[2024] UGHC 638


# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA MISCELLANEOUS APPLICATION 156 OF 2023** 5 **(ARISING FROM HCT-05-LD-CS-0111-2022)**

## **NATIONAL ANIMAL GENETIC RESOURCES CENTER AND DATA BANK -- APPLICANT**

## **VERSUS**

## **THE REGISTERED TRUSTEES OF CHURCH OF UGANDA -------------- RESPONDENT**

10 **BEFORE:** Hon. Justice Nshimye Allan Paul M.

#### **RULING**

#### **REPRESENTATION**

The Applicant was represented by Advocate Edwin Tabaro from M/s KTA 15 Advocates while the Respondent was represented by Advocate Oine Ronald from M/s Tumusiime Kabega & Co Advocates.

#### **BACKGROUND**

The application was brought under Section 98 of the Civil Procedure Act Cap 71,

20 Section 33 of the Judicature Act Cap 13, and Order 6 Rules 19 and 30 of the Civil Procedure Rules SI 71-1 seeking orders that;

- 1. This Honourable Court grants leave for the Applicant to amend its Written Statement of Defence (WSD) together with the counter-claim both dated 12th October, 2022 in Civil Suit No.111 of 2022 which is pending before this - 25 Honourable Court between the Applicant and the Respondent. - 2. Costs of the application be provided for.

The application is supported by an affidavit deponed by Ninsiima Mark – the Estates Manager of the Applicant; and it is opposed through an affidavit deponed by Brian Kabafunzaki – an Advocate of the High Court practicing with M/s Tumusiime Kabega & Co Advocates.

## **GROUNDS**

- 5 The grounds of the application as set out in the chamber summons are as follows; - a) The Respondent instituted Civil Suit No.111 of 2022 against the Applicant for inter alia; a declaration that the Applicant trespassed on their land comprised in Freehold Register Volume MBR324 Folio 8 Block 102 Plot 2 situate at Kayonza, Kikatsi, Nyabushozi in Kiruhura District (the suit land). - 10 b) The Applicant promptly filed a Written Statement of Defence together with a counter claim wherein it denied all the allegations set forth in the plaint and sough cancellation of the Plaintiff's Freehold certificate of title on grounds that it was illegally obtained over the Applicant's already existing leasehold certificate of title in respect of the same piece of land (the suit land). - 15 c) That while the Applicant was discussing its case with its Advocates in preparation for the hearing, it was realised that the Applicant had inadvertently omitted to disclose some material facts and vital documents that ought to have been part of its pleadings. - d) That It is necessary to amend their pleading in order to determine the real

20 questions in dispute between the parties.

- e) That the proposed amendment shall not prejudice the Respondent in any way and it is in the interest of justice that the application is granted. - f) The proposed amendments do not introduce a new case of action but take into consideration the fact that the Applicant has a better and prior interest in - 25 the suit land. - g) The proposed amendment shall prevent a multiplicity of suits.

## **SUBMISSIONS**

### **Applicant's submissions**

- The Applicant filed its written submissions on 18th 30 September, 2023 wherein four issues were raised; - i. Whether the proposed amendment will work injustice to the Respondent. - ii. Whether the proposed amendment will avoid a multiplicity of proceedings before this Honourable Court.

- iii. Whether the application introduces a new cause of action and is malafide. - iv. Whether the proposed amendment is barred expressly or impliedly by law.

Counsel for the Applicant relied on Order 6 Rule 19 of the Civil Procedure Rules SI 71-1 and the case of **GASO TRANSPORT SERVICES VS OBENE [1990-1994] EA 88**

- 5 for the principles that this Court ought to apply in considering amendments. Counsel also cited **MULOWOOZA & BROTHERS VS N. SHAH & CO. LTD (SC CIVIL APPEAL NO.26 OF 2010)**. Counsel argued that the Applicant has discovered new facts and documents which fundamentally touch the subject matter but were not available at the time of filing a defence. He contended that the amendment will - 10 not cause any injustice to the Respondent *inter alia* because; the matter is still at pre-trial stage, the respondent shall be allowed by Court to respond to the amendment and any delays can be compensated for by an award of costs.

Regarding the second issue, counsel submitted that instead of filing a different 15 claim for illegality and fraud which would have led to a multiplicity of proceedings, the Applicant decided to amend its pleadings to introduce additional causes of action in its counterclaim. Counsel cited **CRANE BANK LIMITED VS SUDHIR RUPARELIA & ANOTHER (SC CIVIL APPLICATION NO.02 OF 2021)** for the position that amendments which avoid multiplicity of proceedings should be 20 freely allowed.

