when these people were being cross-examined. - 45. He cited the case of **Wasswa Primo V. Molder (U) Ltd** and submitted that this particular case is distinguishable from the instant facts. In the case of Wasswa Primo, there was a search carried out at the Company Registry (URSP) and it clearly showed that the particular company never existed. - 46. He submitted that the applicants have not demonstrated to this honorable court by way of searching under the registration of person's Act to find out whether Sseremba Donald was a non-existent person. He averred that in the interpretation section of the registration of Person's Act 2015 that was commenced on 26th March 2015 section 3 defines information to mean that about a person that is recorded in any form including identity date and a person means an individual or a natural person. He stated that that particular section goes ahead to define a report to include information that is recorded in any form. - 47. He urged that the respondent has a passport in annexure D and G in the affidavit in reply dated 28th September 2020 and 31st August 2020 respectively. He said Annexure G is a passport in the names of Sseremba Donald that was issued on 25th March 2004 and it expired on 26th March 2014. He averred that if the applicants had searched the migrations department, they would have found that Sseremba Donald existed as a person and is the same as Don Muwanguzi - 48. He submitted that immediately after Annexure G, there is Annexure H which is the passport in the names of Muwanguzi Don issued on 3rd November 2015 and it expires on 3rd November 2025. He urged that the only import of these 2 passports is that Don Muwanguzi also known as Sseremba Donald used to use these names interchangeably and when his passport in the names of Sseremba Donald expired, he opted to depone a deed Poll and its effect was for Don Muwanguzi to abandon the name of Sseremba Donald but not to assume the name of Don Muwanguzi as the applicants may want this court to believe

- 49. He prayed that court finds that Donald Muwanguzi and Sseremba Danald is same one person who has since abandoned the name of Sseremba as per the deep poll. - 50. He urged that the respondents are innocent litigants that usually the lawyers draft documents for and they just sign. He cited Article 126(2) (e) and stated that Don Muwanguzi was the registered proprietor of the suit land. He invited court to exercise its wise discretion of powers to make this right by giving the parties an opportunity to be heard in the main case given the facts in Miscellaneous Cause No. 27 of 2015 from which the respondent was evicted and is no longer in possession of the suit land. - 51. In reply counsel for the applicant submitted that section 115 is applicable and there is no amount of argument that can do us from the provisions of that section and in line with that, the suit as it is cannot stand. - 52. He submitted that the tenancy agreement commenced on the date of signing which is 1 st day of June 2013 or otherwise they would have made provision for a commencement date and prayed that the typo relied upon by counsel for the respondent be disregarded - 53. He averred that Annexure D of the affidavit of Sseremba Donald, paragraphs 5, 6 and 4 Sseremba falls out as a purchaser of property pursuant to foreclosure and then alludes to a tenancy agreement. He urged that in Donald Sseremba's affidavit under Miscellaneous Application 398 paragraph 4 Sseremba says he purchased the property and in paragraph 5 he says he has a tenancy agreement with the 2nd respondent Don Muwanguzi. He submitted that these are totally two people. - 54. He said that Annexure E to miscellaneous Cause No. 27 of 2015, paragraph 5 and 6 of the affidavit deponed by Don Muwanguzi show the difference in these personalities. He stated that in paragraph 6 of that affidavit, Don Muwanguzi categorically states that he has a tenancy agreement and attaches the same and in paragraph 6 he proceeds to say he has no claim of proprietary interest in the suit property but just rights as a tenant.

- 55. In respect of the statements made in a criminal case counsel for the applicant submitted that the affidavit in reply has inadmissible statements that have not been tendered in evidence but statements recorded as court has made it and prayed that they be struck off for being hearsay. - 56. In respect of the two copies of passport counsel for the applicant submitted that the authenticity of the passport is not substantiated as the same ought to have been certified by the Immigration department. He urged that the issue of personality is an issue of law and submitted that the 2nd amendment was greatly to the detriment and prejudice the applicant because the 2nd amendment introduce a non-existent person and that is why Annexure K of the amended plaint has the deed poll that was sworn to rectify the prejudice which is an abuse of court process because a deed poll does not act retrospectively. - 57. He urged that Annexure K paragraph 4(j) for the first time had Donald Sseremba a.k.a Don Muwanguzi with Annexure E attached thereto. He averred that if the 1st inconsistency does not lead to the striking out of the plaint, the non-existence of a person is enough to dispose of this suit. To court this meant the intended double existent. - 58. Counsel added that Miscellaneous Cause No. 27 which was filed by the bank is part and partial of these proceedings that cannot be sidelined because as a result of the consolidation, it formed part of the pleadings for this court. He submitted that the contents of that document are very relevant for considering whether we are dealing with a tenant in this matter or we are dealing with a land lord. He stated that we are having a tenant at one side and a landlord on the other side. - 59. He urged that there are other affidavits still arising out of the main suit. He said taking into account Section 31 of the Evidence Act, Miscellaneous Application 241 of 2015 and Miscellaneous Application No. 242 of 2015 were applications for the interim and the temporary injunction arising out of the main suit and the supporting affidavits respectively maintain the position of tenancy and the legitimate owner of Sseremba.

