[2022] UGHCLD 32

#### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

#### LAND DIVISION

### CIVIL SUIT NO. 183 OF 2015

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- 1. MUWONGE IOANNIS $\cdots$ PLAINTIFFS - 2. NABUNJJE PROSCOVIA - 3. NAMATOVU JACKIE - 4. NAMATOVU TOPISTA - 5. NAMUYIGA MARY - 6. NALUBEGA PERCY - 7. NALUBEGA FLORENCE - 8. NABUKENYA HARRIET - 9. NAMULINDWA LYDIA - 10. NAYIGA CHRISTINE - 11. KAMOGA RICHARD - 12. MUWONGE FRED - 13. MATOVU ROBERT - 14. LUBEGA EDWARD - 20 15. MUWONGE ROGERS - 16. JINGO ABDULLAH - 17. LULE GODFREY - 18. YIGA VOCENT - 19. LUBEGA DAUDI (Biological children & Beneficiaries of the estate of the late Lubega John Baptist)

## 25

#### **VERSUS**

- 1. LWANYAGA FRANK - 2. NAKANWAGI JENNIFER - 3. JEREMIAH MATOVU - <pre>.................................... 4. KIGOZI JAMES - 5. MULINDWA DANIEL - 6. NANSAMBA ROSE - 7. SEBAGALA ALI - 8. THE COMMISSIONER, LAND REGISTRATION

## Before: Lady Justice Alexandra Nkonge Rugadya:

# RULING ON PRELIMINARY OBJECTION TO THE AMMENDED OF THE PLAINT.

#### **Facts:**

By way of a brief background on 25^th August, 2014 the 1^st defendant Frank Lwanyaga and the plaintiff, John Bosco Lubega entered into a transaction under which the 1st defendant claims to 40 have bought the land comprised in Kibuga Block 12, plot 385 measuring 0.24 of an acre at Mengo (Kisenyi), (suit land) at a consideration of Ugx. 800,000,000/-.

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The present suit was later filed against the 1"1 defendant in 2015, vide clull sutt No. 783 oll 2Or5, subsequent to which a conseni was entered into between the deceased rePresented by two of his children who had purportedly obtained powers of attorney from him'

Following his death, his children on 4th February, 2020, (the 1st to 13th plaintiffs) filed itr:l IVo. ⁷⁷⁰⁶o! 2O2O, seekrng a review of the consent judgment on the ground that it had been fraudulently obtained.

Court granted them a hearing and latcr allowed them to file an amcndment to the plaint which they did on 21"r october, 2021. The plaintiffs who wcrc joined byltogether 13 were joined by the 14l]1-20\$ plaintiffs hled and served the amendment to this suit. other defendants were added and the amended defences were in turn also hled and served'

## Prelltninqt-u Oblectlons:

when this suit came up for hearing on 14th December, 2021 counsel for the 1"t defendant raised some preliminary objections against thc amcnded plaint; the joinder of parties and issue of the plaintiffs' locus to join the suit.

He raised other issucs which counsel for thc plaintiffs however objected to as they went to the merits of the entire case and dealt with matters that had alrcady been ruled on by this court in MA No. 17O6 o! 2O2O. Accordingly, the arguments were baseless and a waste of court's time 15

His point was the amendment to the plaint was necessary to enable court adjudicate and determine the real issues in controversy between the parties. That the areas of contention related to the amendment ofthe plaint, lega-l replesentatives ofthe late John BaPtist Lubega andjoinder

of parties to thc onginal Plaint.

t could not agree more with his summarized view on this matter. I will therefore restrict my decision on those three areas:

## Conslderstlon of the lssues courA:

I have studied the pleadings and the points raised in the submissions by the parties, and I need not reproduce them in tlis ruling. 25

The gist of the defendants' claim as I understood it is that the amendments that were introduced by the plaintiffs introduced a fresh cause of action, different from the one as intended under the main su it.

Secondly, that the plaintiffs did not seck prior leave of this court before joining other parties to the suit; a]]d thirdly they neithcr had the interest in thc suit proPerty nor the locus srandii to join the suit. Since these issues are all interrelated I will deal \,\.ith them jointly'

5 It is not in contention that Olpll Sult o. 783 o!2075was originally frled against Mr. Lwanyaga Frank, the 1"( defendant by John Baptist Lubega, tie father of the plaintiffs and to the 2n'i-6th defendants in the amended plaint.

