Kanonya & Another v Nsubuga & 3 Others (Miscellaneous Application 221 of 2022) [2024] UGHC 548 (24 May 2024)

Full Case Text

## THE REPBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS APPLICATION NO. 221 OF 2022** (ARISING FROM CIVIL SUIT NO. 147 OF 2017)

- 1. EDIRISA KANONYA - 2. MAIMUNA NAMIREMBE (Administrators of the Estate of Late Asuman Nsubuga) :::::::::::::::::::::::::::::::::::: **VERSUS** - 1. ASUMAN NSUBUGA - 2. NUSURA NABANJA - 3. THE COMMISSIONER LAND REGISTRATION :::::::::::::::::::::::::::::::::::: AND - 4. RWANTALE GILBERT ::::::::::::::::::::::::::::::::::::

## BEFORE HON. LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

This application was brought by Notice of Motion under section 98 $1$ of the Civil Procedure Act, Cap. 71, Order 1 rules 10 & 13 and Order 52 rule 3 of the Civil Procedure Rules, S. I 71-1. It seeks for orders that: (a) the 4th Respondent be joined or added as a defendant in Civil Suit

- No. 147 of 2017; - (b) an amendment of the plaint in Civil Suit No. 147 of 2017 be allowed to reflect the addition of the 4th Respondent and claim therein;

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- (c) in the alternative, a validation of the amended plaint in Civil Suit No. 147 of 2017, which already cited the $4^{th}$ Respondent as a defendant: and - (d) costs of the application be provided for.

$2.$ The brief grounds of the application are contained in the Notice of Motion and amplified by the $1^{st}$ Applicant's affidavit dated $2^{nd}$ June, 2022. The grounds of the application are that:

On the 7th day of September, 2017, the Applicants filed a suit $(a)$ against the 1st to 4th Respondents;

(b) the Applicants are aware that the $4th$ Respondent filed Misc. Application 248 of 2017, seeking to be struck off the plaint owing to the fact that he was served outside the mandatory 21 days;

(c) to avoid wasting court's valuable time, the Applicants consented to the said application and the 4th Respondent was struck of the plaint as a defendant:

the 4th Respondent is one of the alleged proprietors of the suit land $(d)$ and claims ownership of part of the suit land;

given the alleged interest by the 4th Respondent and the claim of $(e)$ the Applicants relating to the same land, it is necessary to add the 4th Respondent to the suit, given the fact that any of the court's decision, is likely to affect him or his interest in the suit land;

adding or joining the said party will enable court settle the dispute $(f)$ conclusively and decide the issues of controversy among the parties:

it is a corner stone of justice that a decision is always made after $(q)$ hearing all parties involved in a matter and if court decides the matter without the presence of the 4th Respondent, it will amount to a miscarriage of justice;

$(h)$ the Applicants had in Miscellaneous Application No. 35 of 2019 applied to court and were granted leave by the court to amend the plaint which was duly served on the 4th Respondent:

$(i)$ the Applicants request the court as an alternative, to validate the said amended plaint and the 4th Respondent files a defense to the said amended plaint; and

$(i)$ it is in the interest of justice that the orders sought be granted to allow the Respondents a chance to defend themselves as it is allowed by the Constitution for all parties to be heard.

The application was opposed by only the $1^{st}$ and $2^{nd}$ Respondents $3.$ who filed their respective affidavits in reply on 20th July, 2022. The grounds are that:

(a) the 4th Respondent filed Miscellaneous Application No. 248 of 2017, having been served with summons in Civil Suit No. 147 of 2017, outside the prescribed timelines under the law;

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(b) the Applicants entered a consent with the $4th$ Respondent in respect to the said Miscellaneous Application No. 248 of 2017, withdrawing Civil Suit No. 147 of 2017 and all the claims against the 4th Respondent;

