[2024] UGHC 405

**THE REPUBLIC OF UGANDA**

**IN THE HIGH COURT OF UGANDA AT FORT PORTAL**

**CIVIL MISC. APPLICATION NO. 012 OF 2024**

**(ARISING FROM CIVIL SUIT NO. 0046 of 2023)**

**UGANDA NATIONAL ROADS AUTHORITY :::::::::::::::::: APPLICANT**

**VERSUS**

1. **KATWESIGYE WYCLIFF** 2. **ATTORNEY GENERAL :::::::::::::::::::::::::::::::::: RESPONDENTS**

**BEFORE: HON. JUSTICE VINCENT WAGONA**

**RULING**

**Introduction:**

This ruling seeks to determine a motion by the applicant brought under Order 6 rule 19 and 31 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act for orders that:

1. ***Leave be granted to the applicant to amend the Written Statement of defense.*** 2. ***That costs of taking out the application be granted.***

The application is supported by the affidavit of Lydia Katami the Litigation Manager of the applicant who deposed as follows:

1. That the Respondents filed Civil Suit No. 46 of 2023 against the applicant seeking a number of reliefs. That the applicant filed a written statement of defense on 29th August 2023 based on the information available to her at that moment. 2. That subsequently, the applicant made inquiries from stakeholders and has since established material facts regarding the Respondent’s claim and which are material to applicant’s defense. 3. That the facts relate to acquisition and ownership of land known as ***“M. O. W Road Camp”*** comprised in FRV 229, Folio 23 measuring 6.2 acres at Mile 31 along Fort Portal – Kampala Road and encroachment thereon by several people including the 1st Respondent. 4. That it is prudent to amend the written statement of defense and plead new facts which are relevant for determination of the suit before court. That it is fair, just and equitable that the orders sought are granted.

**Representation and Hearing:**

The applicant was represented by their Directorate of Legal Services and filed written submissions to that effect. The application was served upon the Respondents. Mr. Ocol Ambrose for the 2nd Respondent who indicated that they did not intend to oppose the application and the same was not opposed by the 1st Respondent.

**Consideration of the application:**

Order 6 Rule 19 of the Civil Procedure Rules states that:

***A 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.***

The above order was considered by the supreme court in ***Muwolooza & Brothers v N. Shah & Co. Ltd (Civil Appeal No. 26 Of 2010)) [2011] UGSC 11 (14 November 2011***), where court adopted the dictum in **Eastern Bakery V Castelino [1958] EA 462 (CAU) at 462,** where Sir Kenneth O'Connor stated:

***“Amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other side and ... there is no injustice if the other side can be compensated by costs ... the court willnot refuse to allow an amendment simply because it introduces a new case .... but there is no power to enable one distinct cause of action to be substituted for another ... the court will refuse leave to amend where the amendment would change the action into one of a substantially different character... or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment e.g. by depriving him of a defence of limitation.”***

Court went on to note that amendments are allowed by courts so that the real question in controversy between the parties is determined and justice is administered without undue regard to technicalities in accordance with Article 126(2) (e) of the Constitution. Therefore, if a plaintiff applies for leave to amend his pleadings, courts should in the interest of promoting justice, freely allow him to do so unless this would cause an injustice to the opposite party which cannot be compensated for by an award of costs, or unless the amendment would introduce a distinct cause of action in place of the original cause. (See: ***Muwolooza& Brothers v N. Shah & Co. Ltd (Civil Appeal No. 26 of 2010)) [2011] UGSC 11 (14 November 2011***).

I have examined the motion, the supporting affidavit and the annexures attached to the affidavit. What is apparent there from is that the applicant wishes to plead facts that seeks to challenge the title acquired by the plaintiff within an existing title in the names of Ministry of Works and Transport. The applicant contends that the land that the plaintiff claims falls within the titled land comprised in FRV 229, Folio 23currently registered in the names of Ministry of Works and Transport as “M. O. W ROAD, MILE 31 Fort Portal to Kampala Road” which they inherited from Ministry of Works and Transport. That the plaintiff encroached upon the same and illegally created a title over the same. The applicant attached a copy of the said title as annexure A to the application. That these facts were discovered later after a defense had been filed and it is fair and just to grant the amendment so that the said facts are pleaded.

I find the facts pleaded by the applicant as having been omitted pertinent in court’s investigation of the claim by the plaintiffs/1st Respondent. The applicant contends that the title in the custody of the 1st Respondent was illegally created in an existing title in the names of Ministry of Works. These facts if pleaded will help court to effectually dispose of the claim by the plaintiff and the defense presented by the 1st defendant. I see no prejudice or injustice to be be suffered by the plaintiff / 1st Respondent if this application is granted. I therefore allow this application with the following orders:

1. ***Leave is granted to the applicant/2nd defendant to amend their written statement of defense to plead additional facts and particulars.*** 2. ***The amended written statement of defense shall be filed within 10 days from the date of delivery of this ruling and served upon the plaintiff.*** 3. ***The plaintiff shall file a reply to the written statement of defense if any within 5 days after service.*** 4. ***The costs of this application shall abide the outcome of Civil Suit No. 046 of 2023.***

I so order.


Vincent Wagona

**High Court Judge**

**Fort-portal**

**DATE: 31/05/2024**