The plaintiff however died on 46 February, 2O2O and some of the plaintiffs hled an application for a review of the consent which through his attorneys he had purportedly signed with the i"t defendant, disposing off the suit land. The said application for review was allowed by this court.

In the amended suit, the plaintiffs seek to cha.llenge thc consent and among othel documents and transactions, the authenticity of the powers of attorncy issued by theil father to the signatories of the consent. 10

At the initial stage of the hearing the plaintiffs, none of whom had been parties to the original suit, but several ofwhom had been parties to the revicw application, applied to amend the suit

#### under Order 6 rule 79 oJ the CPR. 15

The said rule provides that a court may at any stage of the procecdings allow either party to alter or amend his/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.

- In line with the above rule, the principles recognizrd by courts as governing that discretion exercisable by court have been summarized in a number of cases, and these boil down to: real questions in controversy to be determined between the parties; and the fact that justice must be administered without undue regard to technicalities. 20 - Thus an amendment should not to work an injustice to the other side. As far as possible, all amendments which avoid multiplicities should be allowed. Finally, that an aPplication that is made malafidq or which is implied or expressly prohibited by law should not be Eranted' 25

Thc court however would bc barrcd from excrcising that discrction if the intended amendment has the effcct of substituting one distinctivc cause of action for another. IGASO Tr\$nqmrt srulses /Bus, Ltd us obene (7990'-1994) EA 88i Mulowooza & BTothefs Ltd lts sho,h & co. ,td SccA No. 26 ol2O1O).

chlterlg qnd. Ro.o ln thelr commenlary on the I',,dlo''l. clvll Procedure code which ts tn paramater[a to our cirdt Procedure Rutes, 6lt page 2278, givcs reinforcemcnt to the general

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rule that a court w.ill not in the exercise of its discretion a-llow an amendment converting a suit of one cha-racter into a suit of another character; or sanction the altering or substitution of one distinct cause of action for another or change of the subject matter of the suit'

In its ruling dated 7th October, 202 1, this court had this to say

5 I haue duly noted. thal lhis i,s a dis.loinl ed family and all pending mallers concerning the appointment of adminislrators and. distibution of properlV ought to be dealt with and/ or resolued. through the family court. This court should therefore restrict itself to the ualidita of the transaction belween the 1"1 deknd.ant (not a member of the familg) and the deceased....

> In the ptemises the plainttffs are required to file an amendment to the plaint and serue the dekndants bV 2 1 \* October, 2O2 1.....

I have carefully perused the orignal plaint hled by the late John Bosco Lubega as well as the amended plaint filed by his children rn 2021.

In the amended suit, the plaintiffs seek orders and dcclarations that:

a). the l(lte Lubega John tsqpttst Lubega has neuer sold lhe suil land comprised in Klbuga Block 72 Plot 385 l,;nd. at Mengo Klsengl ulllage, to the 1.t defendant, neitler has the deceased euer received consideration for the same from the 1! defendant'

b). the purported sale of land agreemenls belween the l"t dekndant and the late Lubega John Baptist listed hereof are fictitious, fraudulent and of no legal effect

- i. the Purported sale of land agreement betueen the deceased Lubega John Baptist and l! defendant daled 25tt' Auryst 20 14. - ii. htrported acknouledgment of receipt betueen the deceased and 1'l defendant dated 28h August 2014. - iii. Anothcr acknowled.gment betueen the deceased and l defendant dated 6th Odober 2014. - iu. Acknouledgment of receipt betueen the deceased and the 1"1 defendant dated l't December 2014, gt' January 2O15,25th MaA,2O16; 1Sth December 2016 and 12th June 2016. - u. Ang agreement dnd or acknou)ledgment executed by and/ or at the behest of the defendants in relation to land in dispute.

c). A declaration that the 8th d.efendant's acts of enteing the l defendant's name on the Late Lubega John Baptist's certifcate of title, u)hich was encumbered bg the late's caveat,

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ld plainttffs caueal and lvassuna Reslg's caueat inclusive 2 courT orders, forbidding the regtstration of qng person as transkree or propietor thereof is illegal and fraudulenl.

d). A declaration that Block 72 Plot 385 land at Mengo trilsengl belongs to the deceosed Lubega John Baptisl's estate.

e). A declaralion tho'l the le, 2^'1 , ?'t , 4th , sth , 6th , and 7h defendanls have no legal, benefi.cial, or equitdble inlerest in the suit properly compised in Klbuga Block 72 Plot, 985 land at lfrengo Klsengl, tuhich has since been regislered illegally into the name of the ls defendant bV the 8th defendant.

