[2025] UGHC 469

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HCT- 1 7-LD-M A-O L37 -2025 (Arising from HCT- 17-LD-MA-O393 -2o241 (Arising from MC NO. 28 OF 2()231 (Arising from EMA NO. OO8 OF 20231 (Arising out of HCCS NO. 549 of 2OL6l MUJURIZI JAIUES ::r::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT

vs

# 1. BYAI(ATONDO JOHN

2. MIIYINGO ROBERT :::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENTS

## BEFORE: HON JUSTICE GODFREY HIMBAZA

# Introduction

- 1 This application was brought by Chamber Summons filed in this court on 1ln April, 2025 under Order 6 rules 19 and 31 of the Civil Procedure Rules SI 282- 1, seeking for the following reliefs; - a) The applicant be granted leave to amend the Notice of Motion in HCMA no. HCT- 17-LD-M A-O393-O24 to include more prayers to wi! setting aside the ex parte jtdgment and decree in Civil Suit no. 594 of 2016, Consequential Orders for cancellation of certificates of title for property comprised in Bulemezi Block 973 plots 13,14,1S,and 16 land at Kigweri created by the respondents out of the original certilicate of title for the suit property described as Bulemezi Block 973 plot 2 land at Kigweri purportedly acting on the basis of the impugned ex parte judgement and decree in HCCS No 549 of 2016 and an order for restoration of the applicant's special certificate of title to the suit property comprised in Bulemezi Block 973 plot 2 Kigweri. - b) The applicant be granted leave to file a supplementary affidavit in support of the reliefs sought in (a) above

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c) Costs of this application be provided for.

- 2 The grounds of this application are contained in the affidavit in support deposed by the applicant Mujurizi James. - a The respondents filed an affidavit in reply deposed by the second respondent Muyingo Robert on his behalf and on behalf of the first respondent Byakatonda John. - When the main application came up for hearing on 2nd April, 2025, counsel for the applicant submitted that new facts had since emerged after the filing of the main application and as such, sought leave of court to file the instant application for amendment of pleadings, to which counsel for the respondent did not object. The parties filed their respective written submissions which i have taken into consideration while resolving this application. 4

# Re resentation

The applicants were represented by Mr. Arthur Murangira of A. M & Co. Advocates, whereas the respondents were represented by Mr. Mugerwa Marcos on brief for Berna Mutamba of Manzi, Mutamba Advocates & Solicltors. 5

# Background to the aoolication

# Hiqh Court Land Diuision Ciuil Suit No. 594 of2O16

- 6. The plaintiff in the main suit Kyeyune Biromba Mayikolo (suing through lawful attorney -Bukenya Fred), being the administrator of the estate of the late Bukenya Yokana sued the applicant/ defendant Mujurizi James, for orders of revocation of Letters of Administration, cancellation of the defendant's name as a registered proprietor for Bulemezi Block 973 Plot 2(suit land/estate) as well as the special certificate of title in his possession, eviction order, general damages and costs of the suit. - ⁷. According to the facts as presented in the amended plaint which i had the benefit of perusing, the suit land belonged to Yokana Bukenya who was the registered proprietor until 1983 when the said Yokana Bukenya was killed in the war in Luwero. The plaintiff was a son of the deceased and also a biological brother of one Joyce Nanyonjo and Paul Zahura. On 16tn

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November 1987 the plaintiff with the consent of the other siblings applied for and obtained Letters of Administration to the estate of his late father Bukenya Yokana. According to the plaintiff, the defendant/applicant after sometime connived with one Nyamukaira Janet who was a maternal aunt of the late Bukenya Yokana without consulting the other relatives and beneliciaries and represented to court that she was the only relative of the deceased and she applied for Letters of Administration with the sole purpose of acquiring the suit land and she was granted the same on 14th July 1988 while the plaintiff had already obtained his earlier in 1987. She transferred the land into her names and then later transferred the same into the defendant's/Applicant's names. The Plaintiffs complaint was that the transaction between the said Nyamukaira and the defendant was fraudulent on the grounds that she did not possess valid Letters of Administration as she obtained them after the plaintiff had obtained the valid ones, she did not call any family meeting before obtaining the l,etters of Administration, she did not obtain a Certificate of No Objection from Administrator General's oflice and that she fraudulently obtained a special certificate of title for the suit land.

