[2024] UGCommC 185

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO. 952 OF 2023 (ARISING FROM CIVIL SUIT NO.52 OF 2023)

$\mathsf{S}$

# 1. JOHN F. SSENGOOBA

- 2. SANDRO SSENTAMU - 3. BENJAMIN WAKKANYULE - 4. KIWANUKA JEREMIAH

#### 5. SEKANDI CHRISTIAN 15

- 6. NABBANJA KAREN - **.....................................** 7. NANFUKA KEISHA

(The last 3 being minors suing through **NALUGO HAJARA**

and **PETER MUNYIRA** as next friends)

$20$

#### **VERSUS**

- 1. STANBIC BANK (U) LTD - 2. NANCY RWABULINDOLE alias NANCY TWASHABA - 3. ALEX MATAMA - 4. MUGABI JULIUS $25$ - 5. SIMON WAVAMUNNO - 6. STUART KAMYA - 7. COMMISSIONER LAND REGISTRATION - **8. FRANCIS MUGENYI \*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\***

### BEFORE: HON. LADY JUSTICE PATIENCE T. E. RUBAGUMYA

phine

#### **RULING**

$\mathbf{1}$

## 5 Introduction

The application was brought by way of Chamber Summons under **Section 98 of the Civil Procedure Act, Cap. 71, Order 1 rules 3 and 10 (2)** and **Order 6 rules 19 and 31 of the Civil Procedure Rules SI 71-1** seeking orders that:

- 10 1. The Applicants be allowed to amend their plaint and add parties. - 2. Costs of the application be provided for.

Background

The background of this application is contained in the affidavit in support 15 and the supplementary affidavit in support of the application deponed by the 1st Applicant, and is summarised below:

- 1. That the 1st Applicant swears on his behalf and on behalf of the other Applicants as authorised under **annexures "A", "B" and "C".** - 20 2. That the suit was filed seven (7) years ago meaning that some of the information available now was not available then, especially regarding the fraudulent conduct of the 2nd Respondent which has an impact on the whole case as well as the other Respondents. - 25 3. That the Applicants wish to give further particulars of fraud, add parties and annexures. - 4. That the parties sought to be added are Armstrong Ltd, the Bailiff firm and its Directors namely; Anthony Mupere and Felix Tusiime 30 reason being that they kickstarted the entire process and that the 4th Respondent, who first bought the property is their junior officer.

- 5 5. That the Applicants also wish to add the current registered owner of the suit land, Jack Nsubuga who bought the property despite knowing that the property had issues and was aware of the interest of the Applicants in the same. - 10 6. That in addition, the Applicants wish to add annexures of the water and electricity bills to prove the Applicants' occupation of the property at the time when the 1st Respondent granted a mortgage to the 3rd Respondent. - 15 7. That the amendment is also to portray the fraudulent character of the 2nd Respondent through Court cases, which information was not available to the 1st Applicant at the time of filing the suit. - 8. That the amendment is also meant to show the increase in the value 20 of the suit property with the coming into place of the Entebbe Express Highway, Kiruddu Hospital and the tarmacking of the Lukuli-Munyonyo road. - 9. That the Applicants also wish to add prayers in their amended plaint 25 which are; mesne profits and compensatory/aggravated damages. - 10. That it is necessary to add the proposed parties so that the Court investigates and finally resolves the issues between the parties to avoid multiplicity of proceedings. - 30 Representation

The 1st Applicant Learned Counsel John F. Ssengooba represented himself and the other Applicants as authorised under **annexures "A"**, **"B"** and **"C"**.

The Respondents did not file their affidavits in reply.

- 5 When this matter came up for hearing on 19th April, 2024, the Respondents were not in Court nor were they represented. The 1st Applicant prayed that the parties file their submissions. The Court accordingly gave schedules for filing the written submissions. - The 1st Applicant was further directed to formally write to Counsel for the 10 Respondents and communicate the timelines given by this Court for filing submissions; which he complied with as evidenced by the letter dated 23rd April, 2024. However, the Respondents neither filed their affidavits in reply nor their written submissions.

In the case of *Serefaco Consultants Ltd Vs Euro Consult BV and*

15 *Another C. A. C. A No. 16 of 2007,* it was held that it is now settled law that if the Applicant supports his application by affidavit or other evidence and the Respondent does not reply by affidavit or otherwise, and the supporting evidence is credible in itself, the facts stand as unchallenged.

