Nanziri & 2 Others v Nakulule (Miscellaneous Application 365 of 2024) [2024] UGCommC 355 (24 September 2024)

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [COMMERCIAL DIVISION] **MISCELLANEOUS APPLICATION NO. 0365 OF 2024** (ARISING FROM CIVIL SUIT NO. 0442 OF 2020)

# 1. ZAITUNI NANZIRI

# 2. KATO TEBAZAALWA

3. WAISWA SHAFIQ::::::::::::::::::::::::::::::::::::

### **VERSUS**

SHAMIRA NAKULULE:::::::::::::::::::::::::::::::::: 10

# **BEFORE: HON. LADY JUSTICE ANNA B. MUGENYI**

#### **RULING**

This suit was brought by way of chamber summons under sections 98 & 100 of the Civil Procedure Act (CPA), section 33 of the Judicature Act, and order 6 rules 19 & 31 of the Civil Procedure Rules (CPR) for orders that leave be granted for the applicants to amend their plaint and pretrial documents on record in civil suit no. 0442 of 2020 and the costs of this suit be provided for.

This application was supported by the affidavit of Wasswa Shafiq, the third applicant, and opposed by the affidavit in reply of Shamira Nakulule the respondent.

The facts giving rise to this application are that the applicants instituted the above 20 suit against the respondent and Standard Chartered Bank at the Land Division of the High Court and the same was transferred to the Commercial Division of the said Court. All the parties to the suit filed their pleadings and all pretrial documents. On the 13/12/2023, the applicants entered into a partial consent with Standard Chartered Bank and consequently withdrew the suit against the bank and maintained their claim against the respondent. The applicants now seek to amend their plaint and pretrial documents.

The applicants contend that since the claim against Standard Chartered Bank has been withdrawn, there is a need to amend the plaint and pretrial documents to fit the circumstance leaving only facts against the respondent. The applicants further

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contend that pertinent changes concerning the case can only be handled through an amendment of the plaint and other documents since such amendment will not prejudice the respondent in any way.

The respondent contends that this application is misconceived, incompetent, barred by the law of limitation, and an abuse of court process. The respondent avers that this amendment intends to prejudice her due to their broken family relationship. She averred that what the applicants wanted was a release of the certificate of title which was done by Standard Chartered Bank following the consent settlement and as a result, there is no case against her. The respondent further averred that for the applicants to proceed with only fraud accusations against her without the bank is prejudicial, unjust, and malafide since fraud is imputed on the transferee who is the mortgagee(bank) and fraud cannot be proved without the transferee.

The respondent further contended that the intended amendment arises from a loan and mortgage agreement and is a contract matter that was filed in court in the 2017 when the cause of action arose and now seven years later is barred by statute under the law and as such the applicants intended plaint discloses no cause of action on account of being barred by statute.

## **REPRESENTATION**

The applicants were represented by M/s Nabukenya, Mulalira & Co Advocates whereas the respondent was represented by M/s Sebanja & Co Advocates.

# **RULING**

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I have carefully addressed my mind to the pleadings and the submissions of counsel for the parties in this matter. The main issue for determination is whether the applicants should be granted leave to amend their plaint in civil suit no. 0442 of 2020.

### **Section 100 of the CPA** provides that:

"The court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding."

Order 6 Rule 19 of the CPR also provides that:

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"The 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".

The above provisions give the Court powers to grant applications for amendment of pleadings where it is just (in the interest of justice) to do so and where such an amendment will help in determining the real questions in controversy between the parties. Amendment of pleadings helps in preventing multiplicity of suits as it ensures that the real questions in controversy between the parties will be determined.

In the case of Eastern Bakery v Castelino [1958] EA 462 Sir Kenneth O'Connor stated 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 costs. The court will not refuse to allow an amendment simply because it introduces a new case .... but there is no power to enable one distinct cause of action to be substituted for another ... the court will refuse leave to amend where the amendment would change the action into one of a substantially different character... or where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment e.g. by depriving him of a defence of limitation".

Further in the case of Muloowoza & Bros v N. Shah & Co Ltd, SCCA No 26/2010, Justice Tumwesigye stated that:

"It is, therefore, right to unite in the same suit several causes of action and courts should not discourage it even if it is to be done through an amendment to pleadings.

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 in accordance with Article 126(2) (e) of the Constitution. Therefore, if a plaintiff applies for leave to amend his pleadings, courts should in the interest of promoting justice, freely allow him to do so unless this would cause an injustice to the opposite party which cannot be compensated for by an award of costs, or unless the amendment would introduce a distinct cause of action in place of the original cause.

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From the foregoing, it can be seen that provided the amendment will enable the real questions in controversy to be dealt with and will not cause any injustice to the opposite party, it should be freely allowed.

In the instant case, the hearing of the main suit had not yet commenced though the parties had filed all their pretrial documents. It is not disputed by the parties that the applicant entered into a partial consent with the second defendant and as a result, withdrew the suit against them.

The applicants contend that they would like to amend their plaint so that the same only reflects their claim against the respondent. On perusal of the original plaint in civil suit no. 0442 of 2020 vis a vis the draft amended plaint, there is no distinct change save for the fact that all the claims and facts relating to the 2<sup>nd</sup> defendant (Standard Chartered Bank) were removed and those of the respondent were maintained save for the prayer for an order that the certificate of title should be returned to the applicants which was removed.

The other declarations sought against the respondent in both plaints attached are the same and include:

- a. A declaration that the defendant acted fraudulently, illegally & unlawfully when she mortgaged the suit property comprised in LRV 1657 Folio 3 at Bunamwaya in Wakiso. - b. Permanent injunction restraining the defendant from trespassing, transacting, or interfering with the plaintiff's ownership & possession of the suit land - c. Punitive/exemplary damages - d. General damages - e. Interest

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The cause of action giving rise to the suit is maintained in both the original and draft amended plaint and the particulars of fraud against the respondent are maintained in both the original plaint and the draft amended plaint.

From the foregoing, it can be seen that this amendment intends to narrow down the issues for the Court's consideration and limit them to the applicant and respondent since the suit against the bank was withdrawn.

The law requires that all necessary amendments shall be made for the purpose of determining the real question and in the instant matter no new claim has been

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introduced or new facts introduced by the draft amended plaint to enable the Court to determine the major issues in controversy between the parties.

The main issues in controversy between the parties are already filed in the original plaint before this Court. Additionally, the consent entered between the applicant and 130 Standard Chartered Bank is on the Court record and this Court is therefore aware that the claim against the 2<sup>nd</sup> defendant in the main suit was withdrawn. It is the considered opinion of this Court that granting this application will not only cause unnecessary delays in the determination of the main suit but will also work against the requirement that such amendments should only be allowed to prevent a multiplicity of suits. In any case, the parties will be able to sieve out the relevant issues for determination by Court during the scheduling conference taking into account the aforementioned consent.

In light of the above reasons, I, therefore, deny this application for leave to amend the plaint in civil suit no. 0442 of 2020.

Costs of this application shall abide the cause.

Having held as I above, I do not find it necessary to address the issue of limitation regarding the proposed amended suit raised by counsel for the respondent which, in any case, has not been granted. Linn to took m

HON. LADY JUSTICE ANNA B. MUGENYI

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