- 8. The defendant/Applicant filed his Written Statement of Defence but eventually never attended court to follow up on the matter until judgement was entered to proceed ex pate against him by Hon Justice Kaweesa Henry. The matter proceeded ex parte as against the defendant and judgement was issued by the trial court on 2l"t January 2O2O with orders that; - i) The plaintiff was the rightful administrator of the estate of the late Bukenya Yokana comprised in Block 973 plot 2land at Kigeri-Ngoma-Nakaseke district. - ii) The defendant was a trespasser on the land - iii) A permanent injunction restraining the defendant, his agents assignees from trespassing onto the land - iv) Geneal damages of Ugshs S,OOO,O(X)/= (Five Million Shillings onlyf - v) Punitive damages of Ugshs 5,OOO,OOO/=lFive Million onlyf 3lPage

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vi) Costs of the suit.

- 9. Basing on the aforesaid findings of court, one Byakatonda John and Muyingo Robert (the respondents, biological sons of the plaintiff) who had obtained Letters of Administration for the estate of the plaintiff (the plaintiff having died) applied to court vide Misc. Application no. 103 of 2023 to be added onto the suit as legal representatives of the plaintiff. The application was entertained by the Deputy Registrar and an order replacing the deceased plaintiff with the respondents as his legal representatives was issued. In the meantime, the respondents frled EMA No. O8 of 2o.23 seeking to execute the ex parte Judgement and Decree. - 1O. The defendant/applicant being dissatisfied with the ex parte jud.gernent passed by Justice Henry Kaweesa, filed an application to set it aside vide Land Division Miscellaneous Application no. 2 158 of 2O2l which application was heard and it was dismissed by the same Judge on 27b April 2022. The applicant then filed an appeal in the Court of Appeal against the dismissal vide CACA No. 438 of 2O22. A memorandum of appeal to that effect was filed on I lb November 2022. - ^Il. The applicant also filed Misc Application no. O393 of 2o24 in this court seeking to set aside the appointment and substitution of the plaintifl's legal representatives to the suit on the grounds that they were illegally substituted to the suit by a Registrar of court who lacked jurisdiction to do so. It is this particular application that the applicant seeks to amend to add other prayers as shall be seen hereinafter.

# Issues for determlnation

- 12. Both parties raised three issues for determination, however, i will merge the first two issues into one as follows; - a) Whether leave should be granted to the applicant to amend his pleadings - b) What remedies are available?

# Applicaat's submissions on issue l.

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- 13. The applicant in his submissions alluded to the law governing amendment of pleadings generally , which is O.6r 19 of the Civil Procedure Rules SI282- 1. He relied on the cases of Eastern Bakery v. Castelino (19581 EA 461 and Gaso Transport Senrices Ltd Vs Martln Adala Abene SCCA No. O4 of 1994. - 14. Counsel argued that the court is clothed with wide discretion to allow amendment of pleadings and that it is necessary in order for court to be able to determine the real questions in controversy between the parties. - 15. Counsel quoted a text that was cited in Code of Civil Procedure by Chitaley & Rao 2oa editlon Vol l1 that contained the principles which should guide court in granting or refusing applications for amendment of pleadings on page 462 as follows;

" ...amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side and that there is no injustice if the other side can be compensated by costs...the court will not refuse an amendment simply because it introduces a new case...the court will refuse leave to amend where the amendment would change the action to one of a substantially different character, or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment. . . the main principle is that an amendment should not be allowed if it causes injustice to the other side.'

- 16. Counsel further relied on the case ofGaso Transport Services (Busf Ltd v. Martin Adala Obene (Supra) which set out the principles governing the exercise of court discretion when determining an application for amendment of pleadings to be as follows; - i) The amendment should not work injustice to the other side. An injury which can be compensated by the award ofcosts is not treated as an injustice.

