Nyakana Birungi v Birungi and Another (Miscellaneous Application 82 of 2024) [2025] UGHC 96 (17 January 2025)

Full Case Text

#### THE REPUBLIC OF UGANDA

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

MISCELLENOUS APPLICATION NO. 0082 OF 2024 (Arising out from Masindi Civil Suit No. 0069 of 2023)

# NYAKANA ROSE BIRUNGI:::::::::::::::::::::::::::::::::::: VERSUS

#### 1. BIRUNGI ISABELA

# 2. BYARUGABA HANNINGTON:::::::::::::::::::::::::::::::::::

#### BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

# **RULING**

- In this Chamber Summons application brought under Ss 96, 98 & $[1]$ 100 CPA, S. 33 of the Judicature Act Cap.13 and o. 51 r.6 & O.6 rr. 19 & 31 CPR, the Applicant is seeking the following orders: - That the Applicant/Plaintiff be granted leave to amend her $(a)$ reply to the $1^{st}$ , $2^{nd}$ & $3^{rd}$ Defendants' Written Statement of Defence (W. S. D) and introduce her reply to the $2^{nd}$ & $3^{rd}$ Defendants' counterclaim. - That time be enlarged for the Applicant to file and serve her $(b)$ reply to the $2^{nd}$ & $3^{rd}$ Defendants' counterclaim. - That costs of this application be provided for. $(c)$ - The grounds of this application are set out in the affidavit of $[2]$ **Nyakana Rose Birungi, the Applicant and briefly they are:** - On 8/9/2023, the Respondents/Defendants filed their WSD $(a)$ to the main suit (C. S. No. $69/2023$ ) with a counterclaim. - That in the counterclaim, the Respondents seek to evict the $(b)$ Applicant/Plaintiff from the suit land yet their counterclaim is barred by the law of limitation. - That on 27/9/2023, the Applicant filed a reply to the $1^{st}$ , $2^{nd}$ $(c)$ & 3rd Defendants/Respondents' WSD. - That in the said reply, the Applicant was supposed to reply $(d)$ to the $2^{nd}$ & $3^{rd}$ Defendants/Respondents' counterclaim but did not do so because at that time he had not succeeded in

gathering evidence to support his reply to the said counterclaim.

- That the Applicant has since, through vigorous search $(e)$ retrieved evidence to support her reply to the $2^{nd}$ & $3^{rd}$ Defendants/Respondents' counterclaim and request for an opportunity to do so through this amendment to reply the 1st. 2nd & 3rd Defendants' W. S. D. - That the Applicant now seeks this court to grant him leave $(f)$ and extension of time to amend his reply to the $1^{st}$ , $2^{nd}$ & $3^{rd}$ Defendants/Respondents' W. S. D and introduce in reply to the $2^{nd}$ & $3^{rd}$ Defendants/Respondents' counterclaim in light of evidence available. - $3rd$ $2^{\rm nd}\,$ the $\&$ reply to proposed That the $(g)$ Defendants/Respondents' counterclaim has a sound and defence of limitation, it is important to both parties, shall avoid multiplicity of suits and shall cause no injustice to the Respondents since all that questions/controversy is dispute will be better articulated and completely resolved to their logical conclusion in the amended reply since the hearing of the main suit has not commenced. - In opposition to the application, the $2^{nd}$ Applicant Dr. Byarugaba $[3]$ Hannington deposed an affidavit in reply which briefly is as follows: - That the Applicant has not adduced any evidence to prove $(a)$ that she was prevented to file a defence to the counterclaim by sufficient cause. - That by allowing the Applicant to amend her reply to the $(b)$ W. S. D and add a reply to the counterclaim, would amount to allowing the Applicant to bring a new cause of action not pleaded in the earlier pleadings. - That the allegation of the Applicant that the counterclaim is $(c)$ time barred is misconceived as the evidence paraded by the Applicant is in respect of structures on her land adjacent to the suit land. - That the reasons advanced by the Applicant for her failure to $(d)$ file a reply to the counterclaim are flimsy since the gathering

of evidence is not new information which was not available to the Applicant at the time of filing the reply to the W. S. D.

- That the Applicant has inordinately delayed filing the $(e)$ application and allowing her to amend her reply to the W. S. D. would tantamount to perpetuating illegality and will cause injustice to the Respondents. - That it is fair and just that this application be dismissed with $(f)$ costs and an interlocutory judgment be entered and the counterclaim proceeds exparte.

