Najjemba and Another v Attorney General (Miscellaneous Application 1858 of 2022) [2023] UGHCLD 351 (9 February 2023)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA **[LAND DIVISION] MISCELLANEOUS APPLICATION NO. 1858 OF 2022** (ARISING FROM CIVIL SUIT NO. 477 OF 2015)

# 1. LILIAN NAJJEMBA

# 2. BAGARUKAYO BERNARD ::::::::::::::::::::::::::::::::::::

#### **VERSUS**

### ATTORNEY GENERAL ::::::::::::::::::::::::::::::::::::

# **BEFORE: HON JUSTICE DR. FLAVIAN ZEIJA**

#### **RULING**

This application was brought by way of Chamber Summons under O.6 rules 1 & 31, O. 1 rule 13, O. 11 rules 1(a) of the CPRs S. I No. 71-1, Sections 64 and 98 of the CPA and Sections 33 & 39 of the Judicature Act for orders that;

- a) Leave be granted to amend the plaint by substituting the 1st and 2nd Plaintiffs with Kiddu Bruno Byakatonda, John Lubike Ssekyajja, Ssonko Apollo Lule and Kawesi Levi so that the head suit may proceed at the instance of the new entrants being the 1st, 2nd, 3rd and 4th Plaintiffs respectively. - b) Leave be granted to the Applicants to add a one Ntege Robert Victor being the Administrator of the estate of the Late Andereya Mubito Lubike (who by 1972 was the registered proprietor of the suit land), so that the head suit may proceed with him as 5th Plaintiff. - c) That based on the judgment on admission award of UGX. 1, 570, 963, 242 (One Billion Five Hundred Seventy Million Nine Hundred Sixty-Three Thousand Two Hundred Forty-Two shillings only) dated 11th December 2019, the Defendant proceeds to pay the new Plaintiffs the harmonized value of the suit land as of this day, inclusive of both the 30% disturbance and mesne profits for the period between 30th October 2014 up

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- f) That the Respondent should proceed to pay the new Plaintiffs a harmonized market value of the suit land as of today, inclusive of both the 30% disturbance and mesne profits for the period between 30th October 2014 up to date and with interest at a rate of 6% per annum from the date of the judgment on admission till payment in full. - g) That the yardstick for harmonizing the market value based on periodical appreciation of value and disturbance have been applied by the line ministry on previously settled compensations of former neighbors to the suit land per the valuation reports marked as annexture "D1" and "D2" - h) That the Respondent should proceed to pay the said monies to the new registered proprietors pending the hearing and determination of the unresolved issue of mesne profits /imputed rent from 1972 to 18th November 2014 till payment in full. - i) That it is in the interest of justice that this application is granted to ensure that adequate compensation is paid to the claimants.

In opposition to the application, Richard Adrole for the Chambers of the Attorney General deponed that this application is misconceived and lacks merit for the reasons that;

- a) The court entered judgement on admission on 19th December 2019 against the Respondent in a sum of UGX. 1, 570, 963, 224 as per the revised valuation report of the Chief Government Valuer - b) The Applicants herein acquired the suit land in October 2014 and it is on that basis that the valuation and computation was reached. - c) The Attorney General has always dealt with the Applicants who even lodged a bill of costs and an application for taxation based on the judgment on admission. - d) This application is an attempt to alter the judgment on admission issued by court to change the material circumstances of the case. - e) The proposed amendment of the Plaint envisaged by the Applicants introduces a new cause of action which is prejudicial to the Respondent at this stage after material evidence has been considered by the court and the Written Statement of Defense is over 5 years old. - f) The proposed amendment if granted will unjustly deprive the Respondent of the valid defense of limitation of actions against the proposed Plaintiffs. - g) The proposed amendment of the Plaint will not assist court to adjudicate the real issues in controversy between the parties which have already been decided by court through a judgment on admission.

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may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."

For parties to be joined, they must demonstrate to court 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 the defendant could not effectually set up a desired defence unless that person was joined or an order made that would bind that other person. (Departed Asians Property Custodian Board v. Jaffer Brothers Ltd [1999] I. E. A 55; See also: Gokaldas Laximidas Tanna v. Store Rose Muyinza, H. C. C. S No. 7076 of 1987 [1990 - 1991] KALR 21.)

In the case of Kingori vs. Chege and Others [2002]2 KLR 243 the court listed guiding principles when intended party is to be joined as follows. Firstly, he must be a necessary party. Secondly, he must be a proper party. Thirdly, in case of the Defendant there must be a relief flowing from the Defendant to the Plaintiff. Fourthly, the ultimate order or decree cannot be enforced without his presence in the matter (emphasis mine). Lastly his presence is necessary to enable the court effectively and completely adjudicate upon and settle all questions involved in the suit. Similarly, in the case of Kamau vs. Makomboki Tea Factory Ltd [2008] 1 EA 154 the court noted that for the determination of the question of who is a necessary party there are two tests. Firstly, there must be a right to some relief against such a party in respect of the matter involved in the proceeding and secondly, it should not be possible to pass on effective decree in the absence of such a party.

The purpose of joinder of parties is therefore to avoid multiplicity of suits. Under Section 33 of the Judicature Act, Cap. 13 court has powers to grant remedies so that as far as possible all matters in controversy between the parties are completely and finally determined and all multiplicities of legal proceedings concerning any of the matters are avoided. This application was brought by parties who seek Orders, the consequence of which affect parties (intending Plaintiffs) who are alien to this application. Certainly, any Judgments, Orders, directions given by the Court in this application and /or the head suit will affect Intending Plaintiffs as the new registered owners of the suit land. It therefore goes without saying that they would qualify to be called "necessary parties" within the meaning of the law so as to enable the Court determine the issues herein conclusively save that they have chosen, either willfully or by mistake of their advocates, from participating in the prosecution of this application. The said

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intended plaintiffs) who have not formally expressed interest to be bound by such orders nor participated in the proceedings before Court. Therefore, where the intending Plaintiffs have not formally brought the application themselves, the net effect is that they cannot be made to pursue the head suit where there is no formal application to be joined as parties to such a suit because in the event that they lose the case against the opposite party they could be condemned to costs in a case they did not express interest to join. **See; Santana Fernandes** vs. Kaala Arjan & Sons & 2 Ors [1961] EA 693.

Therefore, in the end result, I am disinclined to grant this application for the reasons afore stated.

Consequently, this application is dismissed with costs to the Respondent.

$\ldots$ day of $\ldots$ 2023. Dated at Kampala this... Flavian Zeija (PhD) PRINCIPAL JUDGE