[2023] UGHCLD 206

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

$\mathbf{r}$ $\mathbf{r}$

**MISCELLANEOUS APPLICATION No. 962 of 2022**

(ARISING FROM CIVIL SUIT No. 555 of 2017)

## NAKAMATTE NAMUSISI ================== APPLICANT **VERSUS**

- 1. SALONGO SSENYANGE - 2. SSEMUKUYE - 3. ROSE KITAKA (Administrator of the Estate of the Late Yuda Kitaka - 4. MUTEBI RONALD - 5. COMMISSIONER REGISTRATION LAND =================================== **RESPONDENTS**

## **BEFORE: HON. JUSTICE FLAVIA NASSUNA**

## RULING.

- 1. This application was brought under the provisions of S.98 of the Civil Procedure Act, S.33 of the Judicature Act, O.1rr10 and 0.6rr19 and 22 of the Civil Procedure Rules. It was seeking for orders that: - a. Leave be granted to remove Yuda Kitaka, the 3^rd Defendant who had been removed by court before but was mistakenly included in the amended plaint dated 20^th February, 2020, - b. Leave be granted to add Rose Kitaka, the administrator of the estate of the late Yuda Kitaka as a party to the suit. - c. Ssemukuye, the $2^{nd}$ Defendant whose name was omitted in the amended plaint by oversight be maintained in the pleadings - d. Costs of the Application be provided for.


were supported by an affidavit sworn by the applicant. Grounds of the application were laid in the chamber summons and affidavit in support. Briefly the grounds were that;

'- - ^o... ,. J

- a) the applicant through her first lawyers; M/s Kajeke, Maguru & Co. Advocates filed an amended plaint on the 26th day of October, 2018 which included Ssemukuye as a second defendant. - b) she then filed another amended plaint on the 20th day of Februar5r, 2020 which by oversight removed Ssemukuye, the 2"d defendant and also by oversight added Yuda Kitaka, a deceased person. - c) on the 17n day of February, 2022 , she received certified copies of documents from the Commissioner Land Registration and that is when she got to know that Yuda Kitaka was deceased and that there was an administrator to his estate one Rose Kitaka. - d) the Applicant has been informed by her lawyers that the court record shows that apart from the l"t and 2"d defendants who have a defence on record, the rest of the defendants have no defence and hence the removal of Yuda Kitaka and adding his administrator does not prejudice their case in any way. - 3. The respondents filed an affidavit in reply which was sworn by one Mukasa Charles, an advocate of the high court by


which they called upon court to dismiss the application with costs. Briefly they maintained that;

- a) the application is barred in law and an abuse of court process. - b) the applicant's affidavit in support of the application is full of falsehoods, is a total nullity, a perpetration of illegalities, and barred at law. - e) in specific reply to the orders sought, it is a settled principle of law that pleadings cannot be amended to substitute a nonexisting party. - f) before the applicant could amend the pleadings, she formally applied for leave to amend the plaint before this honourable court and the application was granted on merit. It cannot therefore be an oversight to remove a party plus all the facts constituting the action against him, after obtaining formal leave of court. - g) the previous Counsel for the applicant made an oral uncontested application on the l"t of October, 2Ol8 to this court for leave to amend and remove Yuda Kitaka as a party on allegations that they had found out that he had long died. - h) on the 26th of October, 2018, the applicant filed the 2"d amended plaint with Salongo Ssenyange, Ssemukuye and Commissioner Land Registration as defendants. - i) 2gtt' Februar5r, 2022, the applicant through her new lawyers filed the 3.d amended plaint with Salongo Ssenyange, Yuda Kita-ka, Mutebi Ronald and the Commissioner Land Registration as defendants.

$\mathcal{L} = \mathcal{L} \cup \mathcal{L}$ $\label{eq:1} \mathbf{x} = \begin{bmatrix} \mathbf{x} & \mathbf{x} \\ \mathbf{y} & \mathbf{y} \end{bmatrix}$

- j) That claiming the removal and adding of parties was an oversight is being deceitful to this honourable court. - 4. The issues to be decided by court are; - a)Whether the affidavit in reply sworn advocate of the respondents should be struck offthe court record- - b)Whether the applicant should be granted leave to amend the plaint as prayed. - 5. Both parties filed written submissions which I have carefully studied together with the pleadings and record of proceedings - a) In his submissions counsel for the applicant raised a preliminary objection to the effect that the affidavit in reply filed on beha-lf of the Respondents is defective for want of authority and that the same should be struck off court's record so that the application remains uncontested. He called upon court to be guided by decision of court in the case of Sophie Ndagire v. Kibinge Ahmed HCMA No. 1876 of 2OL7 where it was held that u...where ^a deponent sweo;rs an afJidadt onbehalf of another, he or she tnust shout thdt he had authoritg to swear the alfidauit on their behalf...""fhat since Mukasa Charles, the advocate, had no authority to swear an affidavit on behalf of the I"t and 2"d Respondent, the a-ffidavit should be struck off.