# **Issues for determination:**

- As per the pleadings on record, the issue for determination of $[4]$ this application are as follows: - Whether the Applicant should be granted leave to amend her 1. reply to the W. S. D. of the Respondents. - Whether time should be enlarged for the Applicant to file $2.$ and/serve her reply to the Respondents' counterclaim.

# Issue No.1: Whether the Applicant should be granted leave to amend her reply to the W. S. D. of the Respondents:

- Counsel for the Applicant Mr. Turyatunga Steven, submitted that $[5]$ the Applicant through vigorous search retrieved evidence to support her reply to the $2^{nd}$ & $3^{rd}$ Defendants/Respondents' counterclaim and all the relevant evidence is attached to the draft reply to the Respondents' counterclaim thus, she has proved sufficient cause. Further, that since the Applicant is seeking to put up a defence to a suit/counterclaim, it cannot be taken that she is seeking to introduce a cause of action. - Relying on Ss. 98 & 100 CPA and O.6 r.19 CPR, parties are at $[6]$ liberty to amend their pleadings at any stage whenever it is appropriate to do so in order to bring into focus the real issues in controversy for determination by the court. - Further, that no injustice will be occasioned on the Respondents $[7]$ if this application is granted given the fact that the hearing of the

main suit has not commenced thus, the intended amendment does not prejudice the Respondents' case in any way, Eastern Bakery Vs Castelino [1958] E. A 461.

## **Preliminary objection:**

- Counsel for the Applicant raised an objection to the effect that $[8]$ the 1st Respondent, Birungi Isabella failed, ignored and/or refused to file an affidavit in reply to the application and that even the 2nd Respondent, Byarugaba Hannington in his affidavit in support of the application, he never stated that he was swearing the affidavit in reply on behalf of the 1st Respondent. He prayed that court holds the $1^{st}$ Respondent in default for failure to comply with O.8 r. 1(2) CPR. - In this application, I find that the $2^{nd}$ Respondent deposed an $[9]$ affidavit in support of the application. In the affidavit, nowhere did he depone that he did so on behalf of the 1st Respondent and there is no authorisation from the $1st$ Respondent to swear the affidavit in reply on her behalf. The 2nd Respondent did not swear the affidavit in support of the application in a representative capacity. - [10] As rightly submitted by Counsel for the Applicant in rejoinder, as illustrated under S.1 of the Evidence Act,

"The Act shall apply to all judicial proceedings or before the Supreme Court, the Court of Appeal, the High Court and all Courts established under the Magistrate's Court, but not to affidavits presented to any court or officer nor to proceedings before an arbitrator".

As per the above provision of the Evidence Act, the evidence of one person does not apply to affidavits used in courts of law and thus each person sued in an application ought to have a reply to the application and the only exception is when one gives express authorisation.

[11] In the instant case, the present chamber summons indicated or named 2 Respondents being sued in their respective personal capacities and only the $2^{nd}$ Respondent deposed and filed an affidavit in reply in his individual capacity. the $1^{\rm\,st}$ $\mathrm{B}\mathrm{v}$ Respondent's failure to file an affidavit in reply to the application, it cannot be assumed that she intended to oppose the application or be taken, as Counsel for the Respondent submitted, that the affidavit of the $1^{st}$ Respondent may have been for both Respondents. Each evidence enough deemed Respondent is required to show his/her opposition to the application or authorise one to do it.

- [12] In the premises, I find that the $1^{st}$ Respondent's failure to file an affidavit in reply to the application amounted to not opposing the application and therefore the sought orders are entered in default against the $1^{st}$ Respondent for failure to comply with **O.8 r.1(2)** CPR. - [13] As regards the merits of the application, Counsel for the **Baryabanza** submitted that $\overline{a}$ Respondent Mr. Aaron counterclaim is a suit in its own standing and therefore, a party who fails to file a reply to the counterclaim in time ought to apply for leave to file a reply to the counterclaim out of time and not to apply for leave to amend the reply to the W. S. D as was done by the Applicant in this case. - [14] In the instant case however, I find that in the present application, the Applicant not only sought for leave to amend her reply to the reply the counterclaim $2nd$ $3rd$ $\mathcal{R}$ $of$ the $W. S. D.$ and Defendants/Respondents but she also sought for enlargement of time to file and serve her reply to the $2^{nd}$ & $3^{rd}$ Defendants' In the premises, I find that the Applicant has counterclaim. applied for leave to file a reply to the counterclaim out of time. - [15] Counsel for the Respondent submitted further that the Applicant alleges that he never filed a reply to the counterclaim within time because she had not successfully gathered evidence to support the reply to the counterclaim. He argued that such reasoning is flimsy because the evidence she alleges she had not successfully gathered was not new facts since the evidence was always

available to her and within her knowledge, for example the receipts for rent and electricity bills and pictures were not new information to the Applicant, so she should have filed her reply to the counterclaim immediately upon being served with the same.

