Nakanjako v R.L Jain Limited & 5 Others (Miscellaneous Application 1925 of 2023) [2024] UGCommC 124 (7 May 2024)

Full Case Text

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA

### (CoMMERCTAL DTISIONI

# MISCELLANEOUS APPLICATION NO. L925 OF 20.23 ARISING FROM CIVIL SUIT NO. 94 OF 2023

# NAKANJAKO MARGRET APPLICANT IrERSUS

l. RLJAINLIMITED

- 2. KIWANUKA PETER KAWEESI - 3. KIRUNGI JONATHAN - 4. TAMALE ALLAN - 5. NILE GENERAL AUCTIONEERS - 6. COMMISSIONER LAND REGISTRATION: : : : : : : RTSPONDENTS

# Before Hon. Lady Justice Patricia Kahigi Asiimwe

### Ruling

### Introduction

- This application was brought by way of chamber summons under sections 33 of the Judicature Act, section 98 of the Civil Procedure Act, Order 6 rules 19 and 3i of the Civil Procedure Rules S. I. 71-1 (CPR) seeking orders that: I - a) Leave be granted to the Applicant to amend the Plaint in Civil Suit No. 94 of 2023 and the !nd, Jrd, 4th Sth' and 6'h Respondents be added as Defendants. - b) The amended pleadings be frled and served to the Defendants. - c) Costs of this Application be provided for.

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- 2. The Application was supported by an affidavit sworn by Margret Nakanjako the Applicant. She stated as follows: - a) She filed Civil Suit No. 94 of 2023 against the l"t Respondent seeking prayers that; a declaration that the loan agreement between her and the Respondent is illegal, null, and void for offending mandatory provisions of the law and charging of exorbitant interest rates; a permanent injunction doth issue against the Respondent its agents, assignees, employees, servants, successors in title and/ or anybody claiming or acting under their authority from selling or in any way dealing with land comprised in Bugerere Plot 1552 measuring 0.141 hectares, general damages and costs of the suit. - b) The l"t Respondent fraudulently sold and transferred the suit land comprised in leasehold Register Volume 4657 Folio 7 Plot 23118 Kyadondo Block 273 land at Kigo measuring approx. 0.38 hectares to the 2nd, 3rd, and 4th Respondents pending determination of Civil Suit No. 94 of 2023. - c) When the 1"t Respondent through the 6th Respondent advertised the suit land in Daily Monitor Newspaper on Sth September 2022, t}re Applicant held a meeting with the 1", Respondent's officials and agreed that the 1"t Respondent stops the sale of the suit property as the Applicant pays off the loan facility. - d) The l"t Respondent having agreed to stop the sale of the suit land and having received UGX. 15,0OO,OO0 from the Applicant should not have sold her property without readvertising and valuing the property. - e) The Applicant lodged a caveat on the suit land to protect her interests against the 1"t Respondent's fraud. - f) Yusuf Kakerewe an officer of the 6tt Respondent sent the Notice to the Caveator of an application to remove a caveat to a different postal address P. O. Box l42OS Kampala instead of P. O. Box 25485, Kampala that the Plaintiff put in the caveat as her address for purposes of the caveat.

- g) The sale of the suit land to the $2^{nd}$ , $3^{rd}$ , and $4^{th}$ Respondents was illegal because the procedures of selling mortgaged property were not followed. - h) The $5th$ Respondent facilitated the fraudulent sale of the Applicant's property seven months after advertising without valuing the suit land and selling it below the current market value. - i) The $6th$ Respondent participated in the fraud when it effected the transfer of the suit property seven months after advertising without valuing the suit land and selling it below the current market value. - i) The proposed amendment is not in any way prejudicial to the Respondent since no new cause of action is being introduced by the Applicant and the amendments.

#### Representation

The Applicant was represented by Raphael Masaba of M/S RG 3. Masaba Advocates. The $1st$ Respondent was represented by Nelson Ainebyona and Hellen Salam of M/S Newmark Advocates and Hadija Nabagwanya, the legal officer of the 1st Respondent. At the hearing, the $1st$ Respondent was directed to file its affidavit in reply by the $7th$ of February 2024. However, they had not done so by the time of writing this Ruling. None of the parties filed submissions.

#### Issue

Whether the Applicant should be granted leave to amend the $4.$ Plaint in Civil Suit No. 94 of 2023

#### Resolution

The principles for granting leave to amend proceedings as 5. stated in the cases of **Gaso Transport Services (Bus) Ltd V.** Obene SCCA No.4 of 1994 [1990-1994] 1 EA 88, Eastern Bakery V Castelino 1958 1 EA 461 and Mulowooza & Brothers Ltd vs Shah & Co. Ltd, SCCA No. 26 of 2010 are as follows:

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$\mathbb{R}$

- a) There is no injustice caused to the other party and if there is it can be compensated by costs. - b) Amendments are allowed by courts so that the real question in controversy between the parties is determined and justice is administered without undue regard to technicalities. - c) The amendment would not prejudice the rights of the opposite party. - d) The application should not be malafide. - e) Multiplicity of proceedings should be avoided. - A court will not allow an amendment that enables the $\mathbf{f}$ substitution of one distinct cause of action for another or changes the subject matter of the suit into one of a substantially different character. - 6. The Applicant seeks to amend the Plaint for a declaration that the $1^{st}$ Respondent fraudulently sold the suit property. In addition, the Applicant seeks to add the $2^{nd}$ to the $6^{th}$ Respondents as defendants to the main suit. The Applicant claims that the 1st Respondent fraudulently sold the mortgaged property to the $2^{nd}$ , $3^{rd}$ , and $4^{th}$ Respondents without following the correct procedure. Secondly, the 5th Respondent participated in the wrongful sale and the 6th Respondent fraudulently effected the transfer of the suit land. - 7. In the original plaint the Applicant prayed for inter alia a declaration that the loan agreement between the Applicant and the 1st Respondent was void. In this case, I find that the Applicant is not substituting the cause of action and neither is she introducing a cause of action that changes the character of the case. The Applicant does however introduce a new cause of action.

- 8. In the case of **Mulowooza& Brothers Ltd Versus N. Shah& Co. Ltd, supra** the Supreme Court held that "... moreover, learned counsel for the Respondent is right to state as he does in his submission that the Civil Procedure Rules do not bar introducing a new cause or causes of action through an amendment to a plaint." - 9. It should be noted that under Order 2 Rule $4(1)$ of the Civil Procedure Rules a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants. This is intended to promote just disposal of suits and to avoid a multiplicity of suits, see Mohan Musisi Kiwanuka Versus Asha Chad SCCA No. 14 of 2002. - 10. In the case of **Eastern Bakery Versus Castelino Sir Kenneth** O'Connor (1958) E. A 461 held that: "Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side and there is no injustice if the other side can be compensated by." - 11. In this case the amendment was sought before the hearing of the case. In the absence of evidence to the contrary I find that the amendment will not cause an injustice to the $1st$ Respondent. In conclusion, therefore, court finds that the amendment will not cause an injustice to the Respondent, it will not prejudice the Respondent and will avoid a multiplicity of suits. The Application is therefore allowed. The costs shall be in the cause.

### Dated this 7th day of May 2024

$\mathcal{A}$

Patricia Kahigi Asiimwe

Judge

Delivered on ECCMIS