This position of the law has been re-echoed in High Court decisions such

20 as the case of *William Akankwasa Vs Registrar of Titles HCMA No. 33 of 2008* wherein it was held that facts as adduced in the affidavit evidence of the Applicant that are neither denied nor rebutted are presumed to be admitted.

In the premises, since the Respondents did not file their affidavits in reply, 25 I infer that they admitted the facts in the affidavit in support along with the supplementary affidavit in support of the application hence, the application stands unopposed.

However, as provided under **Section 101 of the Evidence Act, Cap. 6**, in civil matters, whoever desires any Court to give judgment as to any legal 30 right or liability dependent on the existence of facts which he or she asserts

5 must prove that those facts exist. (See: **Sections 102,103** and **104 of the Evidence Act).** Given the nature of this application, this Court shall proceed to resolve the application on its merits.

#### Issues for Determination

In accordance with **Order 15 rule 5 (1) of the Civil Procedure Rules** and 10 the case of *Oriental Insurance Brokers Ltd Vs Transocean (U) Limited SCCA No.55 of 1995***,** this Court has rephrased the issues to read as follows:

- 1. Whether the Applicants should be granted leave to amend their plaint in Civil Suit No. 52 of 2023? - 15 - 2. What remedies are available to the parties?

Issue No.1: Whether the Applicants should be granted leave to amend their plaint in Civil Suit No. 52 of 2023?

#### Applicants' submissions

20 Referring to **Order 6 rule 19 of the Civil Procedure Rules**, which provides that the Court may, at any stage of the proceedings, allow either party to amend its pleadings and all such amendment shall be made as may be necessary for determining the real questions in controversy between the parties and **Order 1 rule 10 (2) of the Civil Procedure Rules** which 25 provides that the Court may at any stage in the proceedings order that a party be joined as a Defendant or Plaintiff to enable the Court effectively and completely adjudicate upon and settle all questions involved in the suit, the 1st Applicant submitted that the Applicants wish to amend the plaint to add more particulars of fraud, annexures, facts to show an 30 increase in the value of the suit land as well as seek more prayers.

- 5 The 1st Applicant further submitted that the Applicants wish to add the current registered owner of the suit land Jack Nsubuga who, despite being aware of the issues on the suit land and the Applicants' interest therein, created an interest in the same. That the Applicants also wish to add the auctioneer firm, Armstrong Ltd and its Directors Anthony Mupere and - 10 Felix Tusiime because they visited the suit land and knew that the Applicants were in occupation. Furthermore, the Applicants wish to annex water and electricity bills to prove that they were in occupation at the time the 1st Respondent granted the mortgage to the 3rd Respondent as well as annexures procured from the fraudulent suit in Makindye vide Civil Suit - 15 No. 102 of 2014 between the 4th Respondent and the 5th Respondent and three (3) Court cases where the 2nd Respondent has been held to have defrauded people of their land.

The 1st Applicant further submitted that the principles that govern the amendment of pleadings were laid down in the case of *Gaso Transport*

- 20 *Services (Bus) Ltd Vs Martin Adala Obene SCCA No. 4 of 1994* which were cited in the case of *Lea Associates Ltd Vs Bunga Hill House Ltd HCCS No. 348 of 2008* to include that: - i. The amendment should not work as an injustice on the other side. - 25 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 malafide should not be granted. - 30 iv. No amendment should be allowed where it is expressly or impliedly prohibited by any law.

The 1st Applicant relied on the case of *Eastern Bakery Vs Castellino [1958]1 E. A 461* wherein it was held that amendments to pleadings

- 5 sought before the hearing should be freely allowed if they can be made without causing an injustice to the other side. To this, the 1st Applicant submitted that this case has not yet started and thus the amendments should be granted. In conclusion, the 1st Applicant submitted that if the proposed amendment is allowed, it will allow the real questions in - 10 controversy to be determined.

# Analysis and Determination

# **Order 6 rule 19 of the Civil Procedure Rules** stipulates 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* 15 *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."*

The above provision explicitly vests this Court with discretionary power to allow amendment of pleadings at any stage of the proceedings to determine 20 the real issues in controversy between the parties.

To guide in the exercise of the above discretion, it was held in the case of *Eastern Bakery Vs Casetelino (supra)* that the powers of amendment should not be used to substitute one cause of action for another or change an action into another of a substantially different character. That subject 25 to this, the fact that an amendment may introduce a new cause of action is not a ground for refusing it.

