Mukula v Nassanga (Miscellaneous Application 186 of 2023) [2023] UGHCFD 152 (29 March 2023)

## **THE REPUBLIC OF UGANDA**

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

# **(FAMILY DIVISION)**

#### **MISCELLANEOUS APPLICATION NO 186 OF 2023**

## **(Arising from Civil Suit No. 138 of 2020)**

**LINDA PRECIOUS MAKULA ::::::::::::::::::::::::::::::::::::::::::::: APPLICANT** (Suing through Peter Wisdom Lwanga as next friend)

#### **VERSUS**

### **HASSIFA NASSANGA :::::::::::::::::::::::::::: RESPONDENT/DEFENDANT**

### **RULING BEFORE: HON. LADY JUSTICE CELIA NAGAWA**

# **1.0 Introduction**

- 1.1 This is an application brought by Notice of Motion under Article 126(2)(e) of the 1995 Constitution of the Republic of Uganda 1995 (as amended), Section 98 of the Civil Procedure Act, Cap. 98, Section 33 of the Judicature Act Cap.13, Order 18 Rule 13, Order 52 Rules 1 and 2 of the Civil Procedure Rules SI 71-1. The Applicant, Linda Precious Makula (suing through Peter Wisdom Lwanga), who is the Plaintiff in HCCS No. 138 of 2020, is seeking orders that; - **a) The applicant be granted leave to reopen her case.** - **b) The Applicant/Plaintiff be granted leave to adduce additional evidence/information from the National Identification and Registration Authority (NIRA) regarding the maternity of Billy Joy Massanga before this Honourable Court.** - **c) Costs of this application be provided for.**


- 1.2 *High Court Civil Suit No. 138 of 2020 was closed on 6th February, 2023 and the parties had respectively called their witnesses. The matter had been fixed for submissions on 20th February, 2023 for the Plaintiff, 6th March, 2023 for the Respondent and a Rejoinder on 20th March, 2023, Judgement was scheduled to be delivered by email on 13th April, 2023.* The applicant through Peter Wisdom Lwanga filed the application briefly on the following grounds; - **a) The applicant filed Civil Suit No 138 of 2020 and one of the questions of determination is whether Billy Joy Massanga is a daughter of the late Lillian Massanga.** - **b) The respondent/ defendant closed her case on 6th February 2023 and court gave directions on filing submissions.** - **c) The applicant has since obtained fresh evidence from the National Identification and Registration Authority relating to the Maternity of the said Billy Joy Massanga.** - **d)The evidence from the National Identification and Registration Authority was not reasonably discoverable at the time the directions on submissions were given.** - **e) That the evidence from the National Identification and Registration Authority shows that the applicant's mother is Nalule Ann and not the said Lillian Massanga.** - **f) The information in question is necessary and vital to the applicant/plaintiffs case.** - **g) That granting this application will not in any way prejudice the respondent who will be able to cross examine the applicant on the evidence.** - **h)This application has been brought without delay whatsoever from the date the evidence was discovered.**


- **i) It is in the interests of justice that the applicants be granted leave to reopen their case and present the evidence obtained from the National Identification and Registration Authority.** - 1.3. The application was supported by an affidavit deponed to by Peter Wisdom Lwanga containing 18 paragraphs which shall not be reproduced but has been considered. - 1.4. The Respondents filed an affidavit of reply deponed by Dan Luggya holder of a Power of Attorney for the respondent who lives in Italy filed in this Court on 16th March, 2023. The respondent opposed the application on the following grounds, that; - **a) It is incompetent, speculative, and does not warrant a reopening of the plaintiff's case long after the defendant has closed her case.** - **b) The Applicant's case in the main suit is for revocation of Letters of Administration issued to the Respondent on grounds clearly laid out in the plaint and the maternity of Billy Joy Massanga is not one of them.** - **c) The affidavit in support of this application is incompetent as the deponent may not be able to testify to the authenticity of the information given to NIRA.** - **d) The evidence of the maternity of Billy Joy Massanga is not material to the determination of the central issues in the plaintiff/applicant's case to warrant a reopening** of the Plaintiff's case.

# **2.0 Representation**

2.1 The applicant is represented by M/S Justitia Law Advocates and the Respondent is represented by M/S Buwule & Mayiga Advocates. The


parties proceeded by way of oral submissions, which have been adopted by this court.