Further that Order 10 rule 2 of the Civil Procedure Rules allows court at any stage of the proceedings to add or strike

$\mathbf{z}=-\mathbf{z}$ $\mathbf{x} = \begin{bmatrix} \mathbf{x} \\ \mathbf{x} \end{bmatrix}$ out a pa-rty as a plaintiff or defendant where necessar5z' He reiterated the facts laid out in the applicant's a-ffidavit in support of the application and prayed for leave of court to have Rose Kitaka, the administrator of Yuda Kitaka's estate to be added to the suit.

b)Counsel for the respondents on the other hand submitted that he swore the a-ffidavit in reply in his capacity as the advocate in personal conduct of the case. That court should be persuaded by the decision of court in the case of Electro-maro. Uganda Ltd v. Oryx Oil Uganda Ltd, HCMA No. 251 of 2O2O wherein the trial judge stated "ft is clear to me that deponing to an alJidauit is one of the acts authorized bg low that can be done either bg the partg thetnselaes or bg a recognized agent or bg an adaocate. Just like a pdrtg appearing them"selaes, there is no requirement for a recognized agent or o;rt adaocate to turnish proof of authoritg to plead on behalf oJ their principaL.."

He further submitted that the plaint on the court record in the main suit should be rejected for containing a non-existent party, Yuda Kitaka - a deceased person. He relied on the case of MM Sheik Dawood v. VG Keshwala & Sons HCCA No. 39 of 2OL4 in which Justice Christopher Madrama held that pleadings preferred against a non-existent parff are incurably defective and cannot be allowed to remain in the judicial process. Counsel a-lso cited the cases of The Trustees

$\mathbf{a} = \mathbf{a} \mathbf{a}$ $\mathbf{v} = \frac{1}{\sqrt{2}} \mathbf{v}$ of Rubaga Miracle Centre v. Mulangira Ssimbwa HCMA No. 576 of 2o,o,6 and Mulangira Ssimbwa AKA Afidra Milton v. The Board of Trustees; Miracle Centre and Pastor Robert Kayanja HCMA No. 655 of 2OO5 where Justice Remmy Kasule held that khere the amendment by way of substitution of a party purports to replace a party that has no legal existence, the plaint must be rejected as it is no plaint at all.'He therefore prayed that on the basis of these authorities, court should not only dismiss the application, but the suit as well.

Lastly, that this was the 4th Application to amend the plaint and introduce parties that had previously been removed with leave of court and that court should intervene and bring an end to the mess being occasioned on the court record.

## 6. Decision of court

### Issue 1:

Whether the affidavit in reply sworn by advocate of the respondent should be struck off the court record.

After carefully studying the record of pleadings and submission of parties I have noted as follows. It is true the affidavit in reply in this matter was sworn by an advocate in personal conduct of the case. It has already been settled in by the supreme court in the case of Mbarara Municipal Council v. Jetha Brothers Ltd, Supreme Court Miscellaneous Application No. 1O of 2O2L, where it was held that;

⁶ x\\*

$\begin{array}{cc} 2 & \cdots & 2 \end{array}$

$\mathbf{x} = \frac{2}{\sqrt{2}}$

"... Affidavits can be sworn by anyone to prove a set of facts, and an advocate is not an exception. An advocate is therefore not prohibited to swear an affidavit where necessary especially on matters that are well within his/her knowledge."

In the instant case, Mr. Mukasa Charles swore the affidavit in reply as counsel in personal conduct of the matter, having full knowledge of the proceedings and what had happened in court, since the suit was filed in this court and the subsequent applications that arose therefrom.

It was therefore not necessary for him to obtain authority from the $1^st$ and $2^nd$ Respondents since he had clear knowledge of all facts pertaining to this case. For that reason the affidavit in reply can not be struck off and I hereby resolve the $1^{st}$ issue in the negative.

