Besigye v Karungi & 4 Others (Miscellaneous Application 31 of 2023) [2024] UGHC 838 (18 April 2024)

#### 5 **THE REPUBLIC OF UGANDA**

#### **IN THE HIGH COURT OF UGANDA AT KABALE**

#### **MISCELLENEOUS APPLICATION NO. 0031 OF 2023**

#### **(Arising out of Civil Suit No. 0113 of 2018)**

**EVA BESIGYE**::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::**APPLICANT** <sup>10</sup>

#### **VERSUS**

- **1. KARUNGI JACKLINE** - 15 **2. IVAN ASIIMWE** - **3. MARTIN BYABASHEIJA** - **4. CAROLINE NAMARA** - **5. JIMMY BESIGYE**:::::::::::::::::::::::::::::::::::::::::::::::::::::::**RESPONDENTS**

#### 20 **BEFORE: HON. JUSTICE SAMUEL EMOKOR**

#### **RULING**

The Applicant brings the instant application by chamber summons under **Section 98** of the **Civil procedure Act, Order 1 Rule 10 (2) Order 6 Rule 19** and **31** of the **Civil Procedure Rules** seeking orders that the Applicant be granted leave to amend the Plaint to include the 5th 25 Respondent as a Defendant in the main suit and costs of the application abide the main suit.

The grounds upon which the instant application is premised is that there is a pending suit filed against the 1st – 4 th Respondents vide Civil Suit No. 0113 of 2018 in which the Applicant sued the 1st Respondent for depositing building materials

on the suit land. That the 1st 30 Respondent stated that she had bought the suit land together with her siblings from the Applicant's husband (5th Respondent) who had fraudulently sold the suit land without the Applicant's consent and at her detriment. That the suit land is family land from which they derive livelihood and

- thus the 5th 5 Respondent did not have the authority to sell it because both the Applicant and 5th Respondent were given custody of the Suitland by Besigye Byarugaba Denis Jimmy to use it for their livelihood without authority to sell it and it is prudent that the 5th Respondent be added to the suit for proper determination and completion of the head suit. - 10 The Application is supported by the affidavit of the Applicant who expounds on the above grounds.

The 4th Respondent deponed an affidavit in reply to the application and this also on behalf of the 1st, 2nd and 3rd Respondents. The 4th Respondent in brief avers that they bought the suit property from the 5th Respondent at a sum of UgX 15 50,000,000/= in seven different instalments from 2017 to 2018 and that the

Applicant had full knowledge of the transaction and on some occasions were hosted by the Applicant at their home during the transaction.

That the Applicants' intended amendment of the Plaint to include the 5th Respondent is aimed at introducing a new cause of action of fraud that has no

- basis at all and will substantially change the character of the suit. The 4th 20 Respondent further avers that this application has been brought in bad faith since the Applicant's lawyer already represents the 5th Respondent and the Applicant in the counterclaim instituted by the Respondents. The 4th Respondent therefore prays that the instant application is denied. - The 5th 25 Respondent in his affidavit in reply to the application avers that the Applicant is his wife and that he was approached by 1st – 4 th Respondents in 2017 with an intention to sell the suit land and that they paid some money for the same

5 leaving a balance but that he later informed them of his intention to withdraw from selling the suit land because his wife and the family of Bagashasha were not in agreement with him but that the Respondents proceeded to deposit the remaining balance in his bank account. That the 5th Respondent is at the centre of the whole problem and it cannot be resolved unless he is involved.

#### 10 **Representation.**

The Applicant is presented by Messrs Bikangiso & Co. Advocates while the Respondents (1st – 4 th) were represented by Messrs JByamukama & Co. Advocates. The 5th Respondent was self-represented.

The parties in this matter proceeded by way of written submissions.

15 I do not find it necessary to reproduce verbatim the submissions of Counsel since the same is a part of the record. It should suffice to note that I have studied every detail of the same.

#### **Submissions of Counsel.**

It is the submission of the Applicant's Counsel that **Order 6 Rule 19** of the **Civil**

20 **Procedure Rules** enjoins this Court to allow either party at any stage of the proceedings to make an amendment of their pleadings.

On the Principles governing amendments Counsel relied on the decision in **Gas Transport Services (Bas) Ltd** versus **Martin Ndala Obene SCCA No. 0041 of 1994** in which the Court spelt out the same as being;

- 5 *a) The amendment should not work injustice to the other side. Any injury which can be compensated by the award of costs is not treated as an injustice.* - *b) Multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed,* - 10 *c) An application which is made malafide should not be granted.* - d) *No amendment should be allowed where it is expressly or impliedly prohibited*.

It is the submission of Counsel that the Applicant and the 5th Respondent are husband and wife and the 5th Respondent being the person who sold the suit land 15 to the Respondents (No. 1 – 4) which is under challenge there is no way that the

Court can fully and properly determine the issue between the parties without

making the 5th Respondent a party to the same.