J). A declatation thql the l defendant's name was registered illegally on lhe late Lubega John Baptist's title.

g). A declaration that defendants' actions in dealing u.tith suit lqnd compised in Kibuga Block 12 Plot 385 la d at Me^go Kisengl against the late Lubega John Baptist and beneficiaries of his estate are unlawful and fraudulent.

h). An ord.er for cancellation of the 1"1 defendant's names as propietor from the cerTificate of title and re-straining the names of the late Lubega John Baptisl as ProPrietor.

i). A permonent injunction restraining the 1st, ?tt, 3Rt, 4ttt, Sth, 6th, qnd V , defendants and their agents assignees and succes.sion in title from claiming ounership or enteing upon, interfering uith and in anyuag dealing uith or in lhe suit land.

j). General damages

k). Exemplary damages 20

i) costs of the suit.

lt paragraph 3 of the original plaint the plaintiffs claim against the defendant was:

a). a d.eclaration that the plaintiff hos never sold the suit land compised in Klbuga Block 12 Plot 3aS at Mengo KisenAi Vitlage to the dekndant and neither has he euer receiued consideration for the same from the defendant.

b). A d.eclaralion that the actions of the dekndant in dealing with the suil land compised in Klbuga Block 72 Plot 385 at Itre go are unlauful and fraudulent.

c)). An order lhat lhe Commissioner for Lands Registration removes the Cavea| which was 30 lodged on the plainttffs cerlificate of Title bA the dekndanl.

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lt paragraph 6 thereof, the particulars of fraud were:

a).thedefend.antlodgedacaueatonthesuitlanduhenheisnottheoutnerorwhenheis not a bonrrfi.de purchaser for ualue of the suit lqnd and no interest u)hqtsoeuer in the suil land.

b).thedefend.antpurporledtohaveboughlthesuitlandfromtheplaintiffuhereasnot.

c)thedekndqntgaueawartingtothetenantsonthe'landtovacateiloriskeuiction without authoitA of the ptaintiff.

The deceased purportedly denied ever having sold the land comprised in Block 72 Plot No. 3AS at I e^go Klsengl vlllage to the l defendant, thc sole defendant in that suit. He also denied ever having rcceived any consideration from him in rcspect of that plot' 10

In his written statement of defence filed 13rh May, 2015 the defendant however refuted those claims and averred that he had bought the suit land in the presence of the plaintiffs advocates and his adult children: Jeniffer Nakanwagi and Matovu Jeremiah who also witnessed the land

sale agreement.

He therefore claimed to be a bonafide purchaser and maintained that payments had been made to the deceascd, in the prcsence of his children, a claim which the plaintiffs in the amended suit however sought to challenge. The said children were added as defendants in the amended suit.

- In the original suit, the following were the issues raised: 70 - T. WhetherthefirstdeJendanthadarlghttolodgeaCaoeatonthecertlfr'cateot Tltle to the sult land. - 2. whether the fitst deleadant boraght the sutt land Jrom the pla:t'ltqf, Joh,[ Baptlst tubega. - g.whetherthefr"stdeJend.ant:!rlo,so'bon1fi,depurchaserJorualuelnrespectoJthe sutt land.

The 1"r defendant also presented a land sale agreement datcd 25th August, 2014 which was purportedly signed by the deceased, in the presence of his childrcn and counsel from M/s s.scglrga & Co. Advocates. 30

In the said agrecment, he claimed to have paid ugx aoo,ooo,ooo/=. He also presented various receipts to prove that the deceased had acknowledged the various sums remitted to him in several installments.

Ut^0\*t' It is also a fact that on lsl April, 2015, the deceascd had purportcdly filed clutl sult llo. I83 o/ 20 75. He is later alleged to have made a disclaimer on l Sth May, 20 16 to the effect that he never filed that suit

orr 24th May,2016, however, the deceased entered into the now disputed consent with the defendant in settlement of that suit. 'IVo of his children, Jennifer Nakanwagr (1"t defendant) and Daniel Mulindwa (5s defendant), purporting to hold powers of Attorney donned to them by the deceased on 1ls May, 2016, signed the consent.