On the third issue, counsel argued that amendments that seek to unite different causes of action should be allowed and relied on the case of **MOHAN MUSISI KIWANUKA VS ASHA CHAND SCCA NO.14 OF 2002** in support of his submission. It 25 was submitted that while the Applicant initially based its cause of action on trespass to land in the counterclaim, a survey was later carried out and it was discovered that the Respondent's registration was illegally and fraudulently procured. He added that the application is brought in good faith so as to enable Court resolve all matters in dispute.

Regarding the last issue, it was submitted that there is no law which bars the intended amendment and relied on the authority of **BONABANA VS**

# **BYAMUGISHA BABY COACH & SONS TRANSPORT CO. LTD AND OTHERS MISC APPLICATION NO.100 OF 2022.** Counsel prayed for the application to be allowed. **Respondent's submissions**

The Respondent's submissions were filed on 26th September, 2023.

- 5 On the issue of whether the application introduces a new cause of action, it was submitted that the Applicant has totally abandoned its pleadings and introduced a completely new cause of action contrary to the law. Counsel contended that the introduction of a new cause of action will cause injustice and prejudice. - 10 Counsel for the Respondent further argued that the proposed amendment is barred by law for introducing a new cause of action. It was further argued that the main suit is time barred and relied on the case of **DIMA DOMINIC PORO VS INYANI GODFREY AND ANOTHER CIVIL APPEAL NO.0017 OF 2016** in support of its submission. Counsel prayed for the application to be dismissed with costs.

## **Applicant's rejoinder**

The Applicant's submissions in rejoinder were filed on 2nd October, 2023. On the issue of whether the application introduces a new cause of action, counsel argued that the proposed amendment will not only maintain the cause of action of 20 trespass, but add others like recovery of land, fraud and illegality. Counsel contended that the application seeks to unite different causes of action, but not to introduce new ones. Counsel reiterated his earlier submissions and prayed for the application to be allowed.

### 25 **DETERMINATION**

I will handle the issues collectively.

In principle this Court is empowered by **ORDER 6 RULE 19 OF THE CIVIL PROCEDURE RULES SI 71-1** to allow any litigant to amend their pleadings under certain circumstances stated in the law as cited hereinbelow

It is trite that this court has discretion to order for an amendment of pleadings as is provided in Order 6 Rule 19 CPR which provides that.

*The 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 questions in controversy between the parties.*

- 5 The Supreme Court guided on the Court's exercise of discretion when dealing with an application to amend pleadings. In **GASO TRANSPORT SERVICES (BUS) LTD VS OBENE 4 OF 1994 (1990-1994) 1 EA 88,** the Supreme Court stated that. - 1. The amendments should not work injustice to the other side. An injury 10 which can be compensated by the 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 malafide should not be granted. - 15 **4.** No amendments should be allowed where its expressly or impliedly prohibited by any law.

The Supreme Court of Uganda further guided on the handling of allegations that an amendment introduces an entirely new cause of action, that, the test that 20 needs to be applied before the amendment is allowed or rejected, is whether the proposed amendment introduced a distinct new cause of action instead of the original or whether and in what way it would prejudice the rights of the opposite party as was stated in **MUWOLOOZA & BROTHERS V N. SHAH & CO. LTD SCCA 26**

# **OF 2010**

The evidence of the applicant on court record is to the effect;

- 1. That the respondent filed Civil suit 111 of 2022 claiming that the applicant herein had trespassed on its land (see paragraph 3 of the affidavit in support). - 30 2. That the applicant herein filed a written statement of defence together with a counter claim alleging that the respondent had illegally obtained a freehold certificate of title over a preexisting leasehold title (see paragraph 3 of the affidavit in support).

The evidence of the respondent on court record is to the effect;

- 1. That the applicant herein raised a defence in HCCS 111 of 2022 that the respondent had sued a wrong party and had no locus(see paragraph 2 & 3 5 of the affidavit in reply). - 2. That the applicant contended in its counter claim in HCCS of 2022 that the respondent had trespassed on its land (see paragraph 4 of the affidavit in reply). - 3. That the applicant is totally abandoning its cause of cation and introducing

10 a new cause of cation of fraud and recovery of the land. (see paragraph 6 of the affidavit in support).