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- 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 mala fide should not be granted. - iv) No amendment should not be allowed where it is expressly or impliedly prohibited by any law. - 17. In his submissions on lssue 1, counsel for the applicant contended that after the applicant had filed HCMA No. 0393 of 2024 on l8e December 2024, he received information from his lawyers which revealed that Kyeyune Biromba Mayikolo the plaintiff in the main suit i.e. CS No 549 of 2016 passed away on 12s March 2017 during the pendency of the said suit and long before the ex parte judgement and decree had been passed. He averred that a judgement passed against a deceased person is a nullity. - 18. The applicant further averred that he had recently learnt that the respondents had obtained their registration on his certil'icate of title to the suit property comprised in Bulemezi Block 973 plot 2 land at Kigweri, purportedly acting on the basis of the aforesaid ex parte judgement and decree and proceeded to create fictitious sub divisions thereof to wit; Bulemezi Block 973 plots 13,14,15,& 16 in respect of which separate certificates of title were issued to them yet the matter of ownership was still the subject of litigation. - 19. Counsel further argued that the nature of HCMA No 0393 of 2024 shows that the amendments which the applicant seeks to introduce are closely related to the application in issue. They all arise from and relate to the main suit. He further argued that it was necessary to point out that should the applicant succeed, this would have the effect of resolving all the other issues raised in all pending applications.

#### ResDondents cqac and subtnbgions on issue 1

20. The respondents strongly opposed the application. In their affidavit deposed by the 2"4 respondent, they stated that the late Kyeyune Mayikolo Biromba, who was their biological father, died on 12e March, 2O2O after the judgment in the main suit had been delivered. That the judgement in the suit was

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delivered on 21st January 2O2O when the their father (formerly the plaintiff) was still alive. These facts are contained in paragraph 4 of the affidavit in reply. The respondent also attached a death certificate from NIRA on the affidavit in reply and marked it Annexture B confirming the date of death. Counsel relied on section aa (31 of the Registration of Persons Act 2O15 which provides that every death shall be registered immediately it occurs and, in any case, not more than three months from the date of that death.

- 21. On the prayer of setting aside the ex parte judgement, counsel for the respondent argued that allowing such a prayer would be changing the character of the application, which is against the law on amendment of pleadings. That whereas the main application to wit M/A o393 OF 2o24 challenged the proceedings before the trial deputy Registrar in execution (EMA No. O8 of 2023) as well as the replacement of the respondents as legal representatives of the late Kyeyrrne Mayikolo Biromba vide Misc Application no. 103 of 2023, the proposed amendment goes beyond the execution level of HCCS No. 549 of 2016 back to the judgement , therefore changing the character in MA 394 of 2024. Counsel argued that it has been the position of most authorities that courts shall not allow amendments where a new cause of action being introduced changes the character of the first case. - 22. Counsel cited the case of Lubowa Gyaliira & ors vs. Makerere Universlty HCMA 471 of 2OO9 where it was held that

"....a court will not exercise its discretion to allow an amendments which constitutes a distinctive cause of action for another or to change by means of amendment, the subject matter of the suit."

23. Counsel therefore avers that the proposed amendments change the character of the initial application from one against execution and legal capacity of the respondents to execute, to one challenging the whole judgement and decree and as such the application for amendment ought to be dismissed.

