[2022] UGHCCD 204

## THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT MUBENDE

## **MISCELLANEOUS APPLICATION NO. 169 OF 2022**

## ARISING OUT OF HIGH COURT CIVIL SUIT NO. 48 OF 2020

- 1. WINDRIVER LOGISTICS LIMITED - 2. PENNINAH BUSINGYE KABINGANI :::::::::::::::::::::::::::::::::::: **APPLICANTS**

#### **VERSUS**

- 1. MITYANA FARM GROUP ENTERPRISES LTD - 2. COMMISSIONER LAND REGISTRATION - : RESPONDENTS 3. THE ATTORNEY GENERAL ::::::::::::::::::::::

## BEFORE: HON JUSTICE DR. FLAVIAN ZEIJA

#### **RULING**

This is a ruling in respect of an application for leave to be granted to the Applicants to further amend their Plaint in HCCS No. 48 of 2020 and costs to be in the cause.

In support of the application, the Mr. Eria Mubiru, the lawful attorney and the Chief Operations Officer of the 1st Applicant swore an affidavit on behalf of both the $1^{st}$ and $2^{nd}$ Applicants.

The gist of all the grounds in support of the application is that when court granted leave to all parties to amend their pleadings prior to the


commencement of the triol in HCCS No. 48 of 2020, the Appliconts mode on inodvertent typogrophicol error in the l,t omended ploint. The soid error is under reliefs c), d), e), f) ond i) of the lslomended ploint where the suit lond wqs erroneously described os "Busiro Block" insteod of "singo Block". The soid lstqmended ploint in which the inodvertent error is to be found is morked D2 onnexed to the offidovit in support of the opplicotion'

The grounds in opposition to this opplicotion ore contoined in the offidovit deponed by Ali Alom, o director in the 1't Respondent Compony, soid to be well conversont with oll foctuol motters pertoining to the suit. He bosicolly stotes thot on 2l'i April 2022' the Applicont served on the lsi Respondent on omended ploint without seeking for leove ond the soid omended ploint sought to cure motters thot hod been roised by the Respondent by woy of o preliminory objeclion in oddition to oltering ond /or chonging the couse of oction. Thot submissions were mode on the soid preliminory objection ond served on the Applicont but there wos no response. To dote, the ruling on the preliminory objection hos never been delivered. As such, the originol ploint connot be omended before court deti'uers its ruling on the preliminory objection. Further, thot the 'l 't omendment without leove wos dishonestly done ond qimed o1 oltering ond /or chonging the couse of oction originolly pleoded.

Bingi Soroh olso deponed on offidovit on beholf of the 3'd Respondent opposing the opplicotion ond contending thot the o;nendment sought for by the Appliconls substontiolly chonges the couse of oclion.

in rejoinder, it wos deponed for the Appliconts thot the soid submissions on preliminory points of low hqve never been served on KBW Advocotes os the Appliconts' leod counsel ond they ore therefore unknown io the Applicont's Advocotes. Further, thot the offidovit in reply is incurobly defective for being supported by un connmissioned ottochments controry to the mondotory provisions of the Commissioner for Ooths (Advocotes) Act Cop 5.

# Represenlolion

The Appliconts were jointly represented by KBW Advocotes, Kotende Sserunjogi & Co. Advocotes & Legol Consultonts ond Konduho & Co. Advocotes & Commissioner for Ooths.

The Isl Respondent wos represented by Betundo Yusuf of PloI 97, Bukoto Street Upper-Kololo, Kompolo who chose not to file written submissions in totol disregord to court's directives to hove them filed by 5tn October 2022.

The 2nd Respondent wos unrepresented while the 3'd Respondent wos represented by the Attorney Generol's Chombers.

