Abdu Nassar v Yesero Mugenyi and Another (Miscellaneous Application 1403 of 2022) [2022] UGHCLD 262 (23 November 2022)

### THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) **MISCELLEANOUS APPLICATION NO. 1403 OF 2022** (ARISING FROM C. S NO 87 OF 2005) **..................................... ABDU NASSAR::::::::::::::::**

#### **VERSUS**

# YESERO MUGENYI AND ANOTHER::::::::::::::::::::RESPONDENTS **BEFORE: HON. MR JUSTICE TADEO ASIIMWE.**

### **RULING**

The Applicant brought this application by way of Chamber Summons under Section 98 of the CPA and Order 6 Rules 19 & 31 of the Civil Procedure Rules (CPR) Seeking orders that:

- The applicants be granted leave to further amend his plaint to add 1. 4 defendants to the suit and include other relevant facts that have come to the knowledge of the applicant after filing of the suit. - In alternative strike out paragraphs 26, 27, 28, and 30 from the 1<sup>st</sup> $2.$ defendant's witness statement which raises new allegations.

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The costs of this application be provided for. $3.$

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The application is supported by an affidavit sworn by Abdu Nasser' the Applicant. The grounds of the application are there in set in the affidavits and the chamber summons, but briefly that:

- l. That the l't defendant raises new allegations in his witness statement which were not originally encompassed in his amendedwrittenstatementofdefenceandalludestoknewparties that are necessary parties for effectual and complete dispasal of the suit. - 2. That the plaintiff/applicant has now discovered nerv evidence relatingtotheallegedcases,andthatitisnecessarytoamendthe plaintandadducetheevidencetoprovethefraudulentmannerin which the suit property was disposed of' - 3. That the intended 2nd,3'd,4th and 5th defendants participated or were privy to the fraudulent dealings in the suit property and that they ought to be joined as defendants to this suit for a complete and eft'ectual disposal of the issues in this matter' - 4. That is equitable that the orders sought be granted'

#### Representation.

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At the hearing, the Applicants were represented by counsel Peter Mukidi walubiri & Ita Kasaija while the Respondents were represented Ms

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kiboneka and co Advocates' Both counsel were directed to file written submissions which theY did'

#### Issues.

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- l. Whether the Applicant has shown grounds to be granted leave to amend its Plant in the main suit' - 2. Whether the stated paragraphs in the I't defendant's witness statement can be struck out'

#### Resolution.

In his written submissions, counsel for the applicant argued that the 1't respondentfiledandservedasupplementaryaffidavitaftertheapplicant had filled his affidavit in rejoinder and submissions in the suit' That the supplementary affidavit introduces new evidence to which the applicant a cannot respond to at this stage' That the supplementary affidavit was filed andservedoutsidethetimelinessetbythishonorablecourtandthatthe said affidavit was inegularly filed without leave of court and therefore should be struck out'

He further submitted that this application was brought in time and that the applicant has a cause ofaction against the intended defendants since they played a role in the sale of the suit. That the issue whether or not there actions were fraudulent or not is an issue to be determined,bY,this court

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after the parties have led evidence that therefore the intended parties are necessary parties for proper disposalofthe case'

On the other hand, the respondents submitted that this application should failfbrreasonsthatitcontainsmaterialfalsehoods,lacksmeritandan abuseofcourtprocessandtimebarredbyreasonofwhichcourtoughtto dismissitwithcosts. Theapplicantsareseekinganordertofurtheramend otheplainttoaddpartiesforthesecondtime. Thattheiralternativeprayer tostrikeoutSomeparagraphsintheplaintraisesnewallegationsthatare afundamentaldeparturefromtheirpleadings. Furtherthattheapplicant and his witnesses have already testified and given all their evidence in the main suit and the applicant's case is accordingly closed. That on this basis, the court should deal with the issue of time limitation than allow an amendment intended to delay court process'

# a The law.

Order 6 Rule l9 of the CPR empowers the Court to grant leave to a party to amend their pleadings at any stage of the proceedings. It provides as follows:

.. 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

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Theprinciplesthathavebeenrecognizedbythecourtsasgoverningthe exerciseofdiscretiontoallowordisallowamendmentofpleadingshave beensummarizedinanumberofdecidedcasestoincludethefollowing:

a'Amendmentsareallowedbythecourtssothattherealquestionin O controversy between the parties is determined and justice is administered without undue regard to technicalities'

b. Anamendmentshouldnotworkaninjusticetotheotherside. An injury that can be compensated by an award of damages is not treated as an injustice.

c. MultiplicityofproceedingsshouldbeavoidedasfaraSpossibleand all amendments which avoid such multiplicity should be allowed'

O d. An application that is made malafide should not be granted'

e. No amendments should be allowed where it is expressly or impliedly Prohibited bY anY law.

g. Thecourtshallnotexerciseitsdiscretiontoallowanamendment which has the effect of substituting one distinctive cause of action for another.

See: Gaso Transport services (Bus) Ltd vs obene (1990-1994) EA 88; Mulowooza & Brothers Ltd vs Shah & co. Ltd, sccA No. 26 of 2010;

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## and Nicholas Serunkuma Ssewagudde & 2 Others vs Namasole Namusoke Namatovu Veronica HCMA No. 1307 of 2016.

Counsel for the Applicant in his pleadings and submissions was alive to the above principles as set out and implored the Court to find that the Applicant has satisfied the grounds for grant of leave to amend applicant's pleadings.

I do not find any prejudice likely to be suffered by the Respordent if the Application is granted.

In the circumstances therefore, I am satisfied that this application has not been brought in bad faith and has no potential of working an injustice or prejudice against the Respondents since the hearing has not yet commenced. I am further satisfied that grant of the amendment will enable the court to fully and finally determine all the questions in controversy between the parties thereby avoiding a multiplicity of actions.

Accordingly, the Applicant has satisfied Court that he is entitled to be granted leave to amend its plaint in the main suit. The application has merit and the same is hereby allowed with orders that:

1. The Applicant is granted leave to further amend his plaint in Civil Suit No. 87 of 2005 to add 4 defendants.

2. The Applicant shall file the amended plaint and serve the respondents in accordance with the law.

3. 1rt defendant,s witness statement remains as is to be dealt with at trial'

4. The main case is opened for purposes of effecting the amendment'

5. The costs of this application shall abide the outcome of the main suit'

It is so I I <sup>f</sup>. Ju lltI}.. L, -- I TADEO ASI WE

JUDGE

2311112022.

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