Counsel further contends that the 5th Respondent is already a counter Defendant brought on board by the Respondents when they filed their Written Statement of

20 Defence and thus it is important that he is made party to the suit.

Counsel further contends that the Applicant's cause of action is premised on trespass to land from the 5th Respondent and that the whole suit therefore hinges on the 5th Respondent.

Counsel also argues that the main suit has not taken off and the amendment of 25 the Plaint shall not be prejudicial to the respondents and prays that the same is allowed.

Counsel for the 1st – 4 th 5 Respondents in his Written Submissions opposes the instant application on the premise that it is brought in bad faith and is an abuse of Court process since the Applicant seeks to introduce a new cause of action in fraud as opposed to trespass that was pleaded in the Plaint in HCCS No. 0036 of 2018, Counsel further points out that the Applicant's lawyers are the same lawyers who represent the 5th 10 Respondent and the Applicant in the counterclaim instituted against them by the 1st – 4 th Respondents and that it is therefore shocking and surprising that the same lawyers are seeking leave to amend the Plaint to sue their own client.

Counsel for the 1st – 4 th Respondents contends that the intended amendment has 15 the potential of changing the cause of action into one of a substantially different character and introduces fraud as a new cause of action that is different from the initial cause of action of trespass. Counsel therefore prays that the instant application is dismissed with costs.

The 5th Respondent in his Written Submissions contends that there was no 20 fraudulent act done on his part as alleged by the Applicant but that the suit land was given to him by his son Besigye Byarugaba Denis Jimmy to use as family land and he sold it to the 1st – 4 th Respondents because he thought he had authority to sell and he thought he did not need the Applicant's consent and that adding him as a defendant in the main suit will be of great importance to answer the issues 25 in controversy so that justice is served.

#### **Determination.**

**Order 6 Rule 19** of the **Civil Procedure Rules** provides:

5 *"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 the purpose of determining the real questions in controversy between the parties"*

It therefore follows that amendments under the above provision is at the 10 discretion of the Court before which the same is sought.

The Principles guiding the Court has been well laid out by the Applicant's Counsel in **Gas Transport Services (Bus) Ltd** versus **Martin Adala Obene (Supra)** and I need not outline the same here.

The submission of Counsel for the 1st – 4 th Respondents that the lawyers used by 15 the Applicant to file the instant application seeking to bring an action against the 5 th Respondent are the same lawyers who filed the Written Statement of defence in the reply to the counterclaim that was brought against the Applicant and her husband the 5th Respondent is not contested.

This scenario is an absurdity. It goes against the rules of civil engagement. 20 Counsel cannot on one hand seek to defend a party and on the other seek to bring an action against the same party in the same head suit.

This kind of conduct casts the legal profession in poor light. In fact the 5th Respondent's affidavit in reply and the submissions thought not indicated as drawn by any legal body bear a striking similarity in font and style with that filed

by the Applicant's lawyers. It is therefore not surprising that the 5th 25 Respondent in his averments is eager to bolster the Applicant's claim after all she is his wife.

5 There is a conflict of interest in these pleadings as they stand on the part of Counsel representing the 1st counter Defendant and then seeking to sue him in the head suit.

The above scenario in my view is not cured by the belated attempt by the 5th Respondent to give instructions to Messrs Onyango & Co. Advocates to take over 10 his instructions going forward as per the "Notice of Instructions" [As opposed to Notice of change of Instructions] filed on the 20/03/2024. This notification comes 9 months late and it can only paper over the cracks of this application.

I would only on this issue of conflict of interest dismiss the instant application.

I have perused the plaint of the Applicant that is the subject of the intended amendment and I would agree with the 1st – 4 th 15 Respondents' Counsel that the same does introduce a new and distinct cause of action of fraud that was not pleaded in the Applicant's plaint. The Applicant's cause of action was indeed one premised on trespass, while it is trite law that the Courts will not reject an amendment ostensibly because it introduces a new cause of action the same will 20 be rejected if it is one that would change the character of the suit.

# **(See Master Managers & Traders Ltd and Another versus Madatally Allibhai Po Pat HCMA No. 0580 of 2021).**

It is my considered opinion that the facts of this case when taken into consideration would substantially change in character if this amendment was to 25 be allowed.

In the result the instant application is hereby dismissed with costs to the 1st – 4 th Respondents.

## ……………………………………..…. **SAMUEL EMOKOR JUDGE** 10 **18/04/2024**

### **18/04/2024**

Mr. Byamukama Jude for 1st – 4 th Respondents.

Ms. Asiimwe Sarah for 5th Respondent

15 Mr. Bikangiso Rogers for Applicant

**Court**: Ruling delivered in open Court.

Before me

………………………………………… 20 **SAMUEL EMOKOR JUDGE 18/04/2024**