Nalunga v Munyagwa & Another (Miscellaneous Application 159 of 2024) [2024] UGHC 547 (14 June 2024)

# THE REPBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT MUKONO **MISCELLANEOUS APPLICATION NO. 159 OF 2024** (ARISING FROM CIVIL SUIT NO. 129 OF 2019)

NALUNGA IMMACULATE :::::::::::::::::::::::::::::::::::: **VERSUS**

LUGOLOBI BAYIRARI MUJAPANI ::::::::::::::::::::::::::::::::::::

#### **AND**

# 1. MUNYAGWA DANIEL

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2. BENEDITE NAMUSITWA ::::::::::::::::::::::::::::::::::::

## BEFORE HON, LADY JUSTICE FLORENCE NAKACHWA

## **RULING**

This application was brought by Notice of Motion under the $1.$ provisions of section 14 of the Judicature Act, Cap. 13, section 98 of the Civil Procedure Act, Cap. 71 and Order 1 rule 13 of the Civil Procedure Rules, S. I 71-1. The Applicant seeks for orders that she be added as a Defendant in Civil Suit No. 129 of 2019 and costs of the application be provided for.

The brief grounds of the application are contained in the Notice of $\overline{2}$ Motion and supported in detail by the Applicant's affidavit dated 18<sup>th</sup> April, 2024. The grounds are as follows that:

(a) the Applicant is a daughter of the late Kasi Festo and an elder sister to the Respondent herein:

(b) the late Kasi Festo died intestate and is survived by 3 children out of the 12 children he had and many of the late Kasi Festo's children who died left behind children of their own:

the Applicant and the other family members chose the Respondent $(c)$ to be the heir to their late father but they have never processed Letters of Administration for their late father's estate:

to the Applicant's shock and surprise, the Respondent brought a $(d)$ suit against his son, the 1<sup>st</sup> Defendant, claiming that he is the owner of the *kibanja* and that the son got a land title illegally;

as a family, they knew that the 1<sup>st</sup> Defendant was processing a land $(e)$ title from the mailo owner and they had no problem with that since theirs is a *kibanja* interest;

$(f)$ the kibanja in question has never been the property of the Respondent but part of the estate of their late father Kasi Festo; and

it is in the interest of justice that the Applicant be added as a $(q)$ Defendant in the High Court Civil Suit No.129 of 2019, because the outcome of the said suit affects her interest as a beneficiary to the estate and also affects other beneficiaries.

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$3.$ The application was opposed by the Respondent who filed his affidavit in reply on 26<sup>th</sup> April. 2024. The grounds for opposing the application are that:

(a) the Respondent does not have any cause of action against the Applicant and neither does he seek any relief from the Applicant warranting her to be joined as a Defendant in the main suit;

(b) the Respondent being the Plaintiff, has the right to sue any person against whom he seeks relief or any person who has infringed on his right and he is not in any way aggrieved by the Applicant and neither has the Applicant breached any of his rights warranting him to have a cause of action against her:

the alleged cause of action before this honourable court is for fraud $(c)$ against the Defendants whereas the Applicant seeking to be joined as a Defendant claims a beneficial interest from the estate of the late Kasi Festo making these two causes of action totally different:

the relief the Applicant is seeking for would better be sought from $(d)$ the administrators of the Estate of the late Kasi Festo of which the Applicant is not one of them;

if the Applicant has any cause of action against the Respondent, $(e)$ she has the liberty to file an independent suit against him seeking for any relief she may desire from this court;

this application has no merit and merely a wastage of court's time $(f)$ and a delaying tactic by the Applicant in conjunction with the 1<sup>st</sup>

Defendant, to defeat trial of the main suit to purposely occasion a miscarriage of justice to the Respondent; and

$(q)$ it is in the interest of justice that this application be dismissed with costs to the Respondent.

$4.$ Both counsel filed the parties' respective written submissions. When the application was called for hearing, the Applicant was represented by Counsel Asiimwe John Baruga from M/s Baruga Associated Advocates. The Respondent was represented by Counsel Halid Salim from M/s Halid, Kwerit & Co. Advocates.