It was witnessed by two of their siblings and his counsel Ali Sebbagala who was also added as one of the defendants in the amended suit on account of the role he is said to have played in the 10 transactions

Following the death of the plaintiff, the 1st to the 13th Plaintiffs hled Mlscellaneo|.s APPalcatlon No. 77c/6 of 2O2O: an application for a review of the said consent. court after perusing the pleadings and submissions in which they raised a number of triable issues, decided to give the applicants/ plaintiffs a hearing and thcreupon a.llowed them to amcnd their pleadings which they did.

The defendants, counsel however submitted that the amended plaint had altered the cause of action in the original plaint; added several new parties without first seeking leave ofcourt. Indeed as submitted, there is also no disputing the fact that when they amended the plaint to allow them join as parties to the original suit they had done so in their individual capacities; and had 20 done so before securing letters of administration for the estate of their father.

In short therefore, none of the plaintiffs joined the suit as a nominated legal representative of the estate of their father in the amended plaint. It is not clear how many children or other beneficiaries of the deceased were not joined as parties to the amended suit'

But what is clear is that none of those who were made Parties in the amended plaint had the 25 authority to represent the said beneficiaries under the estate. Regardless of whether or not the suit was amended, that to court was a mandatory legal requirement which the plaintiffs failed to lake into account

The argument therefore that court had the discretion to appoint the lega.l rePresentation to continue with the suit; and that the plaintiffs had the same right to relief against the defendant

30 in the original suit and as such entitled to the relicfs sought under the amendment seemed to ignore the fact that it had to be the plaintiffs' family iniative to nominate and then move court to appoint the legal representatives, a procedure that they did not follow'

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The law governing the above process is clear and unambiguous. order 24 (7) of the cPR provides clearly that the death of a party does not causc a suit to abate if the cause of action survives or continues

o"der 24 rute g (7) ol the cPR further provides that where a sole plaintiff dies and cause of action survives or continues, the court can upon application made for thal purPose cause the legal representative of the deccascd plaintiff to be madc a party, and shall procced with the suit. 5

The substitution must first be ordercd bcfore the court can proceed or continue to hear the case.. The application, as per order 24 ntle 72 oJ the CPR is to be made by chamber ssmmsn5 and evidently the procedure as laid out undcr that rule is mandatory.

- 10 similarly in sectlon 222 o! the successlon Act court has powels to appoint a nominee, limited for the purpose of reprcsenting the deccased in that suit until the suit is disposed of. By necessary implication, the only way the plaintiffs could have continued w.ith the origrnal suit would have been to seek prior leavc ofcourt to appoint a representative, nominated by the family to continue with the suit. - 15 The order made by this court to amend the pleadings did not allow the plaintiffs to add other parties. It was procedurally wrong for them to assume that the order was an automatic gate way to add every other pa-rty as they wished. The additions substantially altered the suit from its original form.

20 The requirement to seek prior leave of court therefore equally applied to joinder of other parties to the amended suit, which is essentially governed by ord.er 7 ,.ule 70 (2) of the clvll Procedtre Rutes. The amendmcnt of the pleadings and addition of partics arc obviously governed by separate rules.

ln respect of thc joindcr of parties, Order 7 rule -IO fa states

"The court nag st dng stqge o! the proceedlngs either upon or wlthout the oippllcq:tlon o.f etther partg, and. on such terms @s rndg aPPeqr to the court to be Just, order th(]:t the nan7.e o! ang party lmProPerrg Jolned, whether 4s Plqlnttf or d.ejendant, be struck out, d:r.d tha,t the nqme ol ang Person urho ought to haue been lolned, uhether as plai,l.t\$ or detendant, or uhose presence belore the court mqg be necessary ln order to eno,ble the court effectuallg ond completelg to \*dludicate upon and settle oll gue.stions lnvolaed ln the sult, be qdded"

The joinder of parties in the pecutiar circumstances of this case could only have been achieved upon prior application to court by the plaintiffs to achieve that objectivc.

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The procedure for bringing such an application is provided for under O"der 7 rulc I3. It must be established that the party to be joined has a high interest in the case and that the orders sought in the main suit would directly legally aJlect the paJty to be added.

5 Thus in the case of l)eparted Aslc,,ls Propertg Custodlo,'a Board v Jo.ller Brothers Ltd [7999] E. A 55, court observed that for a pa.rty to be joined on ground that his presence is necessary for the effective and complete settlement of all questions involved in the suit, it is necessary to show either that the orders sought would legally affcct the interest of that person and that it is desirable to have that personjoincd to avoid multiplicity ofsuits. (Gokaldas Laxl,m,c,das To,n a v stote Rosc Muglnzd H. C. C. S No.7O76 oJ 7997 [1990-79911 KALR 21).