- 60. It is the submission of counsel for the applicant that the illegality of the tenant who is purportedly coming on board during the amendment is highly prejudicial. He stated that the subsequent amendments initially dealt with somebody who is saying I rightly bought from the bank, I paid so much money and because of having bought, I rented out this property to X. Then the renting out is used as one of the facets to show how aggrieved the plaint is concerned. Then subsequently he amends the pleadings to show that no incidentally the person who rented the properties is me. - 61. He averred that no amount of argument can be allowed by this court to show that there was need to bring in fresh and other causes of action when the party is T. He submitted that Donald Sseremba and Don Muwanguzi are distinct persons with different signatures and different affidavits. He said when these two parties merge at a later time to maintain the same cause of action is highly prejudicial to somebody who is trying to defend a matter especially where damages are being claimed. He prayed that the suit be dismissed.

### **RESOLUTION**

- 62. This court has read the affidavits and submissions of both parties and formulated the following issues to guide in the resolution of this application; - (i) Whether the applicant has the capacity to bring this application? - (ii) Whether the amended plaint in HCCS No. 2370 is defective or not? - (iii) Whether the plaintiff in HCCS No. 222 of 2015 assumed double capacity, and if so, whether the action was contrary to the law? - 63. At the start of the hearing, court asked parties to submit on Section 115 of the Evidence Act. The Section provides; " *no tenant of immovable property, or person claiming through that tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of that tenant had, at the beginning of the tenancy a title to that immovable property;……………………………………………………………………………… ………………………………………………………………………………………… ………………………………………………………………………………………."*

**64.**Though I am grateful to the submissions made by both counsel, this court believes there other grounds to resolve the dispute without the invocation of this section.

### **ISSUE NO. 1**

#### **65.***Whether the applicant has the capacity to bring this application?*

- 66. It is the respondent's contention that the applicant having not been a party to the consent order that consolidated Civil Suit No. 222 of 2015 and Miscellaneous Cause No. 27 of 2015, she has no capacity to bring the application to review a consent order to which she was not a party. - 67. Secondly, the respondent contend that the applicant having been served with the summons to file the written statement of defence in Civil Suit No. 222 of 2015 and only filed 5 years after, she brought herself within the ambit of the law and therefore she ought to first seek leave of court to allow her file her defence out of time. - 68. The applicant on the other hand averred that she was never served with the summons to file her defence in Civil Suit No. 222 of 2015. She said that the only summons she received was for the 2nd amended plaint which she replied to. - 69. Counsel for the respondent submitted that on 16th/12/2015 the 1st applicant having been served with the necessary court documents, attended court proceedings when court granted an interim order in Miscellaneous Application No. 242 of 2015 but failed to file a defence. For that reason, she ought to have been locked out of the proceedings. - 70. Counsel for the applicant on the other hand submitted that the issue of service is an issue of law, proof of which is by way of an affidavit. He said that the fact that the applicant attended Miscellaneous Application No. 242 of 2015 personally, cannot be seen as service.