$5.$ The Applicant contended that the Respondent herein filed Civil Suit No. 129 of 2019 against the Defendants, seeking for among other prayers, a declaration that he is the rightful *kibanja* holder on the suit land. However, the suit *kibanja* belongs to the estate of the late Kasi Festo in which the Applicant and others are beneficiaries and that is the reason she wants court to order that she be added as a Defendant because any order made in favour of the Respondent regarding the suit kibanja has a direct effect on her interest. The Applicant's counsel submitted that the other family members chose the Respondent as the heir but have not yet processed Letters of Administration for their late father's estate.

6. The Applicant's counsel added that the Respondent's prayer to be declared the owner of the suit *kibania* will legally affect the interest of the Applicant and other beneficiaries and it is important that she is added as

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a Defendant so that her side of the story can also be listened to in order to avoid multiplicity of suits. Counsel praved that this honourable court answers this application in the affirmative.

$7.$ In opposition, the Respondent's counsel averred that the Respondent clearly stated in his affidavit in reply that the cause of action against the Defendants in Civil Suit No. 129 of 2019 is for fraud whereas the Applicant in her application seeking to be joined as a Defendant is for a beneficial interest from the estate of the late Kasi Festo making the two causes of action totally different. Counsel referred to the case of **The** Electoral Commission v. Sebuliba Mutumba Richard & 2 Ors Court Of Appeal Misc. Application No.3 Of 2013.

8. The Respondent's counsel added that the Applicant did not breach any of the Respondent's rights, thus he has no cause of action against her. Counsel argued that rather, the Respondent's cause of action is against the $1^{st}$ and $2^{nd}$ Defendants for fraud and that the relief being sought by the Applicant would better be sought from the Administrators of the estate of the late Kasi Festo. Counsel submitted that the Applicant's prayer to be added as a Defendant in Civil Suit No. 129 of 2019 will introduce a new cause of action against the Respondent's case for fraud against the Defendants thus causing an injustice to the Respondent. The Respondent's counsel prayed that this honourable court dismisses the application with costs.

## Issue:

Whether the Applicant is a necessary party to Civil Suit No. 129 of 2019 to warrant her addition as a Defendant.

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#### **Court's consideration.**

9. Joinder of parties to pleadings is governed by Order 1 rule 10 (2) of the Civil Procedure Rules, S. I. 71-1, which 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, or whose presence before the court 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."

$10.$ The procedure for bringing such an application is provided for under Order 1 rule 13 of the Civil Procedure Rules, which states thus:

"Any application to add or strike out or substitute a plaintiff or defendant may be made to the court at any time before trial by motion or summons or at the trial of the suit in a summary manner."

Adding or striking off a party to pleadings, whether on application $11.$ of the parties or on court's own motion, is in the court's discretion which must be exercised judiciously based on sound principles. The rationale for addition of parties to any suit is premised on the need to prevent multiplicity of suits by interested parties over the same subject matter. In the case of Yahaya Kariisa v. Attorney General & Anor, S. C. C. A. No. 7 of

$6$ **1994 [1997] HCB 29**, it was held that the main purpose of joining parties is to enable the court to deal with the matter brought before it and to avoid multiplicity of pleadings.

$12.$ Where a person seeks to be joined as a party to a case, the court must be satisfied that:

- (a) such a party is one that ought to have sued or been sued but was left out: - (b) the presence of such a party is relevant for a conclusive and effectual determination of a suit: - (c) in the absence of such a party, the orders of court may not be easily implemented; and - $(d)$ a party has an interest in the subject matter of the suit to the extent that orders made by the court are likely to affect that party's interest

Order 1 rule 10 (2) of the Civil Procedure Rules is similar to the 13. English R. S. C Order 16 rule 11 under which the case of Amon v. Raphael Tuck & Sons Ltd (1956) 1 ALL E. R. 273 or (1956) 1 QB 557 was considered and in which it was held that a party may be joined in a suit, not because there is a cause of action against it, but because that party's presence is necessary in order to enable the court effectually and completely adjudicate upon and settle all the questions involved in the cause or matter. This decision was cited with approval by the Supreme Court of Uganda in the case of Departed Asians Property Custodian Board v. Jaffer Brothers Ltd, Civil Appeal No. 9 of 1998.