There is no doubt that the administrator or appointed legal representative of the estate of John Bosco Lubega held a huge stake in this suit as the trustee of the estate. 10

Rules are hand maidens ofjustice and in my view, the requirement for prior leave ofcourt before adding other parties or altering the cause of action during the course of the trial to suit the plaintiffs claim was designed for an objective which had originally not been intended by their

late father. 15

> The amendment in its form appeared as another suit, or a child ofthe original suit: with its own a distinctive cause of action. These were not mere technicalities that nrtlcle 126 (2Ne) ol the Constltutlon was intended to resolve.

- Thus not only were new parties added without court sanctioning. It also raised new facts, issues and prayers which had not been raised in the origrnai suit. Save for the l"t defendant, the rest of the parties who had been added were new in relation to a matter that ought to have been restricted to the validity of the consent between two individua.ls, one ofwhom had since died. He was not represented in the amended plaint. 20 - ln its present form, the amendment not only therefore substantially alters the original cause of action but is also filed by persons who had no authority or locus to file the suit on behalf of the estate of the deceased, who had been a party to the suit. 25

In Mulotuooza & Brothers Ltd. as N Shah & Co. Ltd, Ctull appeal no. 26 of 2O7O court had this to say:

IJ a pleading does 'rot dlsclose .... or locus standll the court ls not requlred. to lnquire lnto rnerlts oJ the mqln cq.se. It uould. be actlon tn tutllttg. Courts are not meq.nt to anaard r,r.oot fudgments, The danger also lles ln cond,emnlng o. parag who

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## should not have been condemned. (CRANE Bo.^k Ltd. fn receivershtpl us Sudhtr Ruparello. q.nd anor CACA No. 32O oJ 252 of 2019).

It is emphasized that the unfailing requirement is that locus standi to institute a suit, by whatever mode prescribed must be established at the time the suit is filed. This is done by expressly pleading facts that grve the plaintiff the Iegal standing to institute the suit.

It should not be left to the court to guess where a plaintiff derives tlle locus standi to file the suit. It must be expressly clea-r on the facts pleaded; particularly those that give rise to the cause of action in the plaint or counterclaim. The suit in its form as amended, is therefore vexatious to the 1"1 defendant.

This court also in passing noted that the deceased and 1"t defendant had been jointly sued by one Nassuuna Resty in 20 16, after the consent order was made. The ruling was obtained in their favor vide: MA No. 7799 ol 2O16 on 6th June, 2018. 10

It is to be noted that in that ruling, court declared the consent judgment lawful and enforceable. The deceased prior to his demise in 2O2O and, his children did not challenge the orders made in

that application. The deceased did not chatlenge the consent order when he was still alive. 15

The matter only came up after his death, some six years after the sale agreement. The above would show therefore that by the time he passed on, the property in issue had already ceased to be part ofthe estate, the 1"i defendant had already been issued with a title, a]1d the deceased never challenged his registration.

As correctly submitted, in its ruling of l6th June, 2021 vide: ln lscellaneous Appllcoltlon IiIo 1706 oJ 2O2O this court gave the plaintiffs a hearing which gave them opportunity to present its evidence on the issue of whether or not there was a valid sale of the suit land to the 1sr defendant. 20

25 ln so doing and obviously in error, this court surpassed its own ruling under .uA No. ll99 of 2O16 by which the consent order had already been declared lawful and enforceable. Since no party took the trouble to have it discharged, it therefore remained binding not only to this court but also as a judgment in rem.

In the south African case: lVlcholcs llango{s Manf'eetnns & others us szl JVcfionat pcrks, ccse.ilo. o777,rh,e court ruled that a judgment in rem binds all parties even when they are not parties to the proceedings.

They are stopPed from averring that the status of persons or things, or the right to title to property are other than what the court has by its judgment declared it to be.

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Under Order 7 ntle 77 (Q and. (e)o, the CPR court ought to reject (as I now hereby do) a plaint which is barred by law and one that may be found to be vexatious to the defendant.

It is on those grounds as enumerated above that I therefore uphold the objections raised by the 1"t defendant, with costs to the defendants.

5 The suit is accordingly dismissed.

^A Are\*^ lexandra Nkolle Rwgq.dga

25th March, 2022

lAblI Judge )olb') "'

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