Komakech v Oroma & 3 Others (Miscellaneous Application 43 of 2024) [2024] UGHC 742 (16 August 2024)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA HOLDEN AT KITGUM**

# **MISCELLANEOUS APPLICATION No. 043/2024**

## **(Arising from KITGUM HIGH COURT – CIVIL SUIT No. 40/2022)**

# 5 **(Formerly GULU HIGH COURT - CIVIL SUIT No. 04/2022)**

### **KOMAKECH ROBBS WILLIAM APPLICANT**

**Versus**

- **1. OROMA CHARLES** - **2. ANYWAR RICHARD** - 10 **3. OBOL BEN BOB FRANCIS** - **4. ADYANGA FRANCIS RESPONDENT**

## **BEFORE HON. MR. JUSTICE PHILIP W. MWAKA.**

# **RULING.**

## **Introduction and Background.**

- 15 [1]. The Applicant, in his first prayer, seeks orders from this Court granting him leave to Amend the Plaint; and, secondly, Orders that costs of the Application are provided for. - [2]. The Application is instituted by way of Chamber Summons filed on the 13th March, 2024 brought under **Section 33 of the Judicature Act, Cap. 13 (now** - 20 **S. 37 Cap. 16); Section 98 of the Civil Procedure Act, Cap. 71 (now Cap. 282); Order 6 Rules 19 and 31 of the Civil Procedure Rules, SI 71 - 1.** - [3]. These citations have since been revised by the **Law Revision Act, Cap. 3** and **Statutory Instrument No. 049/2024: The Law Revision (Commencement of the 7th Revised Edition) (Principal Laws)** - 25 **Instrument, 2024.** - [4]. Supporting the Application is an Affidavit attached deponed by the Applicant.

#### **The Applicant's Case.**

- [5]. The Applicant's grounds (being the Plaintiff in the Main Suit) are stipulated and expounded upon in his own supporting Affidavit and are: - firstly, that in 30 1991 his late Father, Mr. Obol Lazaro, gave him the suit land at Ayul "B" Cell, Pager "B" Ward, Pager Division, Kitgum Municipality measuring approximately two (2) acres as a gift *Inter Vivos*; secondly, that his siblings being the Respondents herein (Defendants) claim that the suit land belongs to the Estate of their late Father (Mr. Obol Lazaro) and are contesting the gift 35 *Inter Vivos*; thirdly, that his then Lawyers Messrs. Abore & Co. Advocates who prepared the original Plaint and Messrs. Otee & Co. Advocates who prepared the first Amended Plaint inadvertently stated in paragraph **4(d)** - See paragraph **4(d)** of both the Original Plaint and the Amended Plaint - that he had **successfully** sued a neighbour one Aleng Benson for trespass in the then 40 Chief Magistrate's Court of Gulu holden at Kitgum in the 1990's **and won** which is allegedly **false** and instead it was his late **Father** whom had filed the suit in which he was a **witness**; fourth, that his then Lawyers had not been **clear** in paragraph **4(e)** of the Amended Plaint (See the Original Plaint as well) about the **date** he started putting up houses on the suit land; fifth, that 45 the foregoing facts (see highlights) are pertinent to the Main Suit and materially affect the reliefs sought by him thereby necessitating further Amendment of the Plaint; sixth, that he believes that by grant of the Application and allowing him to further Amend his Plaint no injustice or prejudice will be occasioned to the Respondent's case - while on the other 50 hand he will suffer injustice if the Application is not allowed; and, seventh and lastly, that the Amendment if granted will enable the Court consider and determine the real issues in controversy in the course of the Trial. - [6]. The Applicant attached the proposed Amended Plaint which is **Annexture "A"** to his Affidavit which is the only document presented by the Plaintiff to 55 the Court in support of the Application.

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#### **The Respondent's Case.**