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- 24. On the prayer for consequential orders of cancellation of the certificates of title for properry comprised in Bulemezi Block 973 plots 13,14,15,& ¹⁶ (formerly plot 2) land at Kigweri, counsel argued that the applicant's allegation that he got to know about this on 18th December 2O24 was false because on 16d May 2024, the applicant initiated a complaint to the office of the Commissioner Land Registration and later filed written submissions on l2th September 2024 clearly indicating his concern to be the new subdivisions into plots 13, 14, 15, and 16. That hence, this is not a new fact to the applicant as he had always known about it. Citing the case of Gaso Transport Senrices (Busf Ltd Vs. Martin Obene (supra), counsel contended that this application brought on the pretext that the applicant just came to know about the respondent's registration and subdivision whereas not is therefore not brought in good faith. For emphasis, counsel relied on the holding in the Gaso case that; - "4. An aoolication which is made malafide should not be granted - 5. No amend ment should be allowed where it is expresslv or impliedlv prohibited bv anv law" - 25. Counsel also argued that as per the respondent's affidavit, plots 13 and 14 which are among the plots that the applicants seek court to cancel are no longer registered in the names of the respondents but in the names of one Byarubasika Ramadhan and Kayongo Yasin and that this fact is known to the applicant through his submission to the Commissioner Land Registration. (Ref to land titles marked Gl and G2f . According to counsel for the respondent, allowing the proposed amendments seeking for cancellation of the titles would be condemning the registered proprietors unheard against the Constitutional provisions on the right to be heard.

# Decision of court

Resolution of ksue ¹

af Whether leave should be sranted to the applicant to amend his pleadings

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hilil-"- 26. The law on amendment of pleadings is found in statutory/ procedural law as well as case law. The most relevant provision under the Civil Procedure Rules is Order 6 rule 19.

## 27. Order 6 rule 19 ofthe Civil Procedure Rules states;

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

28. In the case of Eastern Bakery v Castelino CA. CA No. 3O of 1958 [1958] EA 461 cited with approval by the Supreme Court in Muwolooza & Brothers v N Shah & Co Ltd (Ctvil Appeal No. 26 of 2OlOf [201fl UGSC Ll2 ll4 November 2O111, it was held;

> "Amendments to pleadings sought before the heaing should be freelg allowed, if theg can be made uithout injustice to the other side and ... tLere is no iniustice if the other side con be compensated bu costs ... the court utill not refuse to allou an amendment simply because it introduces a neu) case .... but there Ls no DOLU er to enable one distinct cause of action to be substituted for another .. . the court uill refuse leaue to amend where the amendment utould chanoe the action into one of a substantia lu different character... or where the amendment would prejudice tlte ights of the opposite party existing at the date of the proposed amendment e.g. by depiuing him of a defence of limitation. "

- 29. The import of the above authorities is that an amendment of pleadings can be allowed where it does not change the cause of action or prejudice the opposite party and more so if it can assist the court in the determination of the issues in controversy conclusively as between the parties. - 30. Furthermore, in Gaso Transport Services Limited v Kikambi (Civil Appeal 4l of 2OO2l I2OO4| UGCA 36 (24 August 2OO4l, also cited by both counsel, my learned brother Hon. Tsekooko JSC(as he then was), held;

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"The four pinciples tlwt appear to be recognized as goueming the exercise of discretion in allouing amendments are: -

- a) The amendment should not uLork injustice to the otlwr side. An injury which can be compensated by an award of cosls is not treated as an injustice. - b) Multiplicitg of proceedings should be auoided as far as possible and all amendments uhich auoid such multiplicitg should be allouted. - 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 bg ang law (for example limitation actions). " - 31. Having carefully perused through the proposed amended pleadings -Notice of Motion vis-a-vis the original pleadings, i note that the applicant seeks to amend Miscellaneous Application no. 039312024 to add the following prayers. - i) A prayer for an order seeking to set aside the ex parte judgement and decree in HCCS No. 549 of 2016. - ii) A prayer for consequential orders of cancellation of the certificates of title for property comprised in Bulemezi Block 973 plots 13,14,15,& 16 land at Kigweri which were illegally created by the respondent out of the original certificate of title to the suit property comprised in Bulemezi Block 973 plot 2 land at Kigweri . - iii) A prayer for an order for restoration of the applicant's special certificate of title to the suit property comprised in Bulemei Block 973 plot 2 land at Kigweri. - 32. On the first prayer above, i do note that the applicant filed an application to set aside the ex parte judgement entered in Civil Suit 549 of 2016 before the judge who entered the judgement i.e Justice Henry Kaweesa vide Miscellaneous Cause no. 2158 of 2O2l and the same was dismissed on 276 April 2022.(Refer to annexture A2 of the annextures to the aflidavit in support of the application). Upon dismissal, the applicant then filed an appeal by way of a Memorandum of Appeal in the Court of Appeal vide Civil

