Lukandwa v Sentamu & Another (Miscellaneous Application 19 of 2023) [2023] UGHC 385 (7 September 2023)

# **THE REPUBLIC OF UGANDA**

# **IN THE HIGH COURT OF UGANDA AT MASAKA**

# **MISCELLANEOUS APPLICATION NO.19 OF 2023**

# **(ARISING FROM MISCELLANEOUS APPLICATION NO.83 OF 2022 AND MISCELLANEOUS APPLICATION NO.118 OF 2021)**

# **(ARISING FROM DIVORCE CAUSE NO.02 OF 2019)**

### **LUKANDWA KASIBANTE GEORGE WILLIAM:::::::::::::::::::APPLICANT**

#### **VERSUS**

#### **1. GRACE BABISA SENTAMU**

# **2. COMMISSIONER LAND REGISTRATION:::::::::::::::::RESPONDENTS.**

*Before; Hon. Justice Victoria Nakintu Nkwanga Katamba*

# **RULING.**

### **Introduction.**

The Applicant brought this Application under Order 1 Rule 10(2), Rule 10(13) of the Civil Procedure Rules SI 71-1, Section 33 of the Judicature Act and Section 98 of the Civil Procedure Act seeking an order that;

- 1. The Applicant be joined as a party to Miscellaneous Application No.83 of 2022 which is pending before this Court. - 2. The 1st Respondent pays the costs of the Application.

The Application was supported by the affidavit of the Applicant where he states as follows, that;

- 1. He is the executor of the estate of the late Daudi Sentamu. - 2. The orders sought in Miscellaneous Application No.83 of 2022 shall affect the estate of the late Daudi Sentamu for which the Applicant as executor is not part. - 3. Prior to his demise, the late Daudi Sentamu had filed Divorce Appeal No.11 0f 2020 challenging the decree in Divorce Cause No.02 of 2019, where in one of the issues is whether the suit property which is subject to Miscellaneous Application No.83 of 2022 forms part of matrimonial property and the appeal has not yet been determined.


- 4. The Appeal is pending and judgement is yet to be delivered. Proceeding with the Application without according the estate a hearing while the appeal is also pending shall be detrimental to the estate and might render the Appeal a nullity. - 5. The matters brought in Miscellaneous Application No.83 of 2022 pending in this Court are barred by law for being res judicata since the matters ought to have been brought at once during the hearing of Miscellaneous Application No. 118 of 2021. - 6. The 1st Respondent in her ploy to waste and deplete the estate of the late Daudi Sentamu used the order in Miscellaneous Application No. 118 of 2021 to unilaterally survey of the properties without representation of the estate.

The Application was opposed by an affidavit deponed by the 1st Respondent, Grace Babisa Sentamu, where she states as follows, that;

- 1. Joining the Applicant to Miscellaneous Application No.83 of 2022 shall result in misjoinder of parties and misjoinder of causes of action. - 2. In Miscellaneous Application No.83 of 2022, as the Applicant, she seeks no remedy against the Applicant herein or any executor of the estate of the late Daudi Sentamu. - 3. The Applicant has no interest and the orders sought in the instant Application will not directly or legally affect the Applicant since she already recovered the land in Divorce Cause No.02 of 2019. - 4. The proceedings in Miscellaneous Application No.83 of 2022 are not barred. - 5. There is no appeal against the decree in Divorce Cause No.02 of 2019. - 6. The grant to the Applicant is being challenged in Civil Suit No.64 of 2022. - 7. The late Sentamu was accorded a fair hearing in Divorce Cause No.2 of 2019 where in the Applicant recovered the land and it is unnecessary to add the Applicant to Miscellaneous Application No.83 of 2022 where she only seeks further consequential orders arising from Miscellaneous Application No.118 of 2021. - 8. Execution of orders in Miscellaneous Application No. 118 of 2021 from which Miscellaneous Application No.83 of 2022 arises is complete except for property comprised in Plot 9B Baines Terrace, Kizungu, Masaka-FRV 660 Folio 4 wherein there is a pending issuance of title to 50% of the land as her share.

# **Representation.**

The Applicant was represented by Oundo David Wandera of Waymo Advocates while the Respondent was represented by Akanda Solome of M/s Kagsa Advocates.

Both Parties were instructed to file written submissions however, at the point of determination of this Application, only the Applicant had filed written submissions.