- 71. The principle of service is properly given under **O.5 r. 1 (a) and (b) of the Civil Procedure Rules** and it provides that; "*when a suit has been duly instituted summons may be issued to the defendant- (a) ordering him or her to file a defence within a time to be specified in the summons; or (b) ordering him or her to appear and answer the claim on a day to be specified in the summons."* - 72. In the **Civil Suit No. 0001 of 2014 Ejab Family Investment and Trading Company Limited V. Centenary Rural Development Bank Limited**, Justice Stephen Mubiru said that; *a summon to file a defence is a judicial document calling upon the defendant to submit to the jurisdiction of the court and if the party is not given that opportunity to so appear and either defend or admit the claim, there is no other way he or she will submit to the jurisdiction of the court. Non-compliance with this rule therefore cannot be mere procedural technicality. A court has no jurisdiction to deal with a filed plaint until a summons to file a defence has been served and a return of service filed, which step alone will activate further proceedings in the suit. Until summons have been issued and served, the suit is redundant."* - 73. In the **Supreme Court Civil Appeal No. 6 of 2004 Edison Kanyabwera V. Pastori Tumwebaze,** Justice Oder stated that; **"***there was no affidavit of service on the record. The absence of such affidavit leads inevitably to the conclusion that the defendant was not properly served with the hearing notice before the suit was heard in his absence. The point is that there was no evidence that the defendant was served at all, not that he was not served by the special mode of service prescribed by Lugayizi, J, which would not have been an issue if the defendant was normally served as required by the C. P. R."* - 74. In **Civil Appeal No. 87 of 2010 Rwabuganda Godfrey V. Bitamissi Namudu** the Court of Appeal stated that; "*courts of law must always insist upon personal service of summons before taking any other step in order to avoid or at least limit abuse of court process and the resultant injustice."*

- 75. I have gone through all the pleadings on the court record and only found annexure F summons to file defence issued on 26th March, 2015 but there is no proof of service of the same to the applicant nor does the lawyer allude to the same. The law as reviewed above requires that after institution of a suit, summons to file defence together with the plaint must be served to the defendant within 21 days from the date of issue. - 76. It is true that the applicant participated in the earlier proceedings being Miscellaneous Application No. 242 of 2015 however, the law requires that proof of service is by swearing an affidavit proving that service was effected on the defendant. See **O. 5 r. 16 of the Civil Procedure Rules and the authorities earlier cited**. Therefore, this court did not agree with the averment of the respondent that attendance of Miscellaneous Application No. 242 of 2015 meant proof of service. - 77. From the foregoing, it is found that the applicant was never served with summons to file her defence in Civil Suit No.222 of 2015. - 78. It is also the argument of the respondent that the applicant was not a party to the consent order of consolidation and therefore had no capacity to bring this application. The record indicates that in Civil Suit No. 222 of 2015 the applicant was sued by the respondent as the 3rd defendant. This therefore mean that upon consolidation of Civil Suit No. 222 of 2015 with Miscellaneous Cause No. 27 0f 2015, the applicant still was a party to the suit. This is proved by service of the amended plaint on the applicant on 22nd of June, 2020 who in response filed her written statement of defence on 7th of July 2020. The moment the applicant correctly filed the defence, she had the capacity to bring this application. - 79. In the result, the applicant had capacity to bring this application in court.

# **ISSUE NO. 2**

# **80.***Whether the amended plaint in HCCS No. 2370 is defective or not?*

- **81.**The applicant averred that the 2nd amended plaint filed on June 22, 2020 the respondent introduced a new cause of action for trespass to goods and the facts giving rise to the respondents claim were changed in total disregard of the principles governing the amendment of pleadings. - **82.**The respondent on the hand averred that the changes in the facts giving rise to the claim of alleged trespass to goods only came in when he was arrested by police on charges instigated by the applicant and Bank of Africa Uganda Limited in a Criminal Case Vide KRA-CO-1294/15 arising from CRB 318/2015 now Criminal Offence No. 0416 of 2016 to have him leave the suit land since the respondent was in physical occupation of the suit land as per the interim order were the applicant couldn't take possession. - **83.**He averred that the respondent in the said Criminal Case led to his unlawful and illegal eviction since he was without a court order evicted by way of arrest on partly the applicant's setting the criminal law justice system in motion and the respondent's church property vandalized. - **84.**He stated that he filed an amended plaint in court in total agreement with opposite lawyers of Bank of Africa Uganda Limited and Anthony Mupere with the items he lost as special damages inclusive of other facts as a result of the unlawful eviction that was done in his absence a fact that can help this Honourable Court in resolving all issues arising out of the said suit which has since not been challenged by the parties that were present when the amendment was directed. - **85.**The applicant averred that the amendment was made in bad faith with a view of changing the nature of the action into one of a substantially different character to the prejudice of the Applicant - **86. Order 6 r. 19 of the Civil Procedure Rules** states that; "*a court may, at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such 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 question in controversy between the parties."*

**87.**The principle of amendment of pleading was discussed in the case of **Gaso Transport Services (Bus) Ltd v Obene [1990-1994] EA88** where Tsekooko, JSC stated that the four principles that appear to be recognized as governing the exercise of discretion in allowing amendments are:- "*The amendment should not work injustice to the other side. An injury which can be compensated by an award of costs is not treated as an injustice. 2. Multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed. 3. An application which is made mala fide should not be granted. 4. No amendment should be allowed where it is expressly or impliedly prohibited by any law (for example limitation action)".*