I have perused the applicants written statement of defence and counter claim in HCCS 111 of 2022 attached as annexture A to the affidavit in reply. I find that it is 15 stated in paragraph 4 of the of the written statement of defence that

*"The defendants shall contend that the plaintiff obtained the title of the suit land wrongfully and shall invite court to find that the registration of the same was a nullity"*

20 In the applicant's counter claim in HCCS 111 of 2022, it is stated in paragraph 1 (v) that *"the plaintiff wrongly applied for consent to acquire the suit land in 2016, yet the defendant already had a lease hold interest in the land".(emphasis mine)*

I have also perused the applicants proposed amended written statement of 25 defence and counter claim in HCCS 111 of 2022 attached as annexture A to the affidavit in reply, and I find that it is stated in paragraph 4 of the proposed written statement of defence that the applicant states in paragraph 6 (a) that it is stated that

*"On 20th November 1963 the government of Uganda through the Uganda* 30 *Land Commission executed a lease agreement with the Kingdom of Ankole to acquire 12,183 acres of land comprised in LRV 743 Folio 21 land at Kanyoza in Kiruhura district for 99 years."*

In paragraph 3 of the proposed counter claim, the applicant herein avers that their claim against the counter defendants is for recovery of the suit land, trespass on land and a declaration that the counter defendant illegally procured its registration as proprietor of the suit land. Then goes ahead to itemise 5 particulars of illegalities in paragraph 5 stating them to include surveying off a portion of land with out the knowledge of the Uganda Land Commission and obtaining a freehold title over **a lease hold title held by the Government of Uganda through the Uganda Land Commission.**

- 10 Lastly, I also perused the certificate of title attached as annexture B to the affidavit in support and I find that it is land comprised in LRV 743 Folio 21 registered in the names of Uganda Land Commission. I note that in the pleadings in HCCS 111 of 2022 the applicants claimed to have leased hold interest in the land, which in the proposed amendment pleadings they clarify that the leasehold 15 interest is owned by the Uganda Land Commission. I have confirmed from annexture B to the affidavit in support that the land comprised in LRV 743 Folio 21 is registered in the names of Uganda Land Commission as proprietor and not - 20 The suit and counter claim in HCCS 111 of 2022, mainly hinged on trespass, with each party claiming the other had trespassed. The Supreme Court defined trespass in the case of **Justine E. M. N Lutaaya vs STIRLING CIVIL ENGINEERING COMPANY LTD SCCA No. 11 of 2002,** holding that

the applicant.

*"Trespass to land occurs when a person makes an unauthorised entry* 25 *upon land, and thereby interferes, or portends to interfere, with another person's lawful possession of that land. Needless to say, the tort of trespass to land is committed, not against the land, but against the person who is in actual or constructive possession of the land. At common law, the cardinal rule is that only a person in possession of the land has capacity to sue in* 30 *trespass. Thus, the owner of an unencumbered land has such capacity to sue, but a landowner who grants a lease of his land, does not have the capacity to sue, because he parts with possession of the land. During the subsistence of the lease, it is the lessee in possession, who has the capacity to sue in respect of trespass to that land. An exception is that where the*

trespass results in damage to the reversionary interest, the landowner would have the capacity to sue in respect of that damage.

This means that both the applicant and respondent would under the pleadings as they now stand on court record have to prove trespass of the other following the $\mathsf{S}$ guidance of the supreme court holding in of JUSTINE E. M. N LUTAAYA VS STIRLING CIVIL ENGINEERING COMPANY LTD SCCA NO. 11 OF 2002.

In respect to the proposed amendments, I note that they mainly detail the ownership of the land by the Uganda Land Commission and seek cancelation of 10 the respondent's freehold title. Some of the details that have been listed in the proposed amendment such as ownership of the leasehold and how it relates to the applicant can be brought onto court record by way of witness statements under order 18 rule 5A of the Civil procedure Rules as amended.

I note that the applicant, a body corporate as stated in SECTION 13 OF THE ANIMAL BREEDING ACT, 2001 is not the proprietor of the lease hold title LRV 743 Folio 21, yet it claims in the proposed amendment that the respondent created a freehold title over the leasehold title. I also note that the proprietor of the leasehold land comprised in LRV 743 Folio 21 is Uganda Land Commission, yet it is not a party to the suit in HCCS 111 of 2022, and it is not even proposed as a party in the proposed amendment. These are fundamental contradictions, lead me to conclude that the application is not brought in good faith, and is not really meant to aid resolution, otherwise the proprietor of the leasehold would have been made a party or proposed as a party in the proposed amendment in the counter claim. I therefore based on the above to find that the application is Malafide.

In conclusion, I order that

- 1. The application is dismissed - 30

2. The applicant shall pay costs of this application to the respondent. we text

**NSHIMYE ALLAN PAUL M.** JUDGE 05-07-2024