Busingye v Mafundo and Another (Miscellaneous Application 3872 of 2023) [2024] UGHCLD 252 (30 October 2024)

# THE REPUBLIC OF UGANDA IIN THE HIGHCOURT OF UGANDA AT KAMPALA **LAND DIVISION MISCELLANEOUS APPLICATION NO.3872 OF 2023** ARISING FROM CIVIL SUIT NO. 1014 OF 2022 EUNICE BUSINGYE:::::::::::::::::::::::::::::::::::: **VERSUS** EMMANUEL MAFUNDO::::::::::::::::::::::::::::::::::::

## **ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::** BEFORE HON. LADY JUSTICE ELIZABETH JANE ALIVIDZA 10 **RULING**

#### REPRESENTATION

The Applicant was represented by M./S Kasumba, Kugonza & Co. Advocates. The Respondents were unrepresented.

#### **INTRODUCTION** 15

The Applicant brought this Application under Section 98 of the civil Procedure Act, Section 33 of the Judicature Act, Order 1 rules 1 and 13, Order 6 Rules 19 and 31 of the Civil Procedure Rules seeking orders;

- 1. That this honourable Court be pleased to grant the Applicant/Plaintiff leave to add the $2^{nd}$ Respondent as a Defendant in civil suit No. 1014 of 2022. - 2. That this honourable Court be pleased to grant the Applicant leave to amend the Plaint in civil suit No. 1014 of 2022 to include the cause of action against the Respondent and also erase and add information/facts as may be necessary.

The grounds upon which this Application is premised are contained in thc Chamber Summons and Affidavit in Support deponed by the Applicant.

30 The Defendants did not file any Affidavits in reply despite being served with copics ol thc pleadings in May 2024.

### BACKGROUND

The Applicant/ Plaintiff's claim against the l"t Respondent/ Defcnc.l:rn t is for a declaration that he is trespassing on land compriscd in Kyadondo B1ock.245 Plot225 at Kabalagala, Makindye in Kampal:r l)istrict, an order for vacant possession, a permanent injunction, punitive and general damages plus costs of the suit' 35

The Appticant contt:nds that she is the owner and registered proprietor of land comprised in Kyadondo Block. 245 Plot 225 at Kabalagala, Makindyc in Kampala District. That after the purchase of the suit land, shc took immediate possession of her entire land and put a containcr rvith building materials therein without any interference. 40

That when the Country was put under lockdown due to Covid 19, the 1"t Respond<:rrt st:rrted trespassing thereon by stopping her from utilizing thc lar-rd on pretext that it was part of his. 45

That the 1"t Responrl<:nt being a top officer of Uganda police, he used that chancc to threaten and frighten away the Applicant's

workers from thc suit land and he deployed his agents (Local Defence Units-LDU's) on the same to guard the land at the detriment of the Applicant. 50

The l"t Respondcnt in a written statement of defence filed by the Attorney General's olficc contends that the Uganda police has been in exclusive, cor-rlinrrous uninterrupted possession of the suit property adverst: t o the interests of the Applicant and her predecessor for ovcr .10 years.

That the allegatir>ns complained of by the Applicant were carried out in 2O2O aft<:r tlrr: lockdown at the time the Defendant was stationed in Gulur. 'l'lr;rt the Uganda police claims interest in the suit land by way of irrlvcrse possession and prescription. That the 1"t Respondent has no personal interest in the suit land as the same belongs to tl.rc tJganda police.

#### ISSUES

to

- 65 The Applicant ririsc<l t hc following issues for determination; - <sup>1</sup>. Whether th r: 2 r <sup>r</sup>rl Rcspondent can be added as a party to Civil Suit No,. I01.1 ol 2022? - 2. Whether tl'rc Applicant has shown grounds entitling her to be granted lc.r\'C l,) z,Lmend the Plaint in civil suit No.1O14 of 2022?

#### RESOLUTION

The Applicant filcrl rr rittcn submissions that Court has taken into consideration in dct<:rmining this application. The 2nd respondent was served on th<: 1:)th May 2024 wittr instructions to file a reply

75 to this Applicerlir>:r ;rnd submissions. However, at the time of writing this rulir-rg tlrc iiespondents have not followed Court's directives.