## Delerminotion

The lqw on omendr:-rent of pleodings is well settled. Amendments to pleodings ore governed by Order 6 Rule l9 of the Civil Procedure Rules which provides os follows;

# 19. Amendmenf of pleodrngs.

"The courl moy, of ony stoge of the proceedings, ollow either party b qlter or amend his or her pteodings in such monner qnd on such ferms


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 test for allowing or disallowing amendments of pleadings has always been whether the intended amendment would be prejudicial to the other party's case. However, a great string of authorities postulate that even where there is a likely prejudice, an amendment will often be favored over the prejudice as long as the prejudice can sufficiently be compensated for in terms of costs. It therefore goes without saying that the burden heavily lies on the party opposing the amendment to demonstrate to court's satisfaction that the amendment will occasion such an injustice that it cannot be sufficiently compensated for by costs or that the amendment seeks to prejudice the rights of the opposite party which rights are existing as at the date of the proposed amendment e.g. by depriving him of the defense of limitation. See; Mohan Musisi Kiwanuka vs. Asha Chand SCCA No. 14 of 2002 and Eastern Bakery v. Castellino, C. A. C. A. No. 30/1958[1958] **E. A 461** both cited with approval by the Supreme Court in **Mulowooza &** Brothers Ltd vs. N Shah & Co. Ltd Civil Appeal No. 26 of 2010.

Courts of law have often liberally allowed amendments to pleadings to ensure a conclusive determination of all questions in controversy between the parties and to guard against the possibility of unnecessary multiplicities of suits. When parties seek court's intervention, their expectation is a proper adjudication of all their questions in accordance with the law and doing otherwise would be an indictment on the administration of justice.

The question for determination in this ruling therefore is whether the Applicants' 1st and further amendment introduces an entirely new cause of action with the effect of defeating the 1^st Respondent's defense so as to

occosion on injuslice which connot be sufficiently compensoted by costs. ^Iwill oddress this issue loter in the ruling.

Firstly, however, os to whether the offidovit in reply is incurobly defective for being supported by un commissioned ottochments, rule 8 of the First Schedule to Commissioner for Ooths (Advocotes) Act Cop 53 Lows of Ugondo provides os follows:

All exhibifs to ofiidovits sholl be securely seoled lo the offidovits under fhe seol of the commissioner ond sholl be morked with seriol lelters of idenlificotion.

- While opplying the obove rule in the cose of Uoondo Coro. Creomories Ltd - & Another Vs Reomolon Ltd. Civil Applicolion No. 44 of 1998 (unreporled) Engwou JA held os follows;

"ln my view, whether or nol lhose onnextures hove been securely seoled with the seol of fhe odvocole who commissioned fhe qffidovits thereof, does nof offend Rule I becouse lhey were nof exhibifs produced ond exhibiled to o Court during o triql or heoring in proof of facts. ln ony cose, the onnextures tn fhe presenf cose were nof tn dr'spufe. Even if fhose onnexlures were detoched. the offidovits thereof would sfl'll be competent to suooort fhe Nofice of Motion. Rule 8. thouqh mondatory, is procedurol ond does nof qo to the roof os fo compefence of qffidovits. ln the premises, subslonfive jusfice should be odministered withoul undue regord fo fechnicolifies".


ln light of the foregoing outhority, the Applicont's overment thot the offidovit in reply is incurobly defective for being supported by un commissioned ottochments collopses. I hove looked of the offidovit in reply itself ond I om sotisfied thot it wos competenlly commissioned by ^o Commissioner for Ooths.

# New Couse of Aclion

It wos deponed for the 1't ond 3'.r Respondents thot the lsl ond further qmendment to the ploint seek to introduce o new couse of oction. whereos the lst Respondent did not lobor to indicote to court whot new couse of oction is being introduced by the omendments, counsel for the 3d Respondent submitted thot in porogroph l5 ond l6 of the further omended ploint, the Appliconts seek to foult the Ugondo police for connivonce ond tresposs on grounds thot the police coused the holting of oll the octivities of the Plointiffs on the suit lond while qt the some time ollowing the lstDefendont to cross the bufferzone ond plough ond plont sugor cone. Further, thot in porogroph 22 of the intended omendments. the subject motter is re-described meoning thot the ploint initiolly filed is for q different piece of lond which is non-existent'