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Appeal no. 438 of 2022. (Refer to Annexture A3 to the allidavit in support). The said appeal is still pending in the Court of Appeal. I find it improper for counsel for the applicant to seek to introduce the same prayer in Misc. Application no. 0393 of 2024 yet it was disallowed by Justice Henry Kaweesa and an appeal was preferred. The appeal which was registered as Civil Appeal no 438 of 2022 is still pending in the Court of Appeal. With due respect this looks like forum shopping by the applicant.

- 33. This matter is on appeal in a higher court and i find it strange to entertain a matter afresh, which was dealt with by my learned brother Justice Kaweesa and an appeal against his decision was preferred by the applicant and is yet to be disposed off by the appellate court. - 34. The applicant's ground for introducing the said prayer is in paragraph 4 of his affidavit in support of the application where he states that his lawyers brought to his attention new information to the effect that Kyey'une Biromba Mayikolo the plaintiff in HCCS No. 549 of 2016 passed away on 12tt March 2Ol7 long before the ex parte judgement in that suit was entered in his favour against him on 21"1 January 2O2O and that the fact of his death was never brought to the attention ofcourt. The applicant did not attach a death certificate to back up his allegation that the said Bukenya Mayikolo Biromba passed away on l2s March 2017. lnstead, it is the respondent who attached a death certificate from NIRA indicating that the said Bukenya Mayikolo died on 12fr March 2O2O. (See Annexture B to the Respondent's allidavit in reply). In the absence of evidence to the contrary, i am inclined to believe the respondent's version that the said Bukenya Mayikolo Biromba died on 12n March 202O which was after the ex parte judgement had been delivered. - 35. The law also provides a mechanism for adducing new and additional evidence on appeal as long as it can be proved that the said evidence was not available to the applicant during the trial in the lower court. The law that enables a party to adduce new and additional evidence in the Court of Appeal is section 11 of the Judicature Act and Rule 30(1)(b),(2) (3) & (4) and 44 of the Judicature (Court of Appeal Rules Directions. In the case of 11 lPage

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Attorney General & Anor Ve DMW lu) Ltd Civil Application no. 314 of 2O2O, Court recited the exceptional circumstances under which an appellate court may admit new and additional evidence that were laid down in the case of Attorney General Vs Paul K. Ssemwogerere & Org Constitutional Application no. O2 of 2OO4 (Supreme Court) as follows;

- i) Discovery of new and important matters of evidence which after the exercise of due diligence was not within the knowledge of or could not have been produced at the time of the suit or the petition by the party seeking to adduce the additional evidence. - ii) It must be evidence relevant to the issues. - iii) It must be evidence that, if given it would probably have an influence on the result of the case although it need not be decisive. - iv) The aftidavit in support of the application to additional evidence should have attached to it proof of the evidence sought to be given. - v) The application to admit additional evidence must be brought without undue delay. - 36. Court of Appeal in Attorney General vs DMtrI (uf Ltd (supra) held that; "The additional evidence sought to be adduced having been received by the applicants after trial demonstrates that it is indeed new and was apparently unknown to the applicants at trial. The fact that the compensatory orders made by the trial court were primarily premised on the now impugned valuation reports should dispel any questions as to the vitality of the additional evidence to the pending appeal...whereas it might be premature to adduce its decisiveness to the appeal with any form of certainty, the additional evidence would undoubtedly have a significant bearing on it We find undue delay in lodging of the application within three months of the date of filing the appeal". - 37. It is my considered view that the evidence that the applicant seeks to adduce in Misc. Application no. 0393 of 2O23, ought to be adduced in the Court of Appeal to beef up the grounds in the appeal against the dismissal of the 12 lPage

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application for setting aside the ex parte ludgement in Civil Suit no. 0549 of 2016, rather seeking relief in this court.