- [7]. The Respondents oppose the Application objecting to the changes cited in the intended second Amended Plaint - and filed an Affidavit in Reply on the 27th March, 2024 of the 3rd Respondent Obol Ben Bob Francis in which he 60 states in respect of the Respondents: - firstly, that the suit land which measures approximately 1.85 Acres and is valued at approximately Ushs. 30,000,000/- (Uganda Shillings Thirty Million) is customary land inherited from their late Father Mr. Obol Lajaro who acquired it as a gift from one Paul "Apao" who was a Local Administrator referred to as *"Rwot Kweri"* in the Luo 65 language with the Respondents who are the Applicant's siblings contesting the notion that the land was gifted to the Applicant *Inter Vivos*; secondly, the Respondents oppose the Amendment of the Plaint because the proposed paragraph **4(d)** is a **complete deletion** of the previous Amended Plaint which is **replaced with new contents**; thirdly, that in reference to paragraph 70 **4(g)** of the Defence the Applicant **omits to mention** in the proposed Amended Plaint that he was a witness in the earlier suit filed by his (their) late Father or make any mention of the earlier Court case; fourth, the Applicant believes that the Amendment of paragraph **4(d)** would be unjust since it **does not guide the Court** in determining the real questions in controversy 75 between the parties; fifth, that the proposed paragraph **4(e)** is opposed since it is a disguised Amendment of paragraph **4(d)** of the first Amended Plaint and it **is muddled up** with **contents deleted** regarding the earlier Court case and with paragraph **4(e)** being misleading; seventh and lastly, the Respondents believe that the proposed Amendments are brought in bad faith 80 and are not necessary to the main suit and will cause grave injustice to the Respondent's case. - [8]. The substantive aspects of the Application and parts of the supporting Affidavit which the Respondents contest and sought to highlight are in respect to the Applicant's role as a witness in a suit filed by their late Father.

### 85 **The Applicant's Rejoinder.**

[9]. In rejoinder, the Applicant contends that the averments in the Affidavit in Reply are mere assertions and baseless and himself averring that the suit land is valued at Ushs. 200,000,000/- (Uganda Shillings Two Hundred Million) and that the reason for deletion of paragraph 4(d) are already stated – being the 90 inadvertent inclusion by his previous Lawyers – and that the Amendment will not prejudice the Respondents as it will instead enable the Court determine all the matters in controversy.

### **Representation.**

- 95 [10]. Counsel, Mr. Louis Odongo, represented the Applicant. The Applicant was in attendance. - [11]. Counsel, Mr. Jude Ogik, represented the Respondents. The Respondents were in attendance.

### 100 **Proceedings of the Court.**

[12]. The matter came up before the Court on the 20 th March, 2024 during which directions were given for filing pleadings and submissions and on the 5th June, 2024 for compliance.

### 105 **Pleadings Filed in the Main Suit.**

- [13]. The Original Plaint was filed on the 21st February, 2022 in response to which the Defendants filed their Written Statement of Defence on the 15th March, 2022. - [14]. The 1st Amended Plaint was filed on the 24th May, 2022 in response to which the Defendants filed their Amended Written Statement of Defence on the 2nd 110 June, 2022.

#### **The Applicant's Submissions.**

- 115 [15]. The Applicant addressed the issue of **Whether leave should be granted to amend the Plaint in the Main Suit** and citing **Order 6 Rule 19 of the Civil Procedure Rules** as well as related authorities including **SCCA No. 4/1994: Gaso Transport Services Limited Vs. Martin Adala Obene** as well as **Miscellaneous Application No. 348/2002: Lea Associates** 120 **Limited Vs. Bunga Hill House Limited** and **Miscellaneous Application No. 468/2016: Namugenyi Margaret Ntabazi & Anor Vs. Nambi Stella & 4 Ors** - submitted that as a general Rule amendment of pleadings should be allowed at any stage of the proceedings where the Court is satisfied that the amendment will enable an adjudication of the real questions in 125 controversy between the parties and at the same time no injustice would be occasioned as a result of the amendment. The Applicant expounds on other considerations for amendment adding that multiplicity of proceedings should be avoided and *malafide* amendments as well as those prohibited by Law should be disallowed. Additionally, an amendment sought should not change 130 or have the effect of changing the cause of action substantially and a Court will not exercise its discretion to allow an amendment which constitutes a distinctive cause of action or changes the subject matter. - [16]. It is his case that the omissions and misstatements necessitate amendment of the Plaint to provide clarity and no injustice or prejudice will be occasioned 135 as the real matters in controversy will be established through providing material facts. Otherwise, in as far as he is concerned the Application conforms to the requirements for Amendment, including - no change has been made to the cause of action and his not stating that he was a witness in his Father's suit is irrelevant, a multiplicity of suits will be avoided, the 140 amendment is not prohibited in Law and without *malafides* or bad faith. - [17]. The Applicant's other contentions and averments are a re-iteration of his grounds already outlined herein-above.