^Ihove hod opportunity to look ot the originol ploint in civil Suit No. 48 of ²⁰²⁰ottoched os onnexture'Dl'to the offidovit in support of the opplicotion. The subject motter of the suit wos lond comprised in FRV HQI ¹³⁰FoLlOTSinqo Mubende Bloc k 308 Plot I43 lond ot Lwomosqn qo-Bukompe meosurinq oporoximotelv'l .078.?670 hectcres o nd Block 308 Plol 142 meosurino opproximolelv 628 ocres

.-\

ln porogroph 6 of the lstomendment ottoched os "D2" to the offidovit in support of the opplicotion, the suit lo nd is described os FRV HQT 'l 30 Folio ⁷ Sinqo Block 308 Plot 143 lond ol Lwomosonqo Bukompe meosunnq ooproxlmolelv 1.079 hectores ond Sinqo Block 308 Plot 142 meosurinq ooproximotel 628 ocres. This description is consistent with thot in the originol ploint which lends credence to the overment by the Appliconts thqt the mis-description in the lstomended ploint under reliefs c), d), e), f) ond i) wos on inodvertenl error. The error wos only in misdesribing 'Singo Block' os 'Busiro Block' olthough oll the other poriiculors of the suit lond remoined intoct.

As to whether the omendment introduces o new couse of oction, Counsel for the 3'd Respondents submitted thqt porogrophs 15 qnd 16 of the omended ploint introduces o new couse of qction of connivonce ond tresposs by the Ugondo Police. I hove however mqde findings in previous opplicotions touching the sqme subject motter thot it wos necessory for the Ugondo Police to creote o buffer zone on the suit lond for purposes of mointoining peoce ond security. Porticulorly in Miscelloneous Applicotion No. 30 of 2022 orising from MA No. 7l of 2021 orising from CS No. 22 of 2021 , this court directed the Ugondo Police to mointoin the existing buffer zone seporoting the vorying porties until the mqin suit is disposed of. For this reoson, therefore, I do not expect thqt o new couse of ociion should orise ogoinst the Ugondo Police for hoving estoblished the soid buffer zone ond for mointoining it. The 3'd Respondents feqrs ore therefore misploced. In ony cose, the focts introduced by the Applicont will hqve to be supporied by evidence ond strictly proved by the Applicont. Once the focts ore

odmissible ond moteriol to the cqse, the reol issue is wheJher they ore true or folse. This issue connot be determined in ony other wqy other lhon through evidence odduced of the triol. ln such circumstonces, o porty would therefore be ollowed to introduce such focts ond then be put to strict proof of the sold focts.

It is olso o point of coniention in this opplicotion os to whether the lst omendment of the ploint wos effected without leove of court ond therefore foiol. Under o.6 r.20 0f civil Procedure Rules, the Plointiff moy without leove of Court omend his or her ploint once of ony time within twenty-one doys from the dote of issue of summons to the Defendqnt, or where o written stotement of defence is filed, then within fourteen doys from the filing of the Written Stotement of Defence. This is however not o motter where the soid rule strictly opplies. When tl're porties oppeored before me on 29th October 2021 I ollowed them to moke omendments to their pleodings but Counsel Yusuf Betundo roised on objection to the effect thot he hod o preliminory objection which moy be overtoken if the omendment is ollowed becouse the obiection goes to the very existence of the suit. court then ollowed the qmendment qnd directed counsel Yusuf Betundo for the lst Respondent to put his objections in writing with the view thot the qmendments would be vocoted if court found meril in the preliminory objections. The soid preliminory obiections were then filed in this court on llth November 2021. There is however no offidovit of service on record to show thot opposite counsel wos served with these preliminory objections. Nonetheless, I hove opplied my mind to these preliminory points of low ond come to the conclusion thot they ore without merit. The soid ,poinis of low' ore in foct points of foct which sholl be determined in ihe nce. moin sult by woy of

Consequently, I find that no prejudice will be suffered by the Respondents if the Applicants further amend their plaint by correcting the typographical error as pleaded.

This application is therefore allowed. Costs shall be in the cause.

I so order.

$18$ day of October 202² Dated at Kampala this ..........

AAA

Flavian Zeija (PhD)

PRINCIPAL JUDGE