On perusal of Counsel's written submissions, it is my observation that Counsel raised to three issues;


- 1. Whether this is a proper case to join the Applicant as a Respondent in Miscellaneous Application No.83 of 2022. - 2. Miscellaneous Application No.83 of 2022 in barred for being resjudicata. - 3. Application is barred by lispendens rule.

### **Submissions for the Applicant.**

# **1. Miscellaneous Application No.83 of 2022 is barred for being res judicata.**

Counsel submitted that Miscellaneous Application No.83 of 2022 seeks remedies in respect to property comprised in Plot 9 Baines Terrace Kizungu Masaka and yet there is already a decision touching on the same matter in Miscellaneous No.118 of 2021 and therefore, Application No.83 of 2022 is barred by law for being res judicata. Counsel relied on Section 7 of the Civil Procedure Act and the case of General Industries Ltd versus Non. Performing Assets Recovery Trust and 3 others, Civil Appeal No.51 of 2007.

### 2. **Miscellaneous Application No. 83 of 2022 is barred by the lis pendens rule**.

Counsel submitted that the 1st Respondent filed HCCS. No.58 of 2022 and Miscellaneous Application No.206 of 2022 which seek similar remedies. Counsel then submitted that the remedies sought in the above proceedings are the same remedies sought in Miscellaneous Application. No.83 of 2022 and if the Application is left to stand, the same may result in contradictions because the other proceedings are still pending. Counsel submitted that Court is bound not to proceed with a matter that is substantially in issue in another matter between the same parties in the same Court. Counsel relied on Section 6 of the Civil Procedure Act and the case of Springs International Hotel Ltd versus Hotel Diplomate Ltd and another.

# **3. Whether this is a proper case to join the Applicant as Respondent in Miscellaneous Application No.83 of 2022.**

Counsel submitted that the orders sought in Miscellaneous Application No.83 of 2022 shall affect the estate of the late Sentamu and it is ideal that the estate be added to the Application


to protect the interests of the estate. Counsel relied on Order 1 Rule 10(2) of the Civil Procedure Rules and the case of Sempasa versus Sengendo, HCMA. No.577 of 2013.

#### **Determination of Application.**

Before I delve into the merits of this Application that is; *whether the Applicant should be added as a Respondent to Miscellaneous Application No.83 of 2022*, it is my observation that the Applicant seeks to also challenge the legality of Miscellaneous Application No.83 of 2022 in this Application, that is; *Miscellaneous Application No.83 of 2022 is barred in law on account of the lis pendens rule and res judicata*.

The Applicant seeks to challenge proceedings to which he is not yet party. What is pertinent is whether this Court can grant the Applicant audience to challenge a proceeding to which he is not yet party and it is my opinion that this Court cannot permit the Applicant to challenge proceedings to which he is not party. This largely pertains to whether the Applicant possesses the necessary locus standi to challenge the legality of the Miscellaneous Application to which he seeks to be added.

To challenge the legality of Miscellaneous Application No.83 of 2022, the Applicant must have locus standi in that Application. Locus standi is the right to be heard in a court or proceeding and when a person has no locus standi, it means has no right to appear of be heard in a specific proceeding. (See: *Dima Domnic versus Inyani and another, HCCA. No.17 and 2016 and Katuntu and another versus MTN Uganda Ltd and others, HCCS. No.248 of 2012*).

The Applicant in this case is not yet a party to the Application whose legality he is challenging. Until he becomes party to the Application, he cannot be heard on the demerits of the Application to which he seeks to become party. It is therefore my finding that raising preliminary points of law that affect Miscellaneous Application No.58 of 2022 in this Application is misconceived. The points of law should be raised in the Application he seeks to be added to and not in this Application.


#### **Merits of the Application.**

# **Whether this is a proper case to join the Applicant as Respondent in Miscellaneous Application No.83 of 2022.**

The court is empowered under *Order 1 rule 1* of the *Civil Procedure Rules S. I 71-1* to join parties who may have a claim or relief on the subject matter under issue.

*Order 1 rule 10(2) of the Civil Procedure Rules S. I 71-1* provides that: '*the court may at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, whose presence before the court may be necessary in order to make the court effectually and completely adjudicate upon and settle all questions involved in the suit, be added*'.