Issue 1,' Whether tltt' 2nd Respondent can be added as a party to Ciuil Suit No. 1014 ol 2022?

- Joinder of partics 1o :r suit is governed by Order 1 Rule 10 (2) of the Civil Procedrrr-c ilrr'lcs which states as follows; "The court mag, at qnA stage o.[ llt<: proceedings either upon or tttithout tle application of eillr<tr ltrrtq, and on suchteflns as mag appear to the court to be just, onlt'r th.ctt the name of ang party improperlg joined, 80 - uhether as plainliJJ'or defendant, be stntck out, and that the name of ang u.tho oucll'rl. to haue been joined, uhether a plaintiff or defendant, or luhose presence before the cottrt r rt t ti I it(: tlecessary in order to enqble court effectiuelg and completelg to ttt iit tclicate upon and settle all questions inuolued 85

in the suit, be ad r lct i ' 90

> Order 7 r.73 Cl'i'rr,,lcr which this Application was also brought provides tlrat; "Arrt1 ttpplication to add of stike out or substitute a plaintiff or defetrrlrut: moq be made to the court at ang time before trial bg motion ()l :;iutlntons or at the tial of the suit in summary

95 manner."

The purposc of .iorrrri,'r ol parties is premised on Section 33 of the Judicature Act (',,,; r.3 u'hich provides that as far as possible all matters in g6n{ 1 r r1', r s-v l;ctween the parties should be completely and finally dctcrrrrir:, rl ;rnd all multiplicities of legal proceedings concerning any ol llrr' rn atters be avoided.

It is trite law th;rr ,, 1,)r(' a person can be joined as party, it must be establishcd tlr rr 'lrr: party has high interest in the case, and it must be clearly ,i, r ,nstrated that the orders sought in the main suit would dirc<': . 1;r)ly affect the party to be added

1os In the case of Kantrtu us. Makomboki Tea Facto Ltd 0081 1EA 110 154, tl,e Court noted tl-rirt for the determination of the question of who is a necessary p:irtv there are two tests, firstly, there must be a right to some relicl-;rgirinst such a party in respect of the matter involved in the procccrling and secondly, it should not be possible to pass on effective dccrcc in the absence of such a party.

The Applicant unrlcr pirr';rgraph 4 and 5 of the Affidavit in support of this Application cor.r lcnds that since the Attorney General by law is a representativc ol. lJganda police and the police officers in particular the lst licspondent being an agent of the Attorney General claims tlr:rl tlrc suit belongs to the Uganda police, it is necessary to add tho All()rney General as a pa-rty to the head suit because the decision r,f (lourt shall affect its claims.

I note that the 1.' 1,1,11 )rrrr Respondent did not file an Affidavit in reply to this Applicirli,,ir. 11o\*.uer, having perused through the

main suit, thc 1"t Rr':rprrrrdent through the 2'd Respondent filed a written statcment ol- rlr:fence, paragraph 4 (a) of the written statement of dcfirrrr','states that in 1970's, the Idi Amin government granti:rl l;rrrci comprised in block 245 plots 225,231 and 233 as'\*,e11 ;rs lll,rr:l< 244 plots 1532,1534 and 1535 to the Uganda policc. 1,25 720

Under paragraph . I rlr ,,1 the written statement of defence, the 2"d Respondent avcrs tlr.,r tlrc Uganda police claims an interest in the suit property by u:r', , rl ;rdverse possession and prescription.

It is trite law llrrrl tlr,' Attorney General is the Principal Legal Advisor to Govt:rn n r, : r r as provided for in Article 19(3) of the 130

Ory

Constitution, and Llrrt rlrc legal opinion of the Attorney General is generally binding on ( lrrvcrnment and public institutions.

It is evident that 1 I i ,: ) 'j,(r Respondent is in conduct of the suit having filed thc r,r,r'ittr:n statement of defence, under paragraph 2

135 of the writtcn stat('ni''nr of defence, the 1"t Respondent's address of service is at thc l ltcspondent's premises which in my view indicates thzrt tlrr'2"1 Respondent is representing the 1"t Respondent.