$(c)$ upon withdrawing Civil Suit No. 147 of 2017 against the 4th Respondent, court made an order to the effect that all the claims against the 4th Respondent who was the 3rd Defendant in Civil Suit No. 147 of 2017, were withdrawn or struck out under Order 25 rule 1 of the Civil Procedure Rules S. I 71-1; and

(d) this application lacks merit, a waste of court's time and that it should be dismissed with costs

Counsel for the Applicants and counsel for the 1st and 2nd 4. Respondents filed the parties' written submissions and the Applicants' counsel filed submissions in rejoinder. When the application was called for hearing, the Applicants were represented by Counsel Mutyaba Ivan from M/s DEMOTT Law Advocates. Counsel Wanyama John from M/s Nsubuga Mubiru & Co. Advocates appeared for the 1st and 2nd Respondents.

$5$ The Applicant's counsel contended that the real question in controversy between the intended parties arises out of the transfer and sale of the suit property in Block 82, Plots 45 & 46 of which the 4th Respondent claims to have an interest as purchaser and proprietor of

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Plot 46, Block 82, land at Kabunga and in that regard the suit property involves the 4th Respondent. That there are common questions of both law and fact that arise. That the 4th Respondent has a common question as to whether he is a *bonafide* purchaser of the suit land and whether the transactions in relation to the suit land were lawful.

6. Counsel further submitted that for a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit, either it has to be shown that the orders which the plaintiff seeks in the suit would legally affect the interest of that person, or that it is desirable, for avoidance of multiplicity of suits, to have such persons joined so that he is bound by the decision of the court in that suit. Counsel cited the case of Departed Asians Property Custodian Board v. Jaffer Brothers Ltd $(1991)$ 1 E. A.55 at p. 67.

The Applicants' counsel submitted that the joinder of the intended $\overline{7}$ 4th Respondent who alleges to have bought Plot 46 which is part of the suit property from the $1^{st}$ and $2^{nd}$ Respondent or $3^{rd}$ parties meets the test so that the relief for a declaration that the suit property forms part of the estate of the late Asuman Nsubuga and therefore vested in the administrators of the estate, a declaration that the $1^{st}$ and $2^{nd}$ Respondents' registration as proprietors of the suit land is illegal or was procured through fraud; and that any purchaser of the suit land is not a *bonafide* purchaser for value and therefore a trespasser, directly affects the $4^{th}$ Respondent.

8. Furthermore, the Applicant's counsel argued that the Applicants' claim for cancellation of the registration of the $1^{st}$ , $2^{nd}$ and $4^{th}$ Respondents as proprietors of the suit land and thereon substitute the same with the administrators or the order for eviction against the trespassers requires the 4th Respondent as necessary to avoid multiplicity of suits.

9 The Applicants' counsel argued that the intended Defendant in the suit has a direct interest or participation in the suit property as purchaser of a plot in the suit property. That the joinder of the 4th Respondent shall not cause any injustice to the Respondents and the joinder of this intended Defendant shall assist the honourable court to adjudicate upon all real issues in controversy between the parties. That the $4th$ Respondent's presence before the court is necessary to enable court effectively and completely adjudicate upon and settle all questions involved in the suit.

Counsel added that section 98 of the Civil Procedure Act allows $10.$ this court to make orders for purposes of the ends of justice. That there is already an amended plaint in Civil Suit No.147 of 2017 on record, which already cited the 4th Respondent as a defendant. That court finds it fit to consider and validate the already filed amended plaint and the Applicants are allowed to serve it on the 4th Respondent. Counsel prayed that the application be granted as prayed, and that the costs thereof follow the final event.

In opposition, the $1^{st}$ and $2^{nd}$ Respondents' counsel argued that $11.$ section 114 of the Evidence Act, Cap. 6, provides that when one person has, by his or her declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon that belief, neither he or she nor his or her representative shall be allowed in any suit or proceeding between himself or herself and that person or his or her representative, to deny the truth of that thing. Counsel referred to the case Pan African Insurance Company (U) Ltd v. International Air Transport Association HCCS No. 667 of 2003.