$14.$ In Amon v. Raphael Tuck & Sons Ltd (supra) at page 290 Devlin, J. said:

"As WYNN-PARRY J. said in **Dollfus Mieg et Compagnie S. A. v. Bank of England (1950) 2 All E. R. at p. 611:**

"It seems to me that the true test lies not so much in an analysis" of what are the constituents of the applicant's rights, but in what would be the result on the subject-matter of the action if those rights could be established."

I respectively agree with that. I think that the test is: "May the order" for which the plaintiff is seeking directly affect the intervener in the enjoyment of his legal rights?" ......... A plaintiff may, in the first instance, join as a defendant any person against whom the right to any relief is alleged to exist (Ord. 16 $r$ .4). If, after he has issued his writ, he wants to join another defendant, no doubt he will have to proceed under rule 11, but he will not have to show that the new defendant will be directly affected by an order in the action as it is then constituted; what he generally shows is that he cannot get effectually and completely the relief for which he asks unless the new defendant is joined, and that, in that sense, the new defendant is a necessary party to the action. Likewise, a defendant who seeks to join another defendant does not inevitably have to show that the new defendant will be directly affected by an order in the action as it is constituted. He may succeed if he can show that he cannot effectually set up a defence which he desires to set up unless the new defendant is joined with it, or unless the order made binds the new defendant. It is not that the construction of

the rule differs according to circumstances. The construction of the rule is, and must be the same in all circumstances; but the test that is appropriate to determine whether a party is necessary or not may vary according to the circumstances."

15. It had always been the practice in equity to join as parties not merely those who in strictness "ought to be joined", but also those whose presence was necessary to complete and effectual justice. The rationale for this practice was stated in MITFORD'S PLEADINGS IN CHANCHERY ( $5<sup>th</sup>$ Edition) (1847) at page 190 as follows:

"It is the constant aim of the court of equity to complete justice by" deciding upon and settling the rights of all persons interested in the subject of the suit, to make the performance of the order of the court perfectly safe for those who are compelled to obey it, and to prevent future litigation. For this purpose all persons materially interested in the subject ought generally to be parties to the suit, plaintiffs or defendants, however numerous they may be, so that the court may be enabled to do complete justice by deciding upon and settling the rights of all persons interested, and that the orders of the court may be safely executed by those who are compelled to obey them, and future litigation may be prevented."

I have carefully perused the plaint in Civil Suit No. 129 of 2019. $16$ Although the cause of action against the Defendants in that suit is fraud and the Plaintiff claimed that the 1<sup>st</sup> Defendant purporting to act on his behalf fraudulently obtained legal interest in the suit kibanja and got registered on the certificate of title as the legal owner of the suit land,

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the Applicant claims beneficial interest in the same land as a daughter to the late Kasi Festo.

$17.$ The Respondent who is a brother to the Applicant and the Plaintiff in Civil Suit No. 129 of 2019 averred in paragraph 5 of his affidavit in reply that the Applicant did not breach any of his rights to warrant being added as the Defendant to the suit and that he has no cause of action against her. Consequently, the Respondent cannot be forced to sue whoever he feels has not infringed any of his rights and does not desire to sue.

18. I do not agree with the Respondent's averments because any decision of the court concerning the suit land may affect the Applicant's rights. In my judgment, to avoid multiplicity of suits, the application has merit and is allowed by this honourable court so that all issues related to the suit land can be adjudicated upon in one suit. Therefore, I rule that the Applicant does qualify to be added as a Defendant to Civil Suit No. 129 of 2019. Further, I order that the Applicant should file her defence and counterclaim, if any, within 15 days of this ruling. As this matter involves close relatives and to avoid distress among family members, each party shall bear their own costs of this application. I so rule and order accordingly.

This ruling is delivered this $14 + 14$ day of $14 + 2024$ by

FLORENCE NAKACHWA **JUDGE.**

*In the presence of:*

- (1) Counsel Sseryazi Benon holding brief for Counsel Halid Salim from M/s Halid, Kwerit & Co. Advocates, for the Respondent; - (2) *Ms. Nalunga Immaculate, the Applicant;* - (3) Mr. Lugolobi Bayirari Mujapani, the Respondent; - (4) Ms. Pauline Nakavuma, the Court Clerk.

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