- 88. Also in the case of **Eastern Bakery v Castelino [1958] EA 462 (CAU), Sir Kenneth O'Connor stated that;** *" Amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side and … there is no injustice if the other side can be compensated by costs… the court will not refuse to allow an amendment simply because it introduces a new case… but there is no power to enable one distinct cause of action to be substituted for another… the court will refuse leave to amend where the amendment would change the action into one of a substantially different character….…………………………………………………………….."* - 89. In the view of the above authorities, I agreed with counsel for the respondent when he submitted that the issues of trespass as personalized in the amendment only try to show the special damages that were occasioned to the respondent when he was arrested and taken away and to date does not know where his items were taken. He averred that in any case, if the respondent fails to prove the special damages the loss lies where it falls, they will be penalized and condemned to costs. - 90. In Civil Suit No. 222 of 2015 the respondent originally sued for an order of specific performance, an order directing the 1st and 2nd defendants to receive the remaining balance in respect of the suit property and an order directing the Registrar of Titles Wakiso to cancel the entry of the 3rd defendant on the Title and substitute it with the names of the plaintiff among others. In the amendment the respondent introduced a prayer of special damages and interest on special damages from the date of the cause of action till payment in full.

- 91. In his affidavit evidence in reply Sseremba Donald stated that; "*since he was unlawfully evicted in absentia and his property vandalized in violation of the interim order that had been issued, court having granted a consolidation and amendment of pleadings, he had to amend his case to reflect that property he lost in his church business for all issues to be resolved at once".* - 92. In the case of **Mulowooza Brothers V. N Shah & CO. Ltd Supreme Court Civil Appeal No. 26 of 2010**, Justice Jotham Tumwesigye stated that; amendments are allowed even if; - (i) They change a cause of action

ii. Amendments are allowed as there is no bars to the introduction of new cause of action

iii. Even amendments which prejudice the other party's case, amendment is allowed if it can be compensated for in costs.

He averred that page 8 of that case starts with "*moreover learned counsel for the respondent is right to state as he does in his submission that the civil procedure rules do not bar the introduction of a new cause of action or causes of action through an amendment to a plaint."*

- 93. The above Supreme Court decision applies to the facts before this court and it binds me. - 94. The all idea is to reduce on the number of cases an aggrieved party files in a transaction constituting his cause of action. Even if this court were to disallow the amendment, that does not prevent the respondent from filing several other suits premised on the same cause of action which is multiplicity. I therefore find that this amendment was not defective.

## **ISSUE NO.3**

**95.***Whether the plaintiff in HCCS No. 222 of 2015 assumed double capacity, and if so, whether the action was contrary to the law?*

- **96.**At the trial the arguments of the parties centered on either the existence or the non-existence of the plaintiff in the High Court Civil Suit No. 222 of 2015. The conclusion of the applicant was that the suit was filed by a non-existent party and therefore not maintainable. The decision like V. G Keshwala T/A & Sons V. MM. Sheik Dawood HCMA No. 543 of 2011 were cited to this court to support that conclusion. However, in the humble opinion of this court that is not the correct issue to address. Hence the framing of the foregoing issue. - **97.** This matter started when Don Muwanguzi as the registered proprietor mortgaged Kyadondo Block 194 Plot 271 and 274 at Kungu to Bank of Africa Uganda Ltd (which herein after for convenience will be referred to as Bank of Africa) on 7th June, 2011 as security. In his own affidavit evidence Don Muwanguzi admitted to have defaulted on the loan facility. As a result of that default the Bank filed Miscellaneous Cause vide No. 27 of 2015. - **98.**Upon that occurrence Bank of Africa Vide Miscellaneous Application 27 of 2015 on the 6th March 2015 applied for an eviction order against Don Muwanguzi for Kyandondo Block 194 plot 274. - **99.** In his affidavit in reply dated the 30th March, 2015 sworn before Ayebazibwe Makolongo Commissioner for Oath. The said Don Muwanguzi stated that; "*I do not claim any proprietary interest in the property but just my rights as a tenant".* - 100. There are interesting events which occurred on 24th March 2015 relating to this matter. First one were that a person using the names Sseremba Donald filed High Court Civil Suit No.222 of 2015 against Bank of Africa Uganda Ltd and 2 others. The summary of the plaint is that when Don Muwanguzi defaulted the Bank took steps for foreclosure, advertised and sold the property by public Auction and in the plaint Sseremba Donald claimed to have bought the property and made part payment. - 101. The second one, the said Sseremba Donald filed an affidavit termed "in reply" in Miscellaneous Cause No. 27 of 2015 Bank of Africa V. Don Muwanguzi. In this, it is important to note that the person by these names was

not a party to the proceedings but proceeded to state in paragraph 9 " *that I am the one in occupation of the premises and the respondent is just my tenant"*