$12.$ Counsel stated that the Applicants are stopped from bringing the instant application having declared before court that the claims against the 4th Respondent were withdrawn. That for the Applicants to turn around and wish to add the 4th Respondent to the said civil suit after withdrawing the claims against him, amounts to an abuse of court process and exposes the Applicants as people on a fishing expedition. That the Applicants' claim against the 1st & 2nd Respondents in the head suit can be determined without adding the 4th Respondent.

It was added for the $1^{st}$ and $2^{nd}$ Respondents that if this application 13. is entertained, this court will be entertaining an illegality since it is on court record that the Applicants withdrew the claims against the 4th Respondent. Counsel prayed that the application is dismissed with costs, for it has no merits.

$14.$ In rejoinder, the Applicants' counsel prayed that court takes no importance to the Respondents' submissions as they are piece of

$\overline{7}$ sublime mysticism and make no sense. That the 1st and 2nd Respondents do not represent the intended 4th Defendant, as such cannot speak on his behalf. Furthermore, that the consenting to Miscellaneous Application No. 248 of 2017, was in so far as procedure is concerned and that the consenting was intended to save both court's time and that of the litigants. The Applicant's counsel argued that this action did not in any way extinguish the Applicants' claims against the 4th Respondent.

## Issue: Whether it is proper to add the 4th Respondent as a defendant to Civil Suit No. 147 of 2017.

## Court's consideration.

Order 1 rule 13 of the Civil Procedure Rules, S. I 71-1 provides for $15.$ addition of a party to a suit. It provides thus:

"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 motion or summons or at the trial of the suit in a summary manner."

Further, under section 33 of the Judicature Act, Cap. 13, court has $16.$ powers to grant remedies so that as far as possible all matters in controversy between the parties are completely and finally determined and all multiplicities of legal proceedings concerning any of the matters is avoided.

The court has the discretion of adding or striking off a party to or from pleadings, whether on application of the parties or on court's own

motion. This discretion must be exercised judiciously, based on sound principles. For one to be added to a suit, it must be clearly demonstrated that the orders sought in the main suit directly legally affect the party sought to be added. However, an order to add or substitute a party should not cause any injustice to any of the parties to a suit and should be geared towards ensuring that all questions in controversy are heard and determined by court to finality.

$17.$ In Departed Asians Property Custodian Board v. Jaffer **Brothers Ltd [1999] I. E. A 55, the Supreme Court held 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 suits. 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."

In the instant case, the 4th Respondent who is sought to be added $18.$ to Civil Suit No. 147 of 2017 was once the 3rd Defendant in the same suit. The 4th Respondent then filed Miscellaneous Application No. 248 of 2017 seeking for an order that the suit be struck out or dismissed against him for late service of summons to file defile a defence. By consent of both the Applicant and the Respondents in that application, it was agreed that the claims against the Applicant (4th Respondent herein) in Civil Suit No. 147 of 2017, be withdrawn or struck out under Order 25

rule 1 of the Civil Procedure Rules and that the Respondents pay to the Applicant UGX. 2,000,000/ $=$ as costs of the application. Subsequently, the consent was endorsed by this court. This court, presided over by me, stated thus:

"Consequently, the claims against the applicant $(3^{rd})$ defendant in Civil Suit No. 147 of 2017) are withdrawn or struck out under Order 25 rule 1 of the Civil Procedure Rules. S. I. 71 - 1. Miscellaneous Application No. 248 Of 2017 is hereby allowed on the terms of the consent document endorsed. I hereby order that the file in Miscellaneous Application 248/2017 be closed."

The result of the said consent was that the $4th$ Respondent ceased being a party in Civil Suit No. 147 of 2017.