Under *Order 1 Rule 13,* an Application of this nature can be brought by a party seeking to be added, or, the Court under *Order 1 Rule 10(2)* may on its own motion add or strike out a party if Court is of the opinion that the joinder is necessary to facilitate effective and complete determination of the suit. (See: *Kololo Curing Co. Ltd versus West Mengo Co.op Union Ltd [1981] HCB 60*).

It is also important to note that the power to add or strike out a party is discretionary however in exercising this discretion, the Court has to exercise it judiciously. (See: *Yahaya Kariisa versus Attorney General and another, SCCA. No.7 of 1994*).

In *Departed Asians Property Custodian Board versus Jaffer Brothers Ltd [1999] 1 EA 55*, it was held that before a party can be joined, it must be established that the orders sought shall affect the interest of that person and that it is desirable to have that person joined to prevent multiplicity of suits or that the Defendant cannot effectually set up a desired defence unless that person is joined.

In applying the above principles to this Application, it is the Applicant's contention that he is the executor of the estate of the late Sentamu and the orders sought in Miscellaneous Application No.83 of 2022 greatly affect the estate because the subject matter of the


Application is property belonging to the estate. The Respondent on the other hand contends that the orders sought shall not affect the estate since the Respondent already got the suit property vide Divorce Cause No.02 of 2019 to wit there is no appeal and that the orders sought by the Respondent in Miscellaneous Application No.83 of 2022 are just consequential orders.

I have heard an opportunity to peruse the orders sought in HCMA. No.83 of 2022 and the orders sought there in are;

- 1. That the Respondent (Commissioner Land Registration) lifts/de registers a mortgage to finance Trust Bank Limited on Plot 9B Baines Terrace, Kizungu, Masaka FRV 660 Folio 4 in order to issue a certificate of title to the Applicant for 50% of the said land as per orders of this Honorable Court in MA. No.118 of 2021. - 2. The Respondent be ordered to re register the mortgage to finance Trust Bank Limited on the remaining 50% of the parcel of land left for David Sentamu (now deceased) after the sub division process of Plot 9B Baines Terrace, Kizungu, Masaka FRV 660 Folio 4. - 3. Costs of the Application be met by the Respondent.

On further perusal of the record, even though the Respondent avers that in HCMA. No. 83 of 2022 she is simply applying for consequential orders from HCMA. No.118 of 2021, it is my observation that the orders sought in Miscellaneous Application No.83 of 2022 are slightly different from those that were granted in HCMA. 118 of 2021.

In HCMA. No.83 of 2022, the Applicant (Respondent herein) seeks to de register a mortgage on the estate land that was issued in favor of Finance Trust Bank Limited while in HCMA. No.118 of 2021, there was never a mention of any mortgage or de registration of the same. I also note that there is also a pending suit (HCCS. No.58 of 2022) between the Respondent as Plaintiff and Finance Trust Bank, Kyagulanyi Bob and the Applicant herein as Defendants of which, the suit property is the same property subject to HCMA. No.83 of 2022.

It is therefore evident that the orders sought in HCMA. No. 83 of 2022 that is; de registering a mortgage, affects the interests of the estate, and other parties in HCMA. No.83 of 2022 and in the suit as well. It is therefore necessary to add the Applicant herein to HCMA. No.83 of


2022 to address the issue of the existing mortgage which has a bearing on the estate before the Court can accept or reject the Application.

It is also my observation that in HCCS. No.58 of 2022 which is in regards to the property subject to HCMA. No.118 of 2021 and the mortgage thereon, besides the Applicant herein, the other Defendants are; Finance Bank Limited and Kyagulanyi Bob. The orders sought in HCMA. No. 83 of 2022 also affect the interests of the bank. To conclusively resolve the issue therein, it is necessary to also add Finance Bank Limited as a Respondent to HCMA. No.83 of 2022 to effectively and completely determine the Application.

In premise, this Application succeeds with the following orders;

- 1. The Applicant and Finance Bank Limited shall be added as Respondents to HCMA. No.83 of 2022. - 2. The Application shall be served on them within 30 days from receipt of this ruling. - 3. The costs of the Application shall follow the outcome of HCMA. No.83 of 2022.

I so order.

Dated and delivered at Masaka this 7th day of September 2023.

**Victoria Nakintu Nkwanga Katamba. Judge.**