- **102.** The two matters were before Nakawa High Court and they were forwarded to the High Court Land Division as High Court Civil Suit No. 222 of 2015 and MC No. 27 0f 2015 whereupon they became; HC. C. S No. 2370 of 2016 and HCMC No. 2036 of 2016 and were the ones which were consolidated. - **103.** After consolidation, the applicant herein filed her defence and this application arose because of the claim that the plaintiff/respondent in the above suit was a non-existent party. However, it is not a question of nonexistence of a party. From analysis of the evidence on record, it is this court's humble opinion that it is not a question of non-existence of a party but it is treated as dual existence of DON MUWANGUZI and SSEREMBA DONALD in different capacities at either the same time or different times. - **104.** To prove the above, the following instances were found relevant by the court; - The Mortgage deed signed on 7th June, 2011 indicates **Don Muwanguzi** was initially the proprietor of the suit land that was mortgaged to Bank of Africa Uganda Ltd by Qualista Group Limited. Qualista failed to pay the money as per the mortgage deed and the suit land was taken over by Bank of Africa. - On 28th of January, 2013 Armstrong Auctioneers received instructions from Julius Baluku (Credit Risk Manager) and Farouk Kitumba (Head of Credit) of Bank of Africa Uganda Limited. The instructions read; *"re-instruction to sell property comprised on block 194, Plot No.274 and 271. This is to instruct you to sell the above mentioned property which was mortgaged to the Bank by the under mentioned defaulter in order to recover Bank Funds interest accrued and your fees/costs to the highest bidder Sseremba Donald at Ugx 140,000,000/= ( Uganda Shillings One Hundred Forty Million Only).*

- *The following are the details of the account onto which the funds should be deposited: ACCOUNT NAME: QUALISTA GROUP LTD ACCOUNT NUMBER: 0121060000"* - On 4th of February, 2013 **Sseremba Donald** received a letter from Anthony Mupere for Armstrong Auctioneers. It stated; "*re- acceptance of your offer for the property comprised on Plot No. 271 and 274 Block 194 Land at Kungu Kyandondo County. Reference is made to your offer on the above property We are pleased to inform you that your offer of 140,000,000/= (One hundred forty million shillings) was accepted by the bank and you are advised to deposit the funds onto account No. 012106000007 in the names of QUALISTA GROUP LTD*

*Please note that all relevant documents will be released to you after payment."*

- On 1st of June, 2013 **SSEREMBA DONALD** entered into a tenancy agreement with **DON MUWANGUZI** which was effective on 1st June, 2015 for a term of two years. The tenancy agreement reads in brief; "*whereas the land lord has agreed to let and the tenant who was the previous registered owner and failed to pay Bank of Africa money owing after taking out a loan and now wishes to operate a church and has agreed to take the premises upon the terms and conditions hereinafter. Clause 1 in consideration of the rent hereinafter reserved and of the covenants on the part of the tenant hereinafter contained, the Landlord hereby demises unto the tenant the said premises to hold the same unto the tenant for a term of 2 years commencing on the 1st of June 2015 provided that the said term may be extended or renewed on such terms as the parties may then mutually agree."* This was a tenancy with himself. - The Bank on 26th of November, 2013 advertised the suit land in the Monitor Newspaper for sell by public auction and eventually sold it to

the applicant. The respondent claims the action of sell was taken without his consent.

