Kisosonkole v Babirye and 4 Others (Miscellaneous Application 233 of 2023) [2023] UGHCLD 179 (30 June 2023)

Full Case Text

#### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA

#### [LAND DIVISION]

### MISC. APPLIC. 233 OF 2023

### [ARISING FROM CIVIL SUIT NO 0978 OF 2021]

#### **TEFIRO KISOSONKOLE**

#### **APPLICANT**

$\mathsf{V}$

- 1. BABIRYE AGNES - 2. AGIBAN LTD - 3. COMMISSIONER LAND REGISTRATION - 4. STEPHEN MUHINDA - 5. KATO KAWUMA

#### **RESPONDENTS**

### BEFORE: HON LADY JUSTICE P. BASAZA-WASSWA

#### **RULING**

#### Representation:

- 1. Mr. Oosan Thomas and Mr. Akampurira Timothy for the Applicant - 2. Mr. Asodio Jordan for the 1st and 2nd Respondents. - 3. Mr. Jombwe Isaac for the $4^{th}$ and $5^{th}$ Respondents. - 4. None for the 3rd Respondent.

Masamillammy 30/6.

#### Introduction:

- The Applicant filed the present application by motion under Section 98 of The Civil $[1]$ Procedure Act1, and Order 1 Rules 3, 10 and 13, and Order 52 Rules 1 and 3 of The **Civil Procedure Rules2.** By which application he seeks for the following Orders; - 1. That Mr. Muhinda (the 4th Respondent) and Mr. Kawuma (the 5th Respondent) be joined as Defendants in HCCS NO. 978 OF 2021: TEFIRO KISONSONKOLE V. AGNES BABIRYE & AGIBAN LIMITED (herein referred to as 'the Head Suit'). - 2. That the pleadings in the Head suit be amended to reflect Mr. Stephen Muhinda and Mr. Kato Kawuma as parties to the suit. - 3. That the costs of this application be in the cause.

#### Background:

- In the head suit, the Applicant; Mr. Kisonsonkole claims to have originally owned $[2]$ land comprised in Kibuga Block 4 Plot 224 at Namirembe. That the said land was affected by the road construction of Rubaga -Natete- Wakaliga Road, and was subdivided to create Plots 878 and 879. - Mr. Kisonsonkole further claims that he is the registered proprietor of the land $[3]$ comprised in Kibuga Block 4 Plot 879 at Namirembe (Hereinafter referred to as; 'the suit land'). - Vide the Head suit, Mr. Kisonsonkole sued Ms. Babirye Agnes, M/s Agiban Ltd and $[4]$ The Commissioner Land Registration (The CLR), contending inter alia, that Ms. Babirye

Massimilliam 30/6.

$1$ Cap 71 $2$ S. I 71-1 as amended had allegedly been fraudulently registered, by the CLR, on the certificate of title to Plot 224, on Nov. 5, 2015 after the same had long been sub-divided in 2009 to create plots 878 and 879. That Ms. Babirye allegedly fraudulently transferred the said plot 224 into the names of M/s Agiban, a Company that she allegedly owned. That the duo now allegedly trespassed on the suit land claiming the same as their own.

In answer, Ms. Babirye and M/s Agiban Ltd deny the said allegations against them. $[5]$ Applicant's case:

- The gist of Mr. Kisosonkole's present application and affidavit in support is: $[6]$ - i) That Ms. Babirye and M/s Agiban Ltd (the 1st and 2nd Respondents) entered onto the suit land without his consent and started utilising it for their benefit. - ii) That Ms. Babirye and M/s Agiban Ltd have since let out the suit land to Mr. Muhinda and Mr. Kawuma (the 4th and 5th Respondents) as their tenants for a consideration. - iii) That Mr. Muhinda and Mr. Kawuma have also sublet and authorised other persons to enter onto the suit land, to use it for the sole benefit of Mr. Muhinda and Mr. Kawuma, at his (Kisonsonkole's) expense and detriment. - iv) That Mr. Muhinda and Mr. Kawuma are necessary parties for the effectual, full and complete adjudication, hearing and determination of the Head suit.

# Answer by 1st and 2nd Respondents:

Ms. Babirye and M/s Agiban filed an affidavit in reply by which they oppose the $[7]$ application. They contend:

MasamWanne 396.

- That the Application is incompetent and misconceived. $i)$ - That Mr. Muhinda and Mr. Kawuma are merely their agents, and cannot be ii) joined in a suit where the Principal is disclosed. - That the suit land to which they claim a proprietary interest is distinct from iii) that which Mr. Kisosonkole claims belongs to him.

# Answer by the 4th and 5th Respondents:

- Mr. Muhinda and Mr. Kawuma filed an affidavit in reply opposing the application, [8] and contend: - That they are mere agents, as joint tenants of Ms. Babirye on Plot 224, where $i)$ they operate a business for commercial gain. - That they have not sublet the land to 3rd parties. ii)

## Issue for court's determination:

Whether sufficient cause has been shown to grant the Orders sought? $[9]$

# Submissions by Counsel:

- Learned Counsel for the Applicant filed their written submissions, which for brevity, $[10]$ I will not reproduce here. I have however duly considered their arguments. - Learned Counsel for the Respondents did not file any submissions. $[11]$

### Analysis by Court:

It is trite that a Plaintiff is at liberty to sue Defendants jointly and or severally if his $[12]$ alleged claim against them arises out of the same act or transaction, or series of acts

# Misahill mm 30/6.

or transactions, where common question of law or fact would arise if separate suits were brought against those Defendants.

# (See Order 1 Rule 3 of the Civil Procedure Rules).

I note that in answer to this application, all the Respondents have not contested that $[13]$ they have a relationship to the land comprised in Kibuga Block 4 Plot 224 at Namirembe, and to each other.

At this stage, this Court does not concern itself with the merits or demerits of the Head suit, but simply concerns itself with the question:

'whether the alleged claims of the Plaintiff arise out of the same act or series of acts or transactions, and whether common questions of law or fact would arise if separate suits were brought against the existing defendants and those persons intended to be added as defendants?'

In this case, the answer is in the affirmative. Mr. Muhinda and Mr. Kawuma state $[14]$ that they are currently in physical possession of Plot 224. They also state that they carry out business for gain thereon. In these premises, I thus find that adding them as parties to the Head suit is necessary for the determination of the real questions in controversy between the parties.

### Decision of Court

In the result, this application is allowed in the following terms; $[15]$

The 4th and 5th Respondents: Mr. Muhinda & Mr. Kawuma are hereby joined $\mathbf{1}$ as Defendants in the Head Suit vide HCCS No. 978 of 2021.

# Macmil mm 30/6.

$\mathsf{S}$

Leave is granted to the Applicant: Mr. Kisosonkole; to amend his pleadings $2.$ in the Head suit to reflect Mr. Muhinda and Mr. Kawuma as Co-Defendants thereto. Such amendment shall be made within ten (10) days from the date of this Ruling.

The costs of this application shall be in the cause. 3.

I so Order,

Macambammy 30/6.

P. BASAZA - WASSWA **JUDGE** June 30, 2023

Ruling delivered electronically on the Judiciary ECCMIS system and via email to the parties: