Naggamba Hood Kyeyune v Church of God East Africa (Miscellaneous Application 219 of 2023) [2024] UGHC 1284 (30 January 2024)

### THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA HOLDEN AT MPIGI

### MISC. APPLICATION NO. 219/2023

### (ARISING FROM CIVIL SUIT NO. 169/2017)

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NAGGAMBA HOOD KYEYUNE :::::::::::::::::::::::::::::::::::: VERSES

### CHURCH'OF GOD OF EAST AFRICA ::::::::::::::::::::::::::::::::::::

# BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA K. **RULING**

- 1. This application was brought under Order 6 Rule 19 and 31 of the Civil Procedure Rules and Section 98 of the Civil Procedure Act for orders that; - a. Leave be granted to the Applicant to amend the Plaint in Civil Suit No. 169/2017

### b. The Applicant's cost of this Application be in the main cause.

- 2. The grounds of the Application are contained in the Chamber Summons and the affidavit in support of Naggamba Hood Kyeyune *(the Applicant herein)* and briefly are that; - - The Applicant sued the Respondent for Declaration that Block 106 Plot i. 15 Land in Mawokota is rightly his, that the Respondent acted fraudulently in transferring the land into its names, that all the subsequent sub-divisions and transfers from the original plot 15 were illegal, null and void, an order for cancellation of all titles derived from the illegal subdivision, an order for vacant possession against the current occupants of the suit land, that the occupants are trespassers, General and Punitive damages. - The Respondent illegally parcelled out plots 113,114,115,116,117 and ii. 118 which were later transferred to Sanyu Nasejje Winnie, Mathias

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Lucky Buyondo, Josephine Nalukwago and Plot 117 and 118 returned to the Applicant;

- iii. That at the time of filing the suit, the value of the said land was erroneously 390,000,0000/- (Three Hundred Ninety Million) which does not clearly state the Applicant's claim; - iv. The proposed amendment will enable court to investigate all issues in controversy and shall avoid multiplicity of suits and shall not prejudice the Defendant in any way. - The Application is brought in good faith and that it is in the best interest $V$ . of justice that it is granted. - 3. The Application is further supported by the following documents; Search Statements for Property comprised in Mawokota Block 106 Plots 113, 114,115 and 116; and a copy of a further Amended Plaint. - 4. In reply Mr. Patrick Kyeyune a Senior Pastor with Church of God of East Africa (U) **(the Respondent herein)** opposed the Application in his Affidavit in Reply filed that; - the value of the suit land was intentionally under declared by the Applicant and his Advocates to cheat government of court filing fees and that the same is tainted with illegality and not amendable; that the alleged 975,000,000/- is speculative, imaginative, fanciful, biased, not **supported by evidence, not** believable/tenable at law; that the proposed amendment is not necessary as the facts previously pleaded are sufficient to enable this court resolve the disputed between the parties; that the Application has been brought in bad faith to enable the Applicant tactfully seek an alternative remedy for compensation and other remedies as seen in the proposed further amended plaint. - 5. That the Respondent will be prejudiced as the proposed further amendment will require him to amend the Written statement of defence, re-open pleadings and affect the evidence (witness statements) already on court record which have to be re-done thereby delaying the hearing and determination of the

head suit; that it is in the interest of justice that the proposed amendment is disallowed and the application be dismissed with costs.

**6.** The Applicant filed a rejoinder in paragraph 8 they attached a valuation report as Annexure 'A' by Allied Property Surveyors of September 2023 indicating the value of the disputed land is now **Ug Shs 1,213,000,000 (one billion two hundred and thirteen million, only)** although in the rejoinder states $975,000,000/=$

### 7. Legal Representation;

The Applicant was represented by Counsel Mohamed Ali Kajubi from M/s M. A. Kajubi & Co. Advocates while the Respondent was represented by Counsel Ntegyereize Alauterio from M/s Ntegyereize, Ingura& Musiimenta Advocates.

