Butamanya v Ntungamo Municipal Council & 3 Others (Miscellaneous Application 562 of 2023) [2025] UGHC 75 (27 February 2025)

## THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MBARARA HCT-05-LD-MA-0562-2023 (*Arising out of HCT-05-LD-CS-0060-2023*) **BUTAMANYA CONSTANCE ::::::::::::::::::::::::::::::::::::**

## **VERSUS**

# 1. NTUNGAMO MUNICIPAL COUNCIL 2. NTUNGAMO DISTRICT LAND BOARD 3. THE COMMISSIONER LAND REGISTRATION **4. JACOB KAFUREKA ::::::::::::::::::::::::::::::::::::**

**BEFORE:** Hon Lady Justice Joyce Kavuma

## **RULING**

## Introduction

Brought under Section 98 of the Civil Procedure Act, Cap. 71 $\overline{11}$ Section 33 of the Judicature Act, Cap. 13 and Order 52 Rule 1, 2 and 3 of the Civil Procedure Rules, the instant application seeks for orders of this court to grant the Applicant leave to amend the plaint in HCT-05-LD-CS-0060-2023 to include new evidence showing that a one Jacob Kafureka participated and connived with the Respondent/ Defendants to fraudulently obtain certificates of title in question, the addition of the 4<sup>th</sup> Respondent as a Defendant to HCT-05-LD-CS-0060-2023 and the provision of costs for this application.

### Background.

The background of the instant application as could be discerned $[2]$ from the affidavit in support of the instant application was that the

Applicant, after filing HCT-05-LD-CS-0060-2023 he came across evidence showing that a one Jacob Kafureka participated and connived with the respondents/defendants to fraudulently obtain certificates of title in question.

In their reply and in similar terms, the $1^{st}$ , $2^{nd}$ Respondents $[3]$ deposed that the Applicant herein had neglected to attach the intended amended plaint to his application for perusal and appreciation by the Respondents and this Court. That this offended the rules of amendment of pleadings thus making the application malafide, an afterthought and one brought with inordinate delay. That its grant will occasion an injustice and was likely to be prejudicial to the $1^{st}$ and $2^{nd}$ Respondents. On his part, the 4<sup>th</sup> Respondent deposed that it was not true that $[4]$ he connived with the $1^st$ to the $3^{rd}$ Respondents to fraudulently obtain a certificate of title or at all.

There was no response made by the 3<sup>rd</sup> Respondent.

#### Representation.

The Applicant was represented by M/s Kahara & Co. Advocates $[5]$ while $1^st$ and $2^{nd}$ Respondents were represented by Attorney General's Chambers and the 4<sup>th</sup> Respondent was represented by M/s Mugarura, Mwijusya and Co. Advocates. All counsel filed submissions in the matter and I have given them due consideration.

### Analysis and decision of the court.

**Order 6 rule 19** of the Civil Procedure Rules provides that: **[6]**

> "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

> > Page 2 of 6

amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties."

The above provision clothes this court with a discretion to either allow or disallow an amendment of a party's pleadings where it is necessary for the purpose of determining the real questions in controversy between the parties. (See Ketteman vs Hansel Properties [1987] AC 189 at 220A).

It should however be noted that just like all discretions that this court may have, while exercising the power, the court must do so judiciously, taking into consideration the unique circumstances of each case before it.

The principles governing exercise of discretion in allowing $[7]$ amendments have been restated in various authorities both locally by courts superior to this and internationally. (See Gaso Transport Services (Bus) Ltd vs Martin Adala Obene (Supreme Court Civil Appeal no. 4 of 1994), Eastern Bakery vs Castelino [1958] E. A 461, Habib Jaffer vs Vir Singh [1962] E. A 557, Hagod Jack Simonia vs Johar [1962] E. A 336, Charlesworth vs Relay roads and Ors [1999] 4 ALL ER 397 and more recently in Vidyabai and another vs Padamalatha and anor AIR 2009 **SC 1433**). The restatement has given rise to the following principles: $\mathcal{L}$

1. The court has jurisdiction to grant an application to amend the pleadings to raise new points and/or to call fresh evidence and/or to hear fresh arguments:

- 2. The court must clearly exercise its discretion in relation to such an application in a way best designed to achieve justice; - 3. The general rules relating to amendment apply so that: - (a) While it is no doubt desirable in general that litigants should be permitted to take any reasonably arguable point, it should by no means be assumed that the court will accede to an application merely because the other party can, in financial terms, be compensated in costs; - (b)As with any other application for leave to amend, consideration must be given to anxieties and legitimate expectations of the other party, the efficient conduct of litigation, and the inconvenience caused to other litigants; - 4. Each case will have particular and peculiar facts which court ought to take into account when deciding how to dispose of the application to amend. Simply put, every case should be decided on its own facts: - 5. Applications for amendment should be made in good faith; - 6. No amendment should be allowed where it is expressly or impliedly prohibited by any law. - 7. There is no power to enable one distinct cause of action to be substituted for another nor to change, by means of amendment, the subject of the suit. - 8. Amendments which create inconsistency in the pleadings should be refused.

In the instant case, the Applicant seeks to make an amendment of **[8]** his plaint in HCT-05-LD-CS-0060-2023 stating that he came across evidence showing that a one Jacob Kafureka the 4<sup>th</sup> Respondent participated and connived with the respondents/defendants to fraudulently obtain certificates of title in question.

I note and as rightly submitted by counsel for the 1st and 2nd Respondents that the Applicant did not attach to his application the intended amendments for this court to be able to subject them to the settled principles relating to applications of this nature.

This of course is merely a rule of practice and not one of law. (See for example Pascal Rwakahenda vs UPTC (High Court Misc. Application no. 484 of 2014).

Counsel for the 1<sup>st</sup> and 2<sup>nd</sup> Respondents argues that there being no intended amendment was likely to cause an injustice to them since they were not made aware of the intended amendments.

$\mathcal{A}$

The amendments sought in the instant matter are sought before $[9]$ the trial has commenced. Such amendments should freely be freely allowed unless if they violate the principles stated above.

The Respondents will be given a chance to respond to the allegations being fronted by the applicant and the Applicant will bear the burden of proving such claims on a balance of probabilities.

As already observed above, amendments are usually allowed by the court so that the real questions in controversy between the parties are determined and justice is administered without undue regard to technicalities unless this would cause an injustice to the opposite party which cannot be compensated for by an award of costs or if the amendment would introduce a distinct cause of action in place of the original cause of action. (See Mulowooza vs Shah Co. Ltd 2011 UGSC $29).$

Courts do not exist to punish errant parties that fail to strictly adhere to procedural requirements but to adjudicate the real substance of disputes.

The Applicant's application which was self-drafted, in view of this court, though lacking of the procedural niceties, is indicative of a substantive dispute that can only be resolved by allowing the instant application.

In the interests of justice, this court allows the application the costs of which should abide the outcome of the main cause.

The Applicant shall file and serve his amended plaint upon all the Respondents within fifteen days from this ruling and should they wish to, the Respondents shall file their respective replies within twenty-one days thereafter. HCT-05-LD-CS-0060-2023 shall be mentioned on 22<sup>nd</sup> May 2025.

I so order.

Dated, delivered and signed at Mbarara this 21. day of . Lett. 2025.

Jovce Kavuma Judge