The principles that govern the amendment of pleadings were laid out in the case of *Gaso Transport Services (Bus) Ltd Vs Martin Adala Obene (Supra)* as rightly quoted by the Applicants and stated hereinabove. - 5 In the instant matter, the Applicants instituted **Civil Suit No.473 of 2016** in the Land Division which was transferred to this Division and recorded as **Civil Suit No.52 of 2023**. The suit sought among others a declaration that all actions of the Defendants concerning the suit property comprised in Kyadondo Block 255, Plot 255 land at Munyonyo, were fraudulent, - 10 illegal and actionable and were part of a grand conspiracy to defraud the Plaintiffs.

The suit was based on allegations that, by a Memorandum of Understanding dated 24th June, 2008, **annexure "D"** to the affidavit in support, the 1st Plaintiff temporarily surrendered his registered interest in

15 the suit land to the 2nd and 3rd Defendants, to enable the two Defendants process a loan from a financial institution which turned out to be the 1st Defendant. The title was to be returned after two years. A post-dated cheque of UGX 200,000,000/= was guaranteed against default.

In their plaint under paragraph 9, the Applicants pleaded fraud on the 20 respective Defendants and now wish to amend the plaint by adding more particulars of fraud, annexures of water and electricity bills to prove that they were in occupation of the suit land at the time of eviction and to show the current value of the suit land and seek more reliefs.

The particulars of fraud proposed to be added as portrayed under 25 paragraph 5 of the supplementary affidavit in support of the application are that; at the time of executing the Memorandum of Understanding in issue, the 2nd Respondent had an unpaid loan with the 1st Respondent and recovery measures were in progress. In evidence, the Applicants attached **annexures "D"** and **"E"**; that is the notification from the auctioneers dated 30 3rd September, 2012 and a newspaper advert in respect of the said property.

- 5 That the 1st Applicant's land title was obtained by the 2nd Respondent to cover up her indebtedness to the 1st Respondent and that the recovery of both properties was carried out simultaneously and by the same auctioneers, although it is the property of the 1st Applicant that was sold in suspicious circumstances. Further that the 7th Respondent gives - 10 contradictory information regarding the 2nd Respondent's property comprised in Kyadondo Block 244 Plot 2526 (LRV 2332 Folio 8) with the intent to cover up fraud.

Lastly that the 2nd Respondent has used different sets of names with a view of hiding her identity which is also reflected in a land title marked as

15 **annexure "F"** to the supplementary affidavit. That the 2nd Respondent also changed the registration of her property with a view of defeating her creditors including the Applicants. Owing to the above particulars of fraud, under paragraph 6 of the supplementary affidavit in support, the Applicants also seek to add reliefs of mesne profits and 20 compensatory/aggravated damages.

I am mindful that this matter was filed in 2016 about 8 years back which would raise questions of dilatory conduct in bringing this application. However, **Order 6 rule 19 of the Civil Procedure Rules** does not specify the time limit within which to file amendments. This was also upheld by

- 25 **Hon. Lady Justice Jeanne Rwakakooko** in the case of *Sarah Nyakato Vs Lin Jeng Liang aka Lin Jeff and 5 Others Misc. Application No.316 of 2022*. (See also the case of *Johnson Akol Omunyokol Vs The Attorney General of the Republic of Uganda, Application No.3 of 2016 East African Court of Justice)*. - 30 As was held in the case of *Eastern Bakery Vs Castellino (supra),* amendments of pleadings sought before the hearing of the case should be

5 freely allowed provided, they do not occasion an injustice to the other party.

Since the Respondents did not oppose the application, I do not find the amendments to occasion any injustice to them. I have also perused the proposed amended plaint marked as **annexure "G"** to the supplementary

10 affidavit in support, and the proposed amendments are not prohibited by any law nor are they malafide. Further, Civil Suit No. 52 of 2023 has just been scheduled for mention.

In the premises and in the interest of avoiding multiplicity of suits, the Applicants are hereby granted leave to amend their plaint by adding the 15 particulars of fraud, respective annexures and the reliefs sought.

The Applicants also seek to add four (4) Defendants that is; Armstrong Ltd, the Bailiff firm and its Directors Anthony Mupere and Felix Tusiime as well as the current registered owner of the suit land Jack Nsubuga.