8. When the Application came-up for hearing on $10^{th}/10/2023$ , parties were given directions to file the submissions which they complied with. The submissions by both counsels have been considered but will not be reproduced.

### 9. Issues for determination before Court are;

- $i.$ Whether leave to amend Civil Suit No. 169/2017 should be granted; - ii. Remedies available:

#### 10. Resolution; Issue no.1

Counsel for the applicant submitted that 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 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 under Order 6 Rule 19 of the Civil Procedure Rules. In the case of **Ssenyimba & Ors Vs Birikade & Anor Misc. Application No. 378 of 2018** where it was held that, "an amendment should not be denied if it is for purpose of the just and final resolution of disputes between parties. Such amendment must be in interest of justice and should be

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solely for clarifying and ensuring that once they are brought, the matters previously before court and all related issues touching the subject matter concerning the parties are finally and fully disposed of".

He submits further that the amendment sought by the Applicant is meant to ensure that the actual value of the suit land is reflected in the pleadings so that court can fully determine all issues relating to the subject matter.

- In reply Counsel for the Respondent on the case of Gaso Transport $11.$ Services(Bus) Ltd Vs Martin Adala Obene SCCA NO.4 OF 1994 (1990 -**1994) E. A 88** cited in the recent decision of **Crane Bank Ltd (in Liquidation)** Vs Sudhir Ruparelia & Anor (SC. Civ. Application No. 2 of 2021) - 12. The conditions to be fulfilled before an amendment can be granted are laid; - a. The amendment should not work an injustice to the other side. An injustice which can be compensated by the award of costs is not treated as an *injustice.* - b. *Multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed.* - *c. An application which is made mala fide should not be granted.* - d. No amendment should be allowed where it is expressly or impliedly prohibited by law, 'limitation of action'. - The applicant seeks to amend the value of the subject matter to 13. 957,000,000. That the value of 390,000,000 was stated erroneously in the plaint and does not clearly state the Applicant's claim. - 14. In response to this the Respondent points out that Applicant's allegation and submission that the value of the suit land was erroneously stated during filing is counsel's mistake/error should be proved by evidence, that this was not a mistake or error of counsel but was intentionally under-declared in order to pay less filing fees, cheat government of revenue which should not be condoned by this court. That the error since 2017 should have been noticed by the applicant.

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- This case was filed in the then Nakawa High Court on 10/06/2015 vide 15. Civil Suit No. 548/2015; upon closure of the above court, the matter was transferred to High Court Land Division Vide Civil Suit No. 2548/2015; later, by a Letter dated $4^{th}/10/2017$ written by M/s MA Kajubi & Co. Advocates, counsel requested for the file to be transferred to Mpigi Court for Proper management since the cause of action arose in Katende, Mpigi along Masaka road which is within the Jurisdiction of Mpigi High court; on $24^{th}/10/2017$ , court ordered the file to be transferred to Mpigi High Court for proper management; - 16. This matter has been in court for 9 (nine years) 'A case is considered backlog if it has spent two or more years in the court system before it is disposed of completely' (see case backlog definition on page 30 of JUDICIARY OF UGANDA ANNUAL PERFOMNCE REPORT FY 2022/2023. In this same report the High court had a total backlog of **25,736** cases by the end of FY 2022/2023 see figure 9 showing a graph of the Pending and backlog cases for each court level on page 31 of the report. This confirms that this current civil suit is one of the case backlog the Ugandan Judiciary is grappling with.

I have also had a benefit of perusing Misc. Application No. 303/2018 (Arising from Civil Suit No. 169/2017) a consent Ruling was filed on 1<sup>st</sup> February 2019, endorsed by court on $14^{th}/2/2019$ it is on record. In which both parties consented to the amendment of the plaint and agreed to adopt "the proposed Amended Plaint" as their Amended Plaint. In that proposed amendment, a prayer for compensation in paragraph(h) was added. The defendant was given one week to file an amended defence and the plaintiff was also allowed to reply within one week.