#### $$

## Whether the applicant should be granted leave to amend the plaint as prayed.

Order 1 rule 10 (2) of the Civil Procedure Rules provides;

"The court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable

$\mathcal{F} = \mathcal{F} \cup \{0,1\}$ $\label{eq:1} \mathbf{x} = \frac{1}{\mathbf{x}}$

# the courA elfechtallg and cotnpletelg to adjudicate upon and settle all questions inaolaed in the srit, be added.'

I must note that this application was supported by affidavit evidence. In paragraph 3 of her affidavit in support of this application, the applicant stated she found out that Yuda Kitaka had died and had al administrator called Rose Kitaka when she received certified copes of documents from the Commissioner Land Registration on 17th Febrwary 2022. However, a perusal of the court record shows that on the l"t of October, 2018, Mr. Kajeke counsel for the applicant then informed court that he had learnt that the 3.d defendant, Yuda Kitaka was deceased and he then made an oral application for leave to arnend ald have him removed from the plaint which leave was granted. It is therefore not true that the applicant learnt about the death of Yuda Kitaka in 2022 as she claimed in her affidavit in support. I find that the aflidavit in support of the application was full of false hoods and cannot be relied upon. In the case of Eric Tibebaga v. Fr. Narsensio Begumisa & Ors. Civil Application No. 18 of 2OO2 it was held that an aflidavit riddled with falsehoods cannot support an application before court.

I also note that Yuda Kitaka was added to this case in 2OIa by way of amendment. However, the record shows that letters of administration to his estate were granted way back on 12th July 2012, meaning that at the time the case was filed against him he was already dead and there was already an administrator. It was therefore erroneous to Iile a suit against the deceased

$\mathbf{v} = \mathbf{v}$ $\mathbf{c}$ person. The suit against him was thus a nullity and court cannot allow the applicant to amend the plaint to rectify a nullity.

I further note that the plaintiff {iled this case way back in 2Ol7 . Since then, the plaintiff has amended the plaint four times by way of adding and removing parties. Whereas the law a-llows parties to amend pleadings at any stage, there should be a limit as to the number of times a party can be allowed to amend so that the case can proceed. In my view, endless amendments do not only occasion a miscarriage of justice to the other parties who are constantly required to respond, but would also be tantamount to an abuse of court process. The plaint in this case has been amended several times and there are four plaints on record as follows;

| | Date of filing | Plaintiff | Defendant(s) | | |----|----------------|--------------------|--------------------|--| | 1 | t /8l2ot7 | Nakamatte Namusisi | Salongo Senyange | | | | | Justine | | | | 2 | 2e l6l2or8 | Nakamatte Namusisi | -Salongo Senyange | | | | | Justine | -Semukuye | | | | | | -Yuda Kitaka | | | | | | -Commissioner Land | | | | | | Registration | | | /) | 26/tOl2OL8 | Nakamatte Namusisi | -Salongo Senyange | | | | | Justine | -Semukuye | | | | | | -Commissioner Land | | | | | | Registration. | | | | | | | |

D+

$\mathbf{E} = \mathbf{E} \cdot \mathbf{E}$ $\mathcal{L}^{\mathcal{L}}$

| 4 | 20l2l2O2O | Nakamatte Namusisi | - Salongo Senyange | | |---|-----------|--------------------|---------------------|--| | | | Justine | -Commissioner Land | | | | | | Registration. | | | | | | | | | | 20/2l2O2O | Nakamatte Namusisi | Salongo Senyange | | | | | Justine | -Yuda Kitaka | | | | | | -Mutebi Ronald | | | | | | -Commissioner Larrd | | | | | | Registration | |

It is not even clear why and how the plaintiff filed two plaints with different parties on 2012/2020. Granting yet another application for leave to amend would be an abuse of court process.

For all the reasons advanced above this application hereby fails and is accordingly dismissed with costs to the Respondents.

| Dated at Kampala trris \d-* | day of | 2023. | |-----------------------------|--------|-------|

FLAVTA NASSIINA MATOVU. Judge. a"-+-,\

$\mathcal{L}^{\mathcal{L}}_{\mathcal{L}}$ $\mathcal{L}(\mathcal{L}) = \mathcal{L}(\mathcal{L}) \times \mathcal{L}(\mathcal{L})$