[2023] UGHCLD 99

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) **MISCELLANEOUS APPLICATION NO. 50 OF 2023** (ARISING FROM CIVIL SUIT NO. 1094 OF 2021)

# NATIONAL HOUSING AND CONSTRUCTION CO. LTD :::::APPLICANT

## **VERSUS**

## 1. UGANDA INSITUTION OF PROFESSIONAL **ENGINEERS LIMITED** 2. KAMPALA CAPITAL CITY AUTHORITY ::::::::::::::::::::::::::::::::::::

## **BEFORE: HON. JUSTICE BERNARD NAMANYA**

## **RULING**

### **Introduction:**

This Ruling is in respect of an application brought under Article 28 of the $1.$ Constitution of Uganda 1995, Section 33 of the Judicature Act (Cap 13), Section 98 of the Civil Procedure Act (Cap 7)1, and Order 1 rules 3, 5 and 13, Order 52 rules 1-3 of the Civil Procedure Rules (SI 71-1) seeking for orders that: i) the 2^nd respondent be joined as a defendant in High Court Civil Suit No. 1094 of 2021 (Land Division); and ii) costs of this application be in the cause.

#### **Applicants' evidence:**

The application is supported by an affidavit sworn by *Mr. Emma Wangota*, the $2.$ Acting Secretary of the applicant which sets out the grounds of the application, including the following:

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Semilarmy

- $i$ ). That the applicant filed HCCS No. 1094 of 2021 against the 1^st respondent for among others, for recovery of land known and described as FRV 354 Folio 23, Plot 2 Gloucester Avenue, Kyambogo, Kampala ("suit property") and in respect of which the applicant is the registered proprietor; - At the centre of the dispute is the contest of the legality of approved $ii$ ). developments/building plans and a purported building permit issued by the $2^{nd}$ respondent to the 1^st respondent; - iii). The 2^nd respondent is the only statutory body in whom the power to approve building plans and issue building permits in vested, and is a necessary party for the complete and effectual determination of the dispute in *HCCS No. 1094 of 2021* and to avoid multiplicity of suits; - iv). The $2^{nd}$ respondent has constitutional and natural justice rights to be heard before court makes any decisions touching the contested approved building plans and or building permit; and - In its ruling of 23^rd May 2022 in *Misc. Appeal No.22/2022*, this court $v$ ). guided that the presence of the $2^nd$ respondent is necessary to determine the legality of the approved building plans and the building permit issue.

## **Respondents' evidence:**

- The application is opposed by the respondents through an affidavit in reply sworn $3.$ by *Engineer Andrew Muhwezi*, the President of the 1^st respondent in which he stated the following among others: - That the 1^st respondent is a lawful lessee on the suit land such it $i)$ . lawfully applied and obtained a building permit from the 2^nd respondent;

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Relay

- That following negotiations between the 1^st respondent and the Ministry $ii$ ). of Works, Housing and Communications, during and before 1997, the suit land was offered to the 1^st respondent by Government for purposes of constructing a Technology House; - iii). That by a letter dated 8^th November 1998, the applicant offered and the 1^st respondent accepted a lease of the suit land for a period of 99 years at a premium of UGX 20 million and ground rent of UGX 1,601,000 to which the 1^st respondent paid the applicant and by a letter dated 17^th November 1999 he acknowledged receipt of the same: - iv). That it is the undisputed evidence of existence of a lease relationship of 99 years between the applicant and the 1^st respondent which was presented to the $2^{nd}$ respondent in pursuance of a building permit for the suit land which was granted; and - That the 1^st respondent has applied to court for orders of specific $v$ ). performance to formalise the same lease relationship. - In response to the motion, an affidavit in reply was also sworn by Kwikiriza $4.$ **Benson**, the Supervisor, Litigation of the 2^nd respondent, wherein he stated among others: - That the suit is for recovery of land comprised in FRV 354 Folio 23 Plot $i)$ . 2, Gloucester Avenue Kyambogo and breach of tenancy agreement and the $2^nd$ respondent does not have any proprietary interest in the suit land nor is it a party to the tenancy agreement, and as such, their addition as party to the suit cannot help in answering and disposing off the issues; - ii). That the $2^{nd}$ respondent does not have knowledge of the proprietary interests in the suit land save for that information that is disclosed in the pleadings;

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Bernardon

- iii). That Civil Suit No. 1094 of 2021 does not disclose a cause of action as against the $2^{nd}$ respondent and thus this application does not meet the requirements necessary for the $2^nd$ respondent to be added as a party to the main suit: and - iv). That if there is a need to authenticate any documents issued by the $2^{nd}$ respondent, the parties could simply apply to the $2^{nd}$ respondent upon payment of requisite fees.

## **Representation:**

At the hearing held on the 14^th February 2023, the applicant was represented by $5.$ Mr. Agaba Kenneth holding brief for Mr. John Musiime of M/s Kyagaba & *Otatiina Advocates (Dentons)* while the $1^{st}$ respondent and the $2^{nd}$ respondent were represented by Mr. Kyeyune John Paul of M/s Nangwala, Rezida & Co. Advocates and Ms. Dorothy Namutebi of the Directorate of Legal Affairs, Kampala Capital City Authority respectively. The parties filed written submissions which I have considered in the determination of this application.