# **2.2. Issues**

# **1. Whether leave should be granted to the Applicant to reopen its case?**

### **3.0 Resolution by this Court**

- 3.1 The applicant has the onus to prove to satisfaction of court that they have met the conditions to secure leave to have the case reopened. - 3.2 Order 6 rule 2 of the Civil Procedure Rules provides for procedural laws to ensure efficient and expeditious disposal of Court matters. It thus provides; - *"Every pleading shall be accompanied by a brief summary of evidence to be adduced, a list of the witnesses, a list of documents and a list of authorities to be relied on, except that additional list of authorities may be provided late with the leave of Court".* - 3.3. The general purpose of this rule is to ensure that a party comes to court when they have fully internalized and prepared their case. The Plaintiff's list of documents were; a Death Certificate of Lillian Maggen Massanga, Defendant's Petition for Letters of Administration dated 30th June, 2011, Letters of Administration dated 16th July, 2012, Copies of Certificates of title to land comprised in Leasehold Register Volume 4523 Folio 8 Kibuga Block 26 Plot 894 at Bulange and land comprised in Busiro Block 376 Plots 403 and 407, Certified copied of file vide Administration Cause No. 519 of 2011 and any other with leave of Court. The Plaintiff's list of witnesses were the Plaintiff's next friend, Peter Wisdom Lwanga, Erwin Lenerz and any other with leave of court. This is according to the Joint


Scheduling Memorandum and admitted in court on 13th October, 2022 during pre-trial hearing.

- 3.4. The applicant submitted to this court that at the time of the trial, the issue of Billy Joy Massanga's maternity came up. However, the applicant was unable to carry out DNA tests since Billy Joy was out of the country. In the course of the trial, it was found that Billy Joy had a National Identity Card and the applicant then obtained the court order instructing NIRA to provide all the necessary information and particulars relating to Billy Joy Massanga. The applicant now prays that she should be allowed to reopen the case so that this information is tendered in court as evidence. - 4.0. The respondent submitted citing **Complant Engineering & Trade Ltd Vs Joseph Kironde HCMA No. 172 of 2011** that the information that the applicant seeks to address must not have been within the applicant's knowledge in the trial. This is to avoid the applicant trying to fill up gaps in evidence that has already been presented. The respondent further stated that the maternity of Billy Joy Massanga was never a material fact to be determined by this court. The respondent further averred that the new evidence from NIRA could not be conclusive in a matter deciding the maternity/paternity of a child. Scientific evidence is necessary to prove maternity. The declarations made at NIRA were declarations made at large, they are not made under oath and cannot be relied on to determine maternity. - 4.1. In the case of **Simba Telecom v Karuhanga & Anor (Miscellaneous Application 451 of 2014) [2014] UGHC 98 (20 August 2014) Justice Madrama** stated that " I have carefully considered the case of **Smith versus South Wales Bar Association (1992) 176 CLR 256, The decision of Brennan, Dawson, Toohey and Gaudron JJ** on the principles to be


applied in an application to reopen the case or take additional evidence is as follows: First of all it is necessary to distinguish between the considerations which may bear a decision to reopen a case and the processes involved in reconsideration once a case has been reopened. Where there is an application to reopen on the basis that new or additional evidence is available, it will be relevant to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to include it, it would tell decisively against the application. However, if there was no deliberate omission, different considerations may apply depending on whether the case is simply one in which hearing is complete; or one in which the reasons for judgment have been delivered. As regards the former the primary consideration is whether there would be an embarrassment or prejudice to the other side. Where reasons for judgment have been delivered, appeal rules relating to taking fresh evidence provide a useful guide to the manner in which the discretion to reopen should be exercised."

- 4.2. The applicant based this application on the fact that new or additional evidence is available. She states at the time the case was closed, she had not obtained this information from NIRA. The applicant submitted to this court that when she tried to obtain the information from NIRA, she was informed that she needed a court order, which was thereafter granted to her upon application. When she produced the court order to NIRA, the information she seeks to adduce was given to her. However, this was well after the case was closed. - 4.3. Counsel for the respondent vehemently opposed the applicant's submissions, stating that NIRA relies on information from a declarant and


unless a scientific test is done, then a bio data report cannot have relied on.

4.4. I find that the best method to ascertain maternity/paternity is the scientific method. The applicant ought to have applied for this method from this court. Secondly the applicant proceeded to conclude her case without taking any steps to adduce this evidence and I find no sufficient reasons given for failure to apply for a DNA test since several means were available to have the test conducted. The case will therefore not be reopened at this stage.

### 5.0. **Conclusion**

5.1. This application has been found to be both incompetent and devoid of any merit. It is accordingly dismissed with costs to the Respondent. Let the parties follow the schedule of this court to file their respective submissions.

It is so ordered.

# *Dated, signed and delivered this 29th day of March, 2023.*