19. Order 25 rule 1 (1) of the Civil Procedure Rules provides thus: "The plaintiff may at any time before the delivery of the defendant's defence or after receipt of that defence before taking any other proceeding in the suit (except any application in chambers) by notice in writing wholly discontinue his or her suit against all or any of the defendants or withdraw any part or parts of his or her alleged cause of complaint and thereupon he or she shall pay the defendant's costs of the suit or if the suit is not wholly discontinued, the costs occasioned by the matter so withdrawn. Upon the filing of the notice of discontinuance, the costs shall be taxed but the discontinuance or

withdrawal, as the case may be shall not be a defence to any *subsequent action.*

(2) Except as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw or discontinue a suit without leave of the court but the court may before or at or after hearing upon such terms as to costs, and as to any other suit, and otherwise as may be just order the action to be discontinued or any part of the alleged cause of complaint to be struck out."

Order 25 rule 2 of the Civil Procedure Rules provides that "When a suit has been set down for hearing it may be withdrawn prior to the hearing by either the plaintiff or the

defendant upon filing a consent signed by all the parties."

The effect of an act of withdrawal is that the Plaintiff ceases to be $20$ a Plaintiff before the court. If he or she is the only plaintiff and withdraws the whole of the suit, the suit comes to an end and nothing remains pending before the court. If he or she withdraws only a part of the suit that part goes out of the jurisdiction of the court and it is left with only the other part. Once a suit or part of it is withdrawn the court ceases to have jurisdiction over the withdrawn suit or part thereof and thus the court becomes functus officio. As far as the withdrawn suit is concerned the suit is at an end and no further proceedings can be taken in it.

The right of a plaintiff to withdraw his or her suit is expressly $21.$ conferred upon him or her by Order 25 rule 1 of the Civil Procedure Rules but no right is similarly conferred upon him or her to revoke or

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rescind the withdrawal. So long as he or she remains the Plaintiff, he or she may do any act which he or she may do in that capacity. However, after withdrawal of the suit against a party, the claimant losses the right of being the plaintiff as well as the right to act in that capacity against the withdrawn party.

22. In the case of Frostmark EHF [Through Its Attorney John **Kabandize] v. Uganda Fish Packers Limited, Court of Appeal Civil Appeal No. 114 of 2011**, Justice Percy Night Tuhaise, JA held that:

"A withdrawal of a suit by its very nature infers that the suit ceases to exist from the record and it will appear as though no matter had in the first place been commenced. A cursory examination of Order 25 of the Civil Procedure Rules which deals with withdrawal of suits shows that a withdrawn suit is a discontinued suit which attracts costs, but it does not bar, or is not a defence to, any subsequent action. The language of Order 25 of the Civil Procedure Rules suggests that a subsequent or fresh suit is distinct from a withdrawn suit, or a former suit. Such subsequent or fresh suit is bound by the law of limitation in the same manner as if the former suit, or the withdrawn suit, had not been instituted."

Therefore, withdrawal of a legal action places the parties in the $23$ same position as if no such action had been brought to the court. Basing on the withdrawal consent entered between the Applicants and the 4th Respondent on 1st June, 2022, the suit between them ceased to exist. It follows that though it seems to this court that the 4th Respondent has interest in the subject matter mentioned in Civil Suit No. 147 of 2017, it

would be legally and procedurally wrong to add him to the very suit from which he was withdrawn. It would be an abuse of court process to allow the plaintiffs who are the applicants in this application to revive their withdrawn action against the 4th Respondent. Once appropriate issues are raised, the main suit can be determined without making the 4th Respondent a defendant in Civil Suit No. 147 of 2017.

$24.$ Pursuant to the foregoing analysis, I find no merit in this application and hereby dismiss it with costs to the 1st and 2nd Respondents who actively participated in the hearing of this application.

I so rule and order accordingly.

This ruling is delivered this day of 24 day, 2024 by

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**FLORENCE NAKACHWA JUDGE.**

*In the presence of:*

- (1) Counsel Gidongo Martin holding brief for Counsel Mutyaba Ivan from *M/s DEMOTT Law Advocates, for the Applicants;* - (2) *Ms. Pauline Nakavuma, the Court Clerk.*