Balaba and 6 Others v Mawejje ( as administrator of the late Sulaiman mawejje) and Another (H.C.Miscellaneous Application No. 7 of 2021) [2021] UGHCLD 113 (19 August 2021)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

# (LAND DIVISION)

# **MISCELLANEOUS APPLICATION NO.07 OF 2021**

# (ARISING OUT OF CIVIL SUIT NO.919 OF 2020)

- 1. BALABA EMMANUEL - 2. NALUKENGE MONICA - 3. KADDU AHMED KASSIM - 4. LUTAAYA MOSES - 10 5. LUBOGO LUCAS - 6. NSABAANYE EMMANUEL - 7. NAMUWONGE MARIAM::::::::::::::::::::::::::::::::::

#### **VERSUS**

- 1. MAWEJJE HANIFA - (Administrator of the Estate of the Late Sulaiman Mawejje) - HAJJI ASUMAN WANDERA::::::::::::::::::::::::::::::::::::

# Before: Lady Justice Alexandra Nkonge Rugadya.

#### 20

$\mathsf{S}$

#### **RULING:**

This application is brought under section 98 Civil Procedure Act, Cap. 71, Order 1 rules 10 (2) & 13 and Order 52 r.1 Civil Procedure Rules of the Civil Procedure Rules S. I 71- $1.$ for orders that:-

- 1. The applicants be added as a defendant in Civil Suit No.919 of 2020. - 2. Costs of this application be provided for.

## Grounds of the Application:.

applicant wherein he states inter alia that the applicants are in possession as the owners of a substantial portion of the suit land which is the subject of *Civil Suit No. 919 of 2020* and that they came to know about the said suit when the 1st respondent with the help of police came with an interim order dated 28th November 2020 issued in *Miscellaneous Application* No.919 of 2020 and stopped the applicants from carrying out developments on the suit land and further threatened to evict them from the suit land.

The grounds of the application are contained in the affidavit of Mr. Balaba Emmanuel, the 1st

That the applicants purchased their respective *bibanja* interests from the 2nd respondent who had before the said purchase assured them that he is the owner of the suit land which he purchased from the 1st respondent and that he had all the rights to deal with it as the 1st respondent's claim was only limited to the balance of the purchase price and not the land.

- Further, that the 1st respondent seeks a declaration that he is the owner of the suit land in $\overline{5}$ total disregard of the applicant's beneficial interest in the suit land; and that he does not recognize the applicants' ownership of the suit land since he attempted to evict them using an interim order. They claim at the orders sought in the head suit would directly and legally affect the said interest of the applicants. - It was further deponed that the applicants' presence as parties in the head suit is necessary 10 for the determination of the real questions in contention and will enable court to completely and effectively adjudicate all questions involved in the head suit; and that joining the applicants as parties would be desirable to avoid multiplicity of suits. - The 1st respondent opposed the application through her affidavit in reply wherein she admitted having sold the suit land to the 2nd respondent who allegedly breached the sale 15 agreement. She denied ever having had any contractual relationship with the applicants or r consent to the purported sale of the suit property by the $2nd$ respondent to the applicants. The $2^{nd}$ respondent was served but did not file any response to this application.

In rejoinder, the 1st applicant pointed out that the affidavit in reply does not address the gist of the application before court and that all the issues raised therein are matters to be considered in the main suit after the applicants are made parties to the suit.

# Representation.

The applicants are represented by $M/s$ Malik Advocates while the 1st respondent was represented by *M/s Kajeke Maguru* & co. *Advocates*.

Both counsel filed written submissions the details of which are on court record, and which I 25 have taken into consideration in the resolution of the issues herein.

# Consideration of the application:

The issue for determination is whether the applicants can be added as defendants in **High** Court Civil Suit No.919 of 2020 in the circumstances of this case.

The joinder of parties to pleadings is governed under Order 1 rule 10 (2) of the Civil 30 **Procedure Rules S. I 71-1** which provides that;

> "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

anten

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."

The procedure for bringing such an application is provided for under *Order 1 rule 13 Civil* Procedure Rules (supra) that;

# "Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by mention or summons or at the trial of the suit in summary manner."

It is noteworthy that adding or striking off a party to pleadings, whether on application of the parties or on court's own motion, lies within the discretion of court. It however, must be exercised judiciously based on sound principles. (See: Yahaya Kariisa v. Attorney General& A'nor, S. C. C. A. No.7 of 1994 [1997] HCB 29.

