Bethel Lunize Kigongo v Ssemwanga Joseph and Others (Misc. Application No. 1013 of 2024) [2025] UGCommC 198 (30 June 2025)

## 5 THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (COMMERCIAL DIVISION) MISC. APPLICATION NO.1013 OF 2024 (ARISING FROM CIVIL SUIT NO. 049 OF 2020)

## BETHEL LUNIZE KIGONGO…………………APPLICANT/PLAINTIFF

#### VERSUS

#### 1. SSEMWANGA JOSEPH……….. RESPONDENTS/DEFENDANTS

- 2. MBABALI LAMECA - 15 3. THE NON-PERFORMING ASSETS RECOVERY TRUST

### BEFORE: HON. LADY JUSTICE SUSAN ODONGO

### 20 RULING

This Application is brought by way of chamber summons under O.6 rules 3, 19 and 31 of the Civil procedure Rules and Sections 98 of the Civil Procedure Act seeking the following orders;

- a) Leave be granted to the plaintiff to amend the plaint in Civil Suit No. 25 49 of 2020 and file the same in court. - b) Service of this application and ultimately the summons and amended plaint (if leave is granted to file it), unto the Respondents be effected by substituted service by advertising either in the Daily monitor or new vision newspapers.


5 c) Costs of the application be provided for.

# SUPPORTING AFFIDAVIT

The application is substantiated by a supporting affidavit sworn by the Applicant, Mr. Bethel Lunize Kigongo, on the 28th day of May 2024, delineating 10 the factual basis underpinning the application.

In his Affidavit in Support, the Applicant/Plaintiff avers that the main suit (No. 49 of 2020) was instituted against the Respondents through his former legal representatives, M/S Byamugisha, Lubega & Co. Advocates. Upon engaging new counsel, M/S Buwule & Mayiga Advocates, critical deficiencies in the 15 original plaint were identified including inadequate particularization of

allegations of fraud and illegalities pertaining to the subject land comprised in Busiro block 383 plot 414 at Kitende.

The Applicant contends that the former advocates' failure to properly plead essential particulars of fraud and illegality constituted a miscarriage of justice.

20 Consequently, the retention of new counsel necessitates a substantive amendment to the plaint to cure these material defects.

# REPRESENTATION AND HEARING

On the dates (13 th and 22 nd May 2025) when the main suit was called on for 25 hearing, neither the defendants nor their counsels appeared. The Plaintiff was represented by Counsel Steven Paul Mutegaya and the plaintiff personally appeared. The plaintiff's counsel informed court about this application to which


5 this court directed that the plaintiff file submissions. The court has considered the submissions filed by the plaintiff.

## APPLICANT'S SUBMISSION

Counsel for the Applicant cited the Supreme Court Case of *Gaso Transport*

- 10 *Services (Bus) Ltd V Martin Adala Obene, Supreme Court Civil Appeal No.4 of 1994*, where Tsekeko JSC held inter-alia, that; Under *Order 6 rule 19* of the Civil Procedure Rules, the High Court has wide discretionary powers to permit the Amendment of Pleadings to be made at any stage of the proceedings and in appropriate cases, amendment to pleadings may be permitted as late as during - 15 an appeal by an appellate court.

The Applicant's counsel stated that in paragraphs 2, 3, and 4 of the supporting affidavit, the Applicant/Plaintiff averred that he initially filed the main suit No. 49 of 2020 against the Respondents through the law firm M/S Byamugisha, Lubega & Co Advocates. However, after engaging new legal representatives,

20 M/S Buwule & Mayiga Advocates, they discovered that the original plaint contained several errors. Specifically, important technical legal details, such as the particulars of fraud and other illegal actions related to the disputed land, were not adequately addressed in the initial plaint.

There is no affidavit in reply from the respondents on the court record.

# ISSUES FOR DETERMINATION

- 1. Whether the applicant can be granted leave to amend the plaint? - 2. Whether the amended plaint can be served by way of substituted service?


### DETERMINATION OF COURT

#### *Issue 1: Whether the applicant can be granted leave to amend the plaint?*

The law on amendment of pleadings is governed by *Order 6 Rule 19* of the Civil Procedure Rules which states that;

10 *"The court may at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such a 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 Supreme Court in *Gaso Transport Services (Bus) Ltd V Martin Adala Obene* 15 *Supreme Court Civil Appeal No.4 of 1994*, Tsekeko JSC laid down the following principles which govern the exercise of discretion in allowing amendments:

- *i) The amendment should not work injustice to the other side. An injury that can be compensated for by way of costs is not treated as an injustice.* - *ii) Multiplicity of proceedings should be avoided as far as possible and all* 20 *amendments, which avoid such multiplicity should be allowed.* - *iii) An application which is made malafide should not be granted.* - *iv) No amendment should be allowed where it is expressly or impliedly prohibited by any law.*

Amendments to pleadings may be permitted either prior to or during the trial, 25 provided that such amendments do not prejudice the opposing party or occasion any injustice, and so long as any prejudice can be adequately compensated by an award of costs.