38. The applicant further seeks to introduce a prayer for a consequential order for cancellation of the certificates of title for property comprised in Bulemezi Block 973 plots 13,14,15 & 16 land at Kigweri which were allegedly created by the respondents out of the original certificate of title to the suit property originally Bulemezi Block 973 plot 2 land at Kigweri acting on the basis of the ex parte judgement and decree in HCCS No. 549 of 2016. This court has held before in the case of Mublru Chrlstopher & 3 ors Ve. Baliyanja Robert Miscellaneous Cause no. OO9 of 2024, that for one to qualify for consequential orders, it must be proved that there is an existing judgement in their favour. In the above case, this court relied on the case of Park Royal Vs. Ugaada Land Commission & Ors Mlsc. Cause no. 46 of 2Ol4 (2015) UGHLD 2, where Justlce Monlca Mugenyi (as she then was) held as follows;

"... Section 777 of the Registration of Titles Act grants the High court powers to cancel a certificate of title...such cancellation would be incidental to the recovery of land by an applicant pursuant to proceedings that are not otherwise precluded by the RTA. This would raise two faceted parameters that must be satisfied for an applicant to properly bring an application under section 777 of the registration of Titles Act. First there must have been a valid recovery of land by the applicant. And secondly, such recovery of the land should have been pursuant to an action or proceedings that are permissible under the Registration of Titles Act"

39. The import of the above decision is that prerequisites to issuance of consequential orders are that the applicant recovered registered land through a judgement acceptable under the Registration of titles Act. The applicant herein who seeks consequential orders does not have a judgment in his favour. To the contrary, he seeks to set aside a judgement that was passed against him. It is on the basis of the said judgement that the 13 lPage

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respondents procured registration of themselves as owners pursuant to obtaining Letters of Administration and later, an order of court substituting them to the suit as legal representatives of the late Bukenya Mayikolo Biromba.

40. In the case of Kallbbala & anor vs. Attorney General Misc. Applicatlon no O7O of 2O15(2O161 UGHCCD 46, Musota J (as he then was) inter alia observed as follows;

" ...the term consequential order denotes an order of court giving effect to the judgment or decision of court to which it is consequential or resultant therefrom. Such an order is normally directly traceable to or flowing from the judgment of a decision duly prayed for or granted by court."

- 41. Closely related to the above, i agree with counsel for the respondents that, plots 13 and 14 which are among the plots that the applicants seek court to cancel are no longer registered in the names of the respondents but in the names of third parties. Evidence was attached to the affidavit in reply revealing that plot 13 and 14 were registered in the names of Byarubasika Ramadhan and Kayongo Yasin and that this fact was known to the applicant through his submission to the Commissioner Land Registration. (Ref to land titles marked G1 and G2l. According to counsel for the respondents, allowing the proposed amendments seeking for cancellation of the titles would be condemning the registered proprietors unheard against the Constitutional provisions on the right to be heard. - 42. As i already stated earlier, consequential orders for cancellation of titles are issued under section 177 of the Registration of titles Act. I have also noted that the respondents got registered onto the titles as legal representatives of the late Bukenya Mayikolo Biromba. Although the applicant is challenging their appointment as legal representatives in Misc Application no. 0393 of 2024, any cancellation should be done pursuant to the law. I do not see any law cited by counsel for the applicants that give me powers to cancel the

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respondents' titles by way of issuance of consequential orders without a judgement to that effect passed by a competent court.

43. In light of the reasons given hereinabove, I hereby resolve issue number one in the negative.

## 44. Issue no 2: Vlhat remedies are available.

Since i have already resolved under issue no.1 that the applicant has not proved sufficient grounds to warrant this court to exercise its discretion to grant an order for amendment of the Notice of Motion, i accordingly disallow this application. Further pursuant to section 27 of th.e Civil Procedure Act, costs follow the event.

In the final result, this application is hereby dismissed with Costs to the respondents.

## Its is so ordered.

-lt d-Lt-e--- day of ...2025 GOD Dated this .....26.

AG. JUDGE

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