The main purpose of joining parties is to enable the court to deal with matter brought before 15 it and to avoid multiplicity of pleadings.

It is a fundamental consideration that before a person can be joined as party, it must be established that the party has high interest in the case. In addition, it must be clearly demonstrated that the orders sought in the main suit would directly legally affect the party

seeking to be added. 20

$\overline{5}$

These considerations have been amplified by the Supreme Court of Uganda in the case of the Departed Asians Property Custodian Board v. Jaffer Brothers Ltd [1999] I. E. A 55, that for a party to be joined on ground that his presence is necessary for the effective and complete settlement of all questions involved in the suit, it is necessary to show either that the orders sought would legally affect the interest of that person and that it is desirable to have that person joined to avoid multiplicity of suit, or that the defendant could not effectually set up a desired defence unless that person was joined or an order made that would bind that other person. See also: Gokaldas Laximidas Tanna v. Store Rose Muyinza, H. C. C. S No. 7076 of 1987 [1990 - 1991] KALR 21.

In the instant application, the $1^{st}$ applicant deponed in his affidavit that the applicants have 30 interest as the lawful owner of a large portion of the suit land comprised in **Kyadondo Block** 273 Plot 5218 land at Gangu Wakiso through purchase from Hajji Musa Wandera, the 2nd respondent, who is the 1st defendant in the main suit.

The 1st respondent in the main suit seeks for among others, an order of vacant possession, a declaration that the purported sale of the suit land to the defendants therein is null and void 35 as well as a permanent injunction against the defendants.

![](_page_2_Picture_10.jpeg)

Any of the above orders affecting the 1st respondent with regard to the suit land would directly affect the applicants' interest in the same land. This makes a more compelling case for the applicants to be joined as parties, to enable court effectually and completely determine all the matters in controversy.

5 I could not agree more therefore with counsel for the applicants' position that the arguments raised in this application delve more into the merits of the suit than the prayers sought in this application.

Suffice to state that where the prayers sought in the head suit are likely to affect the applicants' claim of equitable interest in the suit land, court would be inclined allow a joinder of the parties likely to be affected by its decision.

The issue as to whether or not the transaction between the applicant and $2nd$ respondent was valid; or whether or not the applicants were on the suit land as trespassers were all matters to be tried and determined by this court.

It must be emphasized that, among others, the purpose of joinder of parties is to avoid 15 multiplicity of suits. It is a mandate of this court under section 33 of the Judicature Act (Cap.13) that as far as possible all matters in controversy between the parties should be completely and finally determined and all multiplicities of legal proceedings concerning any of the matters be avoided.

In that regard, it would be appropriate and in the interest of justice that all matters touching and concerning the subject matter of the suit in the instant case be determined finally and 20 completely to avoid litigating over the same matters again; which justifies the decision to join the applicants as parties to the suit.

This court is acutely aware of the principle of dominus litis, and that a plaintiff can sue whomever he or she thinks will obtain relief from; and that a plaintiff cannot be forced to sue somebody whom he or she has not chosen to sue. See; Maj. Roland Kakooza Mutale v. AG. (supra); Gakou & Brothers Ltd Enterprises Ltd v. SGS Uganda Ltd. (supra); IGG v. Blessed Construction Ltd & Another H. C. M. A. No. 04631of 2005.

In the instant application, however, the adding of the applicants as defendants by order of court exercising its discretion within the provisions of the law, would not amount to "forcing" the respondent/plaintiff to sue someone she does not have a claim against, or suing "a wrong party". Order 1 r 10 (2) (supra) clearly stipulates that, "the name of any person who ought to have been joined, whether as plaintiff or defendant', may be added in appropriate cases.

Suing only the 2nd respondent from whom the applicants claim to have bought, but who no longer has any vested interest in the suit land, and omitting to sue the applicants who claim to have bought from him and to be in possession, would not enable this court to effectually and completely adjudicate upon and settle all questions involved in the suit. If anything, it

would only serve to proliferate multiplicity of proceedings; which this court is enjoined by law to curtail.

I therefore find this a proper case in which the applicants should be added as defendants. For the reasons above, this application is hereby granted.

Costs in the cause.

$\mathsf{S}$

Alexandra Nkonge Rugadya 10 Judge.

19/08/2021.

Delivered by email 19/8/2021. Autour. 19/8/2021.