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

20 *"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 a* 25 *Plaintiff or Defendant, whose presence before the Court may be necessary in order to enable the Court effectually and completely adjudicate upon and settle all questions involved in the suit, be added."*

Accordingly, the Court has discretionary powers to remove or add a party 30 to a suit either on its motion or on the application of either party. The same

- 5 has been stated in several decisions including *Kololo Curing Co. Ltd Vs West Mengo Co-op Union Ltd [1981] HCB 60.* However, such discretion is to be exercised judiciously and as shown in the case of *Yahaya Kariisa Vs Attorney General & Anor SCCA No.7 of 1994*, it is aimed at enabling the Court to deal with matters to their finality to curb the multiplicity of - 10 suits. In the case of *Departed Asians Property Custodian Board Vs Jaffer Brothers Ltd, SCCA No. 9 of 1998*, the Supreme Court considered **rule 10 (2) of Order 1 of the Civil Procedure Rules** and held that:

*"This rule is similar to the English R. S. C Order 16 r11, under which the case of Amon Vs Raphael Tuck & Sons Ltd (1956)1 All ER* 15 *considered and decided that a party may be joined in a suit, not because there is a cause of action against it, but because that party's presence is necessary in order to enable the Court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter."*

20 **Hon. Justice Mulenga, JSC (RIP)**, gave considerations for adding a party to a suit and stated that:

*"For a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit one of two things has to be shown. Either it has to* 25 *be shown that the orders, which the Plaintiff seeks in the suit would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit."*

In the instant case, the Applicants seek to add Jack Nsubuga, the current 30 registered owner of the suit land. He is alleged to have acquired the title in the suit land well aware of the conflicts on the suit land and the interest

5 of the Applicants therein. The Applicants also wish to add Armstrong Ltd and its Directors Anthony Mupere and Felix Tusiime on grounds that the 4th Respondent is a junior employee at Armstrong Ltd, a firm that acted on behalf of the 1st Respondent in visiting the suit land and auctioning the same. Further that the 4th Respondent being an employee of the 10 auctioneer, is not legally allowed to buy the auctioned property yet in the matter at hand, he did buy the suit land before it was transferred to the other purchasers.

Considering that the Applicants' suit is premised on allegations of fraud, for this Court to finally resolve all issues revolving around the sale 15 transactions of the suit property to the respective purchasers, it is necessary to add the relevant parties who participated in the said transactions in order to effectively adjudicate upon all the issues in the suit. As was held in the case of *Departed Asians Property Custodian Board Vs Jaffer Brothers Ltd (supra)* if it is shown that the orders sought 20 by the Plaintiff may legally affect the interests of the parties being sought to be added and that the adding of the parties would avoid multiplicity of suits, then the proposed parties should be added. The orders being sought in this suit shall certainly affect the interests of the current registered owner.

25 In the premises, in the interest of avoiding multiplicity of suits and effectually and completely adjudicating upon and settling all questions involved in **High Court Civil Suit No.52 0f 2023** and in accordance with **Section 33 of the Judicature Act, Cap. 13**, leave is hereby granted to the Applicants to add Jack Nsubuga, Armstrong Ltd, Anthony Mupere and

30 Felix Tusiime as Defendants in **High Court Civil Suit No. 52 of 2023**.

Therefore, issue No. 1 is resolved in the affirmative.

5 Issue No.2: What remedies are available to the parties?

Having resolved issue No. 1 in the affirmative, the following orders are issued by Court:

- 1. The Applicants are hereby granted leave to add Jack Nsubuga, Armstrong Ltd, Anthony Mupere and Felix Tusiime as the 9th, 10th 10 , 11th and 12th Defendants in **High Court Civil Suit No.52 of 2023**. - 2. The Applicants are hereby granted leave to amend their plaint by adding the particulars of fraud as sought together with the respective 15 annexures. - 3. The Applicants are hereby granted leave to amend their plaint by adding mesne profits and compensatory/aggravated damages among the prayers sought by the Plaintiffs. - 20 - 4. The Applicants shall file and serve the amended plaint to all the Defendants within seven (7) days from the date of this Ruling. - 5. The added four Defendants should file and serve their written 25 statements of defence within fifteen (15) days after receipt of the amended plaint and a rejoinder to be filed within seven (7) days after receipt of the written statements of defence. - 30 6. Costs of this application shall be in the cause.

I so order.

Dated, signed and delivered this **18th** day of **June, 2024**.

Patience T. E. Rubagumya

## **JUDGE**

18/06/2024

## 5 **Ruling read in Court**

18th June, 2024

9:35am

## **In Court**

Learned Counsel John F. Ssengooba, the 1st Applicant and Counsel for

10 the Applicants.

Counsel for the Respondents absent.

Respondents absent.

Ms. Mary Wokape, Court Clerk.

15 Dated at Kampala this **18th** day of **June, 2024**.

Patience T. E. Rubagumya **JUDGE** 18/06/2024

20