## **Preliminary point of law:**

- It was argued for the 1^st respondent that the applicant never filed a rejoinder to 6. the 1^st respondent's affidavit in reply and that as such, all the facts in the 1^st respondent's affidavit in reply are deemed to have been accepted by the applicant. - I do not agree with counsel for the 1^st respondent. There is no legal requirement 7. to file an affidavit in rejoinder to an affidavit in reply. Where an affidavit in rejoinder is not filed, all material statements of fact in the affidavit in reply are

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Demalaray

deemed to have been denied by the applicant and put in issue. This statement of the law is supported by *Order 8 Rule 18(5)* of the *Civil Procedure Rules* which provides that:

"Where a pleading subsequent to reply has not been ordered [...] the pleadings shall be deemed to be closed, and all material statements of fact in the pleading last filed shall be deemed to have been denied and put in issue $[...]$ "

- 8. In the case of Mubende Town Council v. Norah Mbabazi, Civil Appeal No. 017 of 2016 (Arising from Civil Suit No. 87 of 2013) where it was argued that the plaintiff's failure to file a reply to the defence amounted to admission of the defendant's pleadings, Justice Dr. Joseph Murangira, citing the provisions of Order 8 Rule 18(5) of the Civil Procedure Rules held that it is not mandatory to file a reply to the defence. - $9.$ In the case of *Homeart (U) Limited v. Modino Furniture Company Limited, High* Court Misc. Application No. 1212 of 2021, Justice Susan Abinyo held that: "[...] an affidavit in rejoinder is not a reply, and is optional where a party only seeks to clarify on what has been rebutted in reply $[...]$ " - The point of law raised by counsel for the 1^st respondent on the applicant's failure $10.$ to file an affidavit in rejoinder is therefore overruled.

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Berondom

### **Issue to be determined by the court:**

The main issue for determination is whether or not Kampala Capital City 11. Authority should be added as a defendant in High Court Civil Suit No. 1094 of 2021.

## Resolution of the issue:

12. Order 1 rule 10 $(2)$ of the *Civil Procedure Rules* provides that:

> $(2)$ 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 the court effectually and *completely to adjudicate upon and settle all questions involved in the suit, be added.*" (underlining is mine for emphasis)

#### $13.$ According to *Mulla, The Code of Civil Procedure, 18^th Edition, B. M Prasad Lexis Nexis (at page 1469):*

"The condition precedent is that the court must be satisfied that the presence of the party to be added would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as partydefendant is not a substantive right but one of procedure and the *court has discretion in its proper exercise.*"

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Gernalamaps

In the case of Departed Asians Property Custodian Board v. Jaffer Brothers Ltd $14.$ (Supreme Court Civil Appeal No. 9 of 1998) [1999] UGSC 2, the Supreme Court of Uganda considered the meaning of Order 1 rule 10(2) of the Civil Procedure Rules (per G. W. Kanyeihamba, J. S. C) and held that a party may be joined to a suit:

> "[...] because that party's presence is necessary in order to enable $\mathbb{Z}$ the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter."

Paragraphs 5 and 6 of the affidavit in support of the motion provide that: $15.$

> "(5) That I know the 1st respondent in its defence to the suit contends that, the aforementioned building plans and permits were issued to it and/or approved by the 2nd respondent who is the only statutory body in whom the power to approve both the building plans and permits [is vested]:

> (6) That I know that the 2nd respondent has $[a]$ Constitutional and *Natural Justice rights to be heard before court makes any decisions touching the contested purportedly approved building plans and (or) building permit.*"

Paragraphs 7, 8, 9, 10 and 11 of the affidavit in rejoinder by the applicant provide 16. that:

> "(7) $[...]$ the 2nd respondent is faulted for having breached its statutory duty when it issued illegal building plans and permits to the 1st respondent to undertake developments on the applicant's land *without the applicant's consent/authorization:*

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(8) $[...]$ the applicant contests the legality of the purported approved building plans and permits allegedly issued by the 2nd respondent in *the main suit;*

(9) [...] several protest letters to the 2nd respondent have either been *deliberately, or negligently ignored.*"

(10) [...] the 2nd respondent is the only statutory body in whom power to approve both the building plans and permits is vested. Additionally, that the 2nd respondent has the right, under both the constitution, and natural justice to be heard before court makes any decisions touching the contested purportedly approved building plans and permits:

(11) $[...]$ the addition of the 2nd respondent is necessary for the proper determination of the questions of legality of the purportedly approved building plans and permits."

- Having regard to the law and evidence before, I am satisfied that the addition of 17. the 2^nd respondent (Kampala Capital City Authority) as a defendant in *HCCS No*. 1094 of 2021 is necessary to enable the court to effectually and completely adjudicate upon and settle all the questions involved in the matter. - Accordingly, it is my finding that this application has merit and it is allowed with 18. the following orders: - 1) The 2^nd respondent (Kampala Capital City Authority) shall be joined as a defendant in High Court Civil Suit No. 1094 of 2021. - 2) The applicant (National Housing and Construction Company Ltd) shall file an amended plaint within 15 days from the date of this Ruling.

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Berandson

- 3) The rest of the parties to the suit shall observe the timelines for filing their respective pleadings as required by the Civil Procedure Rules. - 4) The costs of this application shall abide the outcome of the main suit.

I SO ORDER.

$r$ n **BERNARD NAMANYA JUDGE** 6^th April 2023

| $6$ ^th April 2023 at 9:32am. | | |-----------------------------------------|-------------------------------------| | Mr. Agaba Kenneth Mugira | Counsel for the applicant | | Mr. Kyeyune John Paul | Counsel for the $1^{st}$ respondent | | Dorothy Namutebi | Counsel for the $2^{nd}$ respondent | | Cheptoek Liz | Court Clerk |

Mr. Agaba Kenneth Mugira:

We are ready to receive the Ruling.

Court:

Ruling delivered in open chambers.

BERNARD NAMANYA<br>JUDGE 6^th April 2023

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