Matovu v Asiimwe (Miscellaneous Application 2585 of 2024) [2025] UGHCLD 20 (23 January 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLENEAOUS APPLICATION NO.2585 OF 2024 (ARISING FROM CIVIL SUIT NO. 502 OF 2021) MATOVU EVERINE ::::::::::::::::::::::::::::::::::::::::::::::::: APPLICANT**

#### **VERSUS**

**ASIIMWE TIMOTHY ::::::::::::::::::::::::::::::::::::::::::: RESPONDENT**

# **BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA RULING**

- 1. This was an application by way of Summons in Chamber brought under Order 1 rule 10 (1) 2 & 4 and Order 6 Rules 19 and 31, for orders that: -, - i) The respondent be added or joined as a defendant to HCCS 502 of 2021. - ii) That the applicant be granted leave to amend the plaint and summons to file a defence vide HCCS No. 502 of 2021 to include the respondent as a defendant and particulars of fraud and bad faith in respect to the respondent. - *iii)* Costs of the application be provided for.

#### *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by the applicant which briefly states as follows; - i) That on the 26th of May 2021 together with the other plaintiffs we filed Civil Suit No. 502 of 2021 against the defendant for a declaratory judgement that the plaintiffs are the lawful owners of the suit land and cancellation of Kimera Twaha (2nd defendant) from the certificate of title of the suit land. - ii) That on the 7th days of March 2022, this honorable court issued a temporary injunction order by the consent of parties. - iii) That in the pendency of the suit and the temporary injunction order, the 2nd defendant went a head to fraudulently sell and transfer ownership of the suit land. - iv) That following the above-mentioned fraud, the respondent proceeded and violently evicted me and enclosed my land

with barricades and illegally demolished the brick wall fence.

- v) That at the time of filing the main suit the material facts relating to the particulars of fraud against the respondent were not available to the applicant and thus the same could not be pleaded in the plaint. - vi) That it is desirable that the respondent is added as a defendant to the main suit such that the dispute is necessarily resolved.

#### *Respondent's evidence;*

- 3. The application is responded to by an affidavit deponed by the respondent which briefly states as follows; - i) That the respondent was never aware of any temporary injunction order or the main suit. - ii) That upon purchase of Plot 1382 I assumed physical possession of the suit land and it was not occupied by the applicant as such and there was no such violent eviction, enclosure with barricades.

- iii) That the applicant filed Miscellaneous Application No. 1040 of 2024 for contempt of court of the said temporary injunction order however the same was dismissed. - iv) That I am not aware that Plot 1382 forms part of the subject matter in Civil Suit No. 502 of 2021 as I am not a party to the said suit and equally, I am not aware that the applicant is the lawful owner of the portion of the suit land comprised in Plot 1382. - v) That I purchased the said land Bonafide and for value without notice of fraud or caveat and having conducted a diligent search and found that the land was in names of Kimera Twaha. - vi) That my presence is not necessary for the settlement of all questions involved in the suit as the orders and declarations sought can be procured against the defendants.

#### *Representation;*

4. The applicant was represented by Counsel Owak Raymond of M/S LMN Advocates whereas the respondent was represented by

Counsel Nakueira Musa of MOM Advocates. Both parties filed written submissions which I have considered in the determination of this ruling.

#### *Issues for determination;*

*Whether the respondent can be added to the main suit as a defendant?*

*Whether leave can be granted to the applicant to amend the plaint?*

#### *Resolution and determination of the issues;*

5. 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'*

- 6. It is important to note that the purpose of joinder of parties. According to **Samson Sempasa vs P. K. Sengendo H. C. M. A No.577 of 2013,** is to enable court to effectually and completely deal with the matter in controversy and avoid multiplicity of proceedings. - 7. For a party to be joined on ground that their 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 that person could not effectually set up a desired defence unless that person was joined or an order made that would bind that other person *(See; Departed Asians Property Custodian Board vs. Jaffer brothers Ltd [1999] 1. E. A 55)* - 8. In the instant application, the applicant under paragraphs 5,6 and 7 states that the 2nd defendant transferred land that forms part of

the suit land in Plot 1382 to the respondent during the pendency of the main suit something which makes the respondent a necessary party to the proceeding of the main suit.

- 9. In reply, the respondent avers in his affidavit in reply that he has never been a party to the main suit and that he purchased the said land as a Bonafide purchaser without any knowledge of any existing interests. - 10. The applicant adduced evidence of transfer instruments and the certificate of title indicating how the land purchased by the respondent formed part of the suit land. The reading of the transfer form and the certificate of title to the said land indicates that the land the respondent purchased is comprised in Wakiso Block 127 Plot 1382. - 11. Among the prayers the plaintiff's claim for in the main suit is that they are the lawful proprietors of land comprised in Kyadondo Block 127 Plot 792 and Plots 1376,1377,1378,1379,1380,1381,1382,1383,1384. - 12. From the reading of the pleadings and the submissions it appears that the respondent's land forms part of the land in dispute in the main suit and the orders sought by the applicant in

the main suit are to have an impact on the interest of the respondent.

- 13. The applicant further prays for amendment of the plaint to include the respondent as a defendant and include the particulars of fraud against the added defendant. - 14. The law on amendment of pleadings is governed by order 6 Rule 19 of the Civil Procedure Rules which states that; *"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 amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.* - 15. Amendments may be allowed before trial, during trial or before judgement as long as the amendment shall not prejudice the other party and cause an injustice and as long as the other party can be compensated by costs. emphasis is placed on the fact that the amendment should be freely allowed provided it is not done mala fide and does not occasion prejudice or injustice to the other party which cannot be compensated by award of costs.

- 16. In the instant application the amendment the applicant seeks is one that calls for the addition of the respondent as a defendant in the main suit and include the particulars of fraud against the said added party. - 17. I am of the view that it would have been prejudicial to the other parties to the suit had the applicant sought for amendment of the cause of action but rather the applicant seeks to include the particulars of fraud against the respondent who will have a chance to reply the same via his written stament of defence. - 18. In order to effectively adjudicate upon and settle all the questions in dispute in the main suit, the respondent should be added as a party to the main suit instead of bringing a separate action against the respondent. - 19. Therefore, the instant application succeeds with the following orders; - i) That the respondent be added as defendant in the main suit vide Civil Suit No. 502 of 2021. - ii) That the applicant is hereby granted leave to amend the plaint and the summons to file a defense to include the

respondent as a defendant and particulars of fraud in respect of the respondent.

iii) No orders as to costs.

**I SO ORDER**.


### **NALUZZE AISHA BATALA**

**Ag. JUDGE**

# **23rd/01/2025**

## **Delivered Electronically via ECCMIS on the 23rd day of January,**

**2025.**