140 It is my conclusion rr)irt since the 2nd respondent in the written statement of clefcrrr', cl,iims interest in the suit land, adding the 2nd Respondcnt z.r s ;r l);u.ty to the suit is vital for the determination

I answer this issr-r,'rrr t l: r. affirmative.

of the main suit.

745 Issue 2; Whether lltt' ,\ltltlicant has slwun grounds entitling her to be granted leuue to t nt t,'nd the Plaint in civil suit No.1014 of 2022?

The law on an-rcrrrlr ,,rr, of pleadings is found in Order 6 rule 19 which provid<:s t'lr< r'r'of ;rs follows;

oTlw court muu, (tl (,, i :;lage of the proceedings, allotl eitler party to alter or amcncl !'i' ,,r !:cr pleadings in such a manner and on such

150 terms as mag be just, and. all str,-lt amendments shall be made as maA be necessary for thr' l,!ti)o'.e of detennining the real questions in controuersg belu.t<,' t r t ) r L' parties."

155 In the casc of lrr.' Kenneth O'Oonn,,r before the ht'trrin,, t.tt I)ake u. Castelino 1958 EA 461 Sir <sup>t</sup>ttr:d:"[A]mendments to pleadings sought , trl be freely allowed, if theg can be made

a(+

160 165 without injustice to the other side and... there is no injustice if the other side can be compensated bg costs...the court will not refuse to allout an amendment simply because it introduces anew case....but there is no power to enable one distinct cause of action to be substifitted for another...the court will refuse to amend where the amendment would change th.e action into one of a substantiallg different character...or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment e.g. bA depiuing him of a defence of limitation."

It is trite law that amendment may be allowed at any stage as long as it will not prejudice the other party and as long as the other party can be compensated by costs. Furthermore, Section 1OO of the Ciuil Procedure Acf states that amendments are allowed to enable determination of real issues between the parties.

The Supreme Court laid down the governing principles to be considered for amendment if pleadings in Gaso Transporter Seruices Ltd. u. Martin Adala Obene, S. C. C. A. No. O4 of 1994. They are:

- t75 t The intended amendment sltould not cause injustice to the other side. - Multiplicitg of proceedings should be auoided and amendments that auoid such multiplicitg should be allowed. - The application should not be made mala fide iii.

An amendment expressly prohibited bg law should not be allowed 180 iu.

Counsel for the Applicant submitted that the intended amendment does not in any way introduce a new cause of action, that the

fr o

185 addition of the 2"d Respondent as the 2"d Defendant in the head suit and amendment of the Plaint is in the interest of justice, bonafide, and no prejudice shall be caused to the Respondents if the Application is granted.

Counsel for the Applicant also submitted that under paragraph 11 and 12 of the Affidavit in support of the Application that the 2"d Respondent being added as a party to the case is not made malafide but done in good faith and within the law.

The Applicant attached annextue "C" dra-ft amended Plaint on this Application, upon perusal of the amended Plaint, there is no deviation from the original Plaint wherein Applicant's cause of action against the Respondents is for trespass on land comprised in Kyadondo Block 245 Plot 225 at Kabalagala, Makindye, Kampala.

I also noted that the 1"t Respondent having filed the written statement of defence through the 2'd Respondent who claims to have interest in the suit land, the amendment aims at avoiding multiplicity of suits. It is evident that the cause of action against the respondents arise from the same events and is about the same subject matter. 200

I also answer the 2"d issue in the aflirmative

#### CONCLUSION 205

This Application is granted. The 2"d Respondent the Attorney General be added as the 2nd Defendant in Civil Suit number 1014 of 2022.

Each party bears their own costs.

Tindre

#### Elizabeth Jane Alividza

${\bf Judge}$ 215

Date: $\frac{\partial}{\partial t}$

#### Date

Ruling delivered on ECCMIS 220

### Elizabeth Jane Alividza

JA ThuckD<br>Dr. licl2024 Judge Date ......

225