$17.$ I have cautiously checked the Main suit file no.169/2017 formerly NAK 548/2015 I have not seen any copy of the amended Pleadings only the proposed amended plaint annexed to M. A no.303/2018 is on record and not signed. There is no Amended Defence nor reply as agreed in the Consent ruling of $14^{th}/2/2019$ .

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- 18. I believe the earlier proposed amended plaint in $M. A$ 303/2018 had captured the prayers of Compensation, Punitive damages and General damages these can avail the Applicant/plaintiff an array of remedies from which court can take into account the appreciation of the value of the subject matter. - 19. Therefore, this subsequent application for further amendment is a mockery of justice and unnecessary in light of Consent Ruling in which the parties agreed to adopt the Proposed amended plaint as their Amended Plaint. However, nothing was later filed till today and "a fresh further amendment" is sought when the previous one in M. A $303/2018$ dated $14^{th}/2/2019$ concluded by consent of both parties has never been complied with. Failure to comply with court directions is not only an abuse of court process but contempt of Court. - 20. The conditions laid down in the case of Gaso Transport Services(Bus) Ltd Vs Martin Adala Obene (supra) this court must examine if the principles for the grant or denial of an Application for amendment are present in the instant Application - 21. The amendment should not work an injustice to the Respondent, nor should the amendment be prohibited by any existing law for instance the **court fees Rules** was already complied with in 2015. - $22.$ This case as noted above has been in court for 9 nine years since 2015. Allowing an amendment of the value of the subject matter at this stage shall set in motion a whole new set of pleadings, the Respondent's counter claim is also on record etc. - 23. The Applicant also attached a valuation report as Annexure $A'$ to his affidavit in rejoinder; the valuation was conducted on $03/10/2023$ after approximately 8 years when the suit was filed, the Respondent did not get a chance to respond to this new piece of evidence. - Be that as it may, the Valuation report actually gives a completely different 24. figure of the current unencumbered open market value in the region of

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1,213,000,000/- (One Billion Two Hundred Thirteen Million) from the $975,000,000/$ = in the proposed further amended Plaint.

25. The Applicant argues that the Respondent can easily amend her Written Statement of Defence and cross-examine the surveyor.

I believe this will unquestionably prejudice the Respondent as stated in their reply and submissions to this Application.

- 26. Given the current market value of land and Market trends it is expected that land shall appreciate in value over time therefore Court takes judicial notice of the fact that land appreciates in value given the number of years that go by. - 27. Finally, it would be unrealistic to allow this application to amend the value of the subject matter as the suit progresses since Order 6 rule 19 allows an amendment at any stage of the proceedings. There must be certainty of the cost litigation because the value of the subject matter stated in the plaint of 2015 is **not just a figure** but one that informs, decisions like the pecuniary Jurisdiction, the court fees payable, the instruction fees payable at the time of filling etc. - 28. To allow this application will set a very bad precedent where litigation will be delayed more because every litigant who will realise the value of the subject matter has appreciated will file an application for Amendment. - In addition to that some of these civil suits particularly land disputes, the value of the subject matter might have even out grown the Pecuniary jurisdiction of the courts they are initially filed, for instance a case in the chief Magistrates court may now be in the wrong pecuniary jurisdiction because of the appreciation of the value of the disputed land, since the pace of litigation is sometimes advertently or inadvertently slow. - 31. The test laid in the case of Gaso Transport Services(Bus) Ltd Vs Martin **Adala Obene (supra)** has not been met in this application. This Court

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therefore finds no merit in the application it is dismissed accordingly. I make no orders to cost though am alive to the provisions of section 27 subsections (1) & (2) of the Civil Procedure rules.

Signed, dated and delivered at Mpigi this.................................... van 2024

Nabakooza Flavia. K Judge