#### **The Respondent's Submissions.**

- [18]. The Respondents submit on the same issue and oppose the Application. - 145 [19]. The Respondents complain that the proposed Amended Plaint seeks to omit (delete) paragraph 4(d) of the earlier Amended Plaint (and the Original Plaint) in respect of content regarding the earlier suit filed in trespass by their Father and further that the new paragraph 4(d) of the proposed Amended Plaint is a re-introduction of the contents of paragraph 4(e) of first Amended Plaint – 150 with stealthily introduced phraseology, intended to mislead the Court much as the facts are essentially the same. This extends also to paragraph 4(f) of the first Amended Plaint vis-à-vis 4(e) of the proposed Amended Plaint – with certain lines (3 & 4) allegedly stealthily and deliberately omitted (deleted) in respect of their Father's earlier case. It is submitted that the net effect is a 155 fraudulent Amendment with certain paragraphs stealthily changed while the content of others deliberately omitted and yet others introduce new content by way of smuggling thereby offending the Law on Amendment of Pleadings. - [20]. It is submitted that the earlier amendment had already stated dates as 1992- 1995 much as the contents of the paragraph were generally intact. In their 160 view, the first Amended Plaint should have been prepared with more vigilance and caution to avoid a repeat of earlier mistakes in the Original Plaint. - [21]. It is their case and their view that the Applicant seeks to downplay or eliminate references to the 1991 suit instituted by his father in which he was simply a witness – which he had previously falsely claimed that he had instituted. This 165 being because the averment undermines and is adverse to his claim of the suit land being a gift *Inter Vivos* – in as far as if the land had been gifted to the Plaintiff by his Father, then the Plaintiff would have been the litigant and not his Father. This distortion they contend is *malafide* and is in bad faith, intended to mislead the Court and occasion a miscarriage of justice - which cannot be 170 atoned - to better the Applicant's case at the expense of the Respondents. - [22]. In conclusion, the Respondents prayed that the suit is dismissed with costs. ### **The Applicant's Rejoinder.**

[23]. In rejoinder, the Applicant contends that it is the Respondents that seeks to mislead the Court in regard to paragraph 4(d) regarding the suit alluded to and 175 the stated gift *Inter Vivos* and their submissions are misplaced and untenable. The Applicant denies any deception in the Amendment and generally reiterates his earlier submissions insisting that the changes are intended to provide clarity to the Court with the content remaining substantially the same.

[24]. The Applicant emphasizes that the Respondents will have the opportunity to 180 cross-examine him and his witnesses during the Trial. The earlier prayers for grant of the Application are re-iterated.

### **Issue(s) for Consideration.**

[25]. The Issue for consideration to be addressed by the Court is – **Whether** 185 **sufficient cause is established for the Court to exercise its discretion to grant leave to the Applicant to Amend the Plaint.**

### **Considerations and Determination of the Court.**

[26]. The general Amendment of Pleadings is provided for by **Order 6 Rule 19 of** 190 **the Civil Procedure Rules** –

### **Order 6 Rules 19 - Amendment of Pleadings.**

**"The Court may, at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such manner and on such terms** 195 **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".**

[27]. The Court apparently is given wide discretion to allow Amendment of Pleadings much as such discretion must be exercised judiciously.

- 200 [28]. In allowing amendments, care must be taken to give due consideration to prohibitions that may arise such as matters incorporated in the Pleadings which may be affected by limitation as well as others proscribed by Statute on the one hand; and on the other hand, instances of the intended amendments not conforming to the requirements of the Pleadings such as allegations of 205 fraud not being particularized. This rationalizes the requirement for the intended Pleading sought to be amended having to be attached to the Application for amendment for due consideration of the Court. - [29]. The Court has given due consideration to the Submissions of the respective Parties. The principles and Authorities associated with amendment of 210 Pleadings were duly and appropriately cited and needn't be restated. - [30]. The core consideration and duty of the Court in the circumstances of the instant case is to review the content of the proposed Amended Plaint attached to the Application which shall be duly evaluated by the Court vis-à-vis the Applicant/Plaintiff's earlier Pleadings including the Original Plaint and first 215 Amended Plaint in light of the objections raised particularly as to deception in its framing and presentation tantamount to bad faith and *malafides* to make a determination allowing it, or not. - [31]. A review of the proposed Amendment indicates: firstly, that all references to the earlier suit which the Applicant now admits was instituted by his late 220 father against one Aleng Benson and which in the earlier Pleadings including the Original Plaint and the first Amended Plaint he had falsely claimed to have instituted himself were removed from the proposed Amended Plaint in entirety. This alteration is not immediately apparent and could only be discerned upon thorough scrutiny. It was the case and the standard that 225 proposed additions to Pleadings would be clearly highlighted and boldly underlined; whilst matters expunged would be clearly crossed-through in the proposed Amendment. The rationale was to give the Court full notice of the changes intended. Here, the old Paragraph **4(d)** simply vanished.