- On 6th of March 2015 the Bank filed Miscellaneous Cause No. 27 of 2015 seeking vacate possession of the suit land against DON MUWANGUZI who was in occupation . DON MUWANGUZI on 30th of March, 2015 filed a reply and under paragraph 5 and 6 he averred that; "*I entered into a tenancy agreement with the said Sseremba Donald as he is also a born again Christian and therefore did not wish to demolish the church. I do not claim any proprietary interest in the property but just my right as a tenant."* Yet he was the registered owner - On the 24th March, 2015 **Sseremba Donald** sued the applicant and others under Civil Suit No. 222 of 2015 and under paragraph 4(d), (e), (f) and (g) of the plaint he stated that "*after agreeing to pay the 1st defendant's money, the plaintiff rented out the property to its previous owner for 2 years with a view of generating money. After renting out the property, the previous owner Don Muwanguzi erected a church on it. To his surprise, the 1st defendant sold the property to the 3rd defendant without any notice to the plaintiff and has applied to evict the previous owner Don Muwanguzi who is the plaintiff's tenant. The 3 rd defendant at all material times knew that Don Muwanguzi the previous owner occupied the premises as a tenant of the plaintiff."* - Using the above suit, **SSEREMBA DONALD** filed an affidavit in reply to Miscellaneous Cause No. 27 of 2015 in which he stated; "*I am the one in occupation and the respondent is just my tenant."* The tenant is DON MUWANGUZI who is the same person as SSEREMBA DONALD - Quickly SSEREMBA DONALD on 20 of April, 2015 filed Miscellaneous Application No. 398 of 2015 under Miscellaneous Cause No. 27 of 2015 seeking an order that he be joined as a party. In the affidavit in support to the application paragraph 5, 6 and 9 averred that; "*after undertaking to pay and paying money to the applicant, I*

*entered into a tenancy agreement with the 2nd respondent (Don Muwanguzi) and allowed him to operate a church thereon with a view of generating money and eventually pay the applicant. To my surprise, the 2nd respondent showed me an application for eviction against him by the 1st respondent. (Don Muwanguzi (the tenant) showed his landlord Sseremba Donald an eviction order."*

- On 26th of August 2015 SSEREMBA DONALD swore a deed poll denouncing the name SSEREMBA DONALD and assuming the name DON MUWANGUZI. The deed poll reads; *"Know ye all men, by this deed poll that, I, DON MUWANGUZI, of P. O box 4850, Kampala, do hereby renounce and forthwith cease usage, abandon my former name of SSEREMBA DONALD, and in lieu thereof renounce, relinquish and abandon the usage of the said SSEREMBA DONALD, and adopt, assume and take the title of the name of DON MUWANGUZI. That I declare that I shall at all times after in all records, deeds, dealings, private and public, or in whatever occasion called, cease and sign in names of DON MUWANGUZI as my name in place of SSEREMBA DONALD. That I expressly authorize and request all persons at all times to designate and address me by such assumed and adopted name DON MUWANGUZI."* - 105. Court has gone an extra mile to show how SSEREMBA DONALD had dual existence. He could choose what to be depending on what was convenient to him. For example in the affidavit in support to Miscellaneous Application No. 398 of 2015, he averred that; "*to my surprise, the 2nd respondent (Don Muwanguzi) showed me an application for eviction against him by the 1st respondent."* Which means Don Muwanguzi showed to himself the eviction order which surprised him. Physically impossible. - 106. In the view of SSEREMBA DONALD the swearing of the deed poll would cure the above ills and in my view it utterly failed. This court has interpreted each of the above instances to be deliberate acts of dishonesty. I find no better situation of the definition of such acts than the one my lord Bart Katureebe CJ (as he then was) that they are acts of; "…*intentional perversion of truth for the purpose of inducing another in reliance upon it to part with*

*some valuable thing belonging to him or to surrender a legal right. A false representation of a matter of fact, whether by words or by conduct, by false or misleading allegations, or by concealment of that which deceives and is intended to deceive another so that he shall act upon it to his legal injury. Anything calculated to deceive, whether by a single act or combination, or by suppression of truth, or suggestion of what is false, whether it is by direct falsehood or innuendo by speech or silence, word of mouth, or look or gesture..."* In **Fredrick Zaabwe v Orient Bank &Ors SCCA No. 04 of 2006**

- 107. According to the above authority, it is this court's considered view that by the respondent using different names in different capacities he had the intention to pervert the truth, to falsely represent facts and to conceal information with intent to deceive the bank. - 108. Once court noticed gearing acts intended by the respondent to take what does not belong to him it applied the famous decision of **Makula International v. Cardinal Nsubuga & Anor. (1982) HCB 11** that a court of law cannot sanction what is illegal and illegality once brought to the attention of the court overrides all questions of pleading, including any admissions made thereon. Deciding the otherwise would expose money lending institutions to risk. - 109. This court concludes that HCCS. NO. 222 of 2015 now HCCS NO. 2370 from which this application arose is bad in law and it is accordingly struck out with costs.

Given Under my hand and seal of this Honorable court this **9 th** day of **August** 2021.

**JUDGE** NYAN YASIN