- 5 Counsel for the Applicant relied on *Order 6 Rule 19 of the Civil Procedure Rules,* which empowers the Court to allow either party to alter or amend their pleadings. I concur with the submissions made on behalf of the Applicant that amendments to pleadings may be allowed at any stage, as long as the overriding objective is to resolve the real issues in controversy between the parties - 10 In the matter before this court, the Applicant seeks to amend the plaint in *Civil Suit No. 49 of 2020* on the basis that the Applicant's former legal representatives, at the time of filing the plaint, failed to include material particulars of fraud and unlawful transfer of land, which omissions require rectification to enable the suit to proceed to a just and logical determination. It is contended that allegations of 15 fraud and other illegality, which are central to the subject matter of the suit, were not adequately pleaded in the original plaint and therefore ought to be

incorporated through the proposed amendment.

Counsel for the Applicant further submitted that the Applicant deposed in *paragraphs 2, 3, and 4 of the supporting affidavit* that the main suit *No. 49 of 2020* 20 was instituted against the Respondents through M/S Byamugisha, Lubega & Co. Advocates. Upon engaging new counsel, M/S Buwule & Mayiga Advocates, it was discovered that the initial plaint contained several deficiencies, particularly in relation to technical legal particulars such as the specifics of fraud and illegality affecting the subject land, which were not 25 sufficiently captured.

The Applicant, in the affidavit, averred that having retained the services of M/S Buwule & Mayiga Advocates, the aforementioned counsel identified significant technical omissions in the original plaint, including crucial particulars of fraud and illegality. These omissions, attributable to the negligence of the former legal 5 representatives, occasioned an injustice to the Applicant, thereby necessitating the amendment of the plaint to properly reflect the true nature of the claims.

*Section100 of the Civil Procedure Act Cap 282* states that amendments are allowed to enable determination of real issues between the parties. To ensure that there's no multiplicity of proceedings and a multiplicity of suits regarding the same 10 estate, it is only prudent that this amendment is granted by court.

The Respondents have failed to demonstrate to this Honourable Court that they would suffer any prejudice or injustice should this Application be granted, particularly in the absence of any affidavit in reply filed in the court record.

The proposed amendment is intended to explicitly specify the particulars of the 15 alleged fraud and unlawful transfer concerning the land situated in Busiro Block 383 Plot 414 at Kitende, thereby enabling this Honourable Court to definitively adjudicate the contentious issues between the parties.

This issue is answered in the affirmative.

# 20 2. *Whether the amended plaint can be served by way of substituted service?*

The law on substituted service under *Order 5 Rule 18* of the Civil Procedure Rules provides that;

*"Where the court is satisfied that for any reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy* 25 *of it on some conspicuous place in the court house, and also upon some conspicuous part of the house, if any, in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the*



5 *court thinks fit. Substituted service under an order of court shall be as effectual as if it had been made on the defendant personally."*

The purpose of service of summons is to notify the defendant of the existence of a pending legal action against them. Substituted service, on the other hand, is employed to effect such notice when personal service on the defendant proves

10 impracticable.

In the present matter, the Applicant avers in *Paragraph 9 of the Affidavit in support* that efforts to serve the Respondents personally have consistently been met with difficulties due to their apparent unavailability and inaccessibility. Consequently, the Applicant seeks an order permitting substituted service.

15 Given that the right to a fair hearing enshrined under *Article 28 of the Constitution of the Republic of Uganda* mandates that both parties be afforded an opportunity to be heard, and considering that both Counsel for the Applicant and the Applicant have demonstrated that the Respondents cannot be served by ordinary means or located, I find it justifiable to grant the application. 20 Accordingly, the Applicant is hereby authorized to serve the amended plaint on the Respondents by substituted service.

In the circumstances the instant Application succeeds and I hereby order that;

- i) The Applicant is hereby granted leave to amend his Plaint in HCCS No.49 of 2020. - 25 ii) The applicant should file and serve the amended plaint within 15 days on all defendants in Civil Suit No.49 of 2020 from date of receipt of this ruling.


- 5 iii) The Applicant be permitted to serve the amended plaint to the Respondents/Defendants by way of substituted service. - iv) The Defendants should file their amended written statements of defence within 21 days from the date they are served with the amended plaint. - v) No orders at costs. - 10 Dated, signed and delivered electronically this 30th day of June, 2025.

.............................................

Susan Odongo JUDGE