- [32]. Secondly, in regard to Paragraph **4(e)** of the proposed Amended Plaint vis-à-230 vis paragraph **4(f)** in the Original Plaint and the first Amended Plaint with the corresponding content - specifically references to the earlier suit involving one Aleng Benson, have similarly vanished. It is not immediately apparent that the content has been expunged as no indication is given by the Applicant. - [33]. Thirdly, the specification of the years **1991** and **1993** in the new Paragraph 235 **4(d)** of the proposed Amended Plaint - previously Paragraph **4(e)** of the Original Plaint and the first Amended Plaint - which years had not been stipulated, the Court observes that specification of the years would in fact generally add value of the Pleadings – much as the same could be achieved through testimony. - 240 [34]. Significantly, the Applicant (Plaintiff in the main suit) in expunging the content cited herein-above from the proposed Amended Plaint seems to have completely overlooked the need to Amend the Summary of Evidence in the proposed Amended Plaint which retains the old content specifically in paragraph 4 where the Plaintiff still maintains that he himself filed suit against 245 the said Aleng Benson in trespass, as opposed to the suit having in fact been filed by his father in which he was simply a witness – as he now admits. - [35]. Therefore, upon considering the Original Plaint alongside the first Amended Plaint and the now proposed Amended Plaint as regards paragraph **4 (d) – (f)**, the Court finds that the proposed Amendment is clumsy and inconsistent 250 on the one hand; and on the other hand, the deletions are not altogether forthright and are not effected in a manner indicative of the Plaintiff intending to give the Court full and actual notice of the intended changes to the Pleadings in the proposed Amended Plaint. The Applicant clearly intends to entirely expunge all reference to the earlier suit involving Aleng Benson much 255 as it is still pertinent for the Court to take Judicial Notice of the earlier Court proceedings and determination and the role of the Applicant in the litigation in as far as it affects his claims of gift *Inter Vivos*, if at all.

- [36]. Entirely expunging the content cited does not enable the Court reach a just and fair determination. An Amendment maintaining the references to the suit 260 and therein clarifying the Applicant's (Plaintiff's) role would have been pertinent. However, the furtive nature of the vanishing content is not indicative of good faith or *bonafides*. Rather, it portends bad faith and *malafides*. Whilst the Respondents are accorded the opportunity to respond to any Amended Pleadings by the Plaintiff and would subsequently have the 265 opportunity to cross-examine the Applicant's (Plaintiff's) witnesses and later make submissions, the Court is not inclined to grant the Amendment of such deficient and obfuscated Pleading. - [37]. Therefore, in regard to **Section 98 of the Civil Procedure Act** and related Authorities already cited referencing the principles involved in the 270 Amendment of Pleading, the Court hereby declines to grant the Application. - [38]. The Court does not find merit in the notion of *"sufficient cause"* advanced by the Applicant (Plaintiff) concerning supposed inadvertence of his previous Attorneys in including averments in relation to the earlier suit. It is the finding of the Court that the reference to the existence of the earlier suit was 275 forthright and pertinent in reaching a just and fair determination in the suit. Conversely, the move to expunge all such references would not be in the interests of substantive justice and will not be permitted by the Court. The Parties will have occasion to address the Court at the appropriate time. - [39]. In conclusion, the Court considers it in the interests of justice that the 280 Application and intended Amendment as presented should not be allowed. - [40]. Having carefully given due consideration to the Application, supporting Affidavit and Annextures thereto especially the proposed Amended Plaint reviewed alongside the Original Plaint and the first Amended Plaint as well as considering the Written Submissions of the Parties and the circumstances of 285 the case, the Application is hereby dismissed. - [41]. The Applicant shall meet the costs of the Application.

# **Orders of the Court.**

[42]. Accordingly, the Court makes the following Orders: -

1. The Application for Amendment of the Plaint is hereby dismissed.

290 2. The Applicant shall meet the costs of the Application.

It is so Ordered.

**Signed and Dated on the 16 th day of August, 2024 at Kitgum High Court Circuit.**

295 **Philip W. Mwaka**

**Acting Judge of the High Court.**

## **Delivery and Attendance.**

This signed and dated Ruling has on the directions of the Presiding Judge been delivered to the Parties electronically on **Friday, 16 th day of August, 2024 at**

300 **10:00am** by the Deputy Registrar, Kitgum High Court Circuit.

- 1. Deputy Registrar, Kitgum High Court Circuit: Mrs. Suzanne Aisia Musooli. - 2. Counsel for the Applicant: Mr. Louis Odongo. - 3. Counsel for the Respondents: Mr. Jude Ogik. - 4. Court Clerk and Interpreter: Mr. Atube Michael. - 305 5. Interested and Affected Persons and Entities.

**Philip W. Mwaka**

**Acting Judge of the High Court.**

**Kitgum High Court Circuit.**

**16 th** 310 **day of August, 2024.**