- [16] Counsel for the Applicant submitted in rejoinder that the Applicant in her affidavit in rejoinder, para 11 deposed that she had to labour in tracing the said documents from all her 3 residencies namely; Hoima-Butanjwa zone, Hoima East Division, Hoima City; Kiwatule, Nakawa Division, Kampala and Butiaba Road, Hoima City which was not a simple task hence it took her some good time to trace them. Counsel concluded that under these circumstances, under S.33 of the Judicature Act, this court has wide powers to exercise its discretion and grant remedies to obtain justice so that all matters in controversy between the parties may be completely and finally determined and avoid multiplicity of suits. - [17] I have looked at the evidence the Applicant intends to rely on in her reply to the counterclaim, I note that for example, the rent receipts are of 1995-2002 while the electricity bills are of 2009. A litigant of the Applicant's type who has many residences as indicated in the affidavit in rejoinder, it is plausible that by the time she was served with the counterclaim, she was not with the said documents. It had to take her time to retrieve them. Upon securing the documents, she now seeks leave to amend her reply to the W. S. D. and introduce them in her reply to the counterclaim of the $2^{nd}$ & $3^{rd}$ Defendants/Respondents.

## [18] Under **O.6 r.9 CPR**,

"The court may at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such manner and as 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 documents/receipts in question are intended to support the Applicants defence that the counterclaim which is a suit on its own is barred by limitation. This defence of limitation sought in the amended reply does not amount to a new cause of action. It is a defence that the Applicant is entitled to raise for it is not prohibited by any law.

As was held in Eastern Bakery Vs Castelino (supra), amendments sought before the hearing of the suit should be freely allowed if no injustice is occasioned to either party.

[19] In the premises, this court exercises its discretionary powers to grant the Applicant leave to amend her reply to the W. S. D. so that all matters in controversy between the parties may be completely and finally determined and avoid multiplicity of suits. The amendment shall not work any injustice to the Respondents since they shall have the opportunity to defend themselves on the issue of whether or not the counterclaim is barred by limitation.

Whether time should be enlarged for the Issues No.2: Applicant to amend her reply and serve her $2^{\rm nd}\,$ Defendants/ $\mathcal{R}$ $3rd$ reply to the Respondents' W. S. D.

- [20] Counsel for the Respondents submitted that for the Applicant to be granted leave to extend time within which to file a reply to the counterclaim, he must prove to the satisfaction of the court that she was prevented to file a reply to the counterclaim in time by That in the instant case, the claim by the sufficient cause. Applicant that she had not successfully fathered evidence to support her reply to the counterclaim is a lie because the alleged evidence is not new evidence which would take her all this time to access. - [21] As I have already observed, the evidence that the Applicant intends to introduce in her reply to the counterclaim is for purposes of supporting her claim that the counterclaim is barred by limitation. - [22] A defence of limitation is a legal defence that prevents a claim from being filed after a certain amount of time has passed. This defence is also known as a statute of limitations or prescriptive

period, Black's Law Dictionary 11th edition. See also Odyek Alex & Anor Vs Gena Yokonani & 4 Ors H. C. C. A No. 09/2017. $\mathbf{A}$ failure to bring a claim in time will give the defendant a complete defence to the claim

[23] In Edward Owor & Anor Vs Ochwo Mello & Anor H. C. C. A. of 173 of 2015, cited DAPCB Vs Dr. J. M. Musambisi C. A. C. A. No. 04 of **2004** where the court of appeal emphasised that;

> "this court and the supreme court have held in many cases that enforcement of provisions of statute is mandatory.

- [24] Since court cannot move itself unless the Defendant raises a defence and the $2^{nd}$ & $3^{rd}$ Respondents in this case filed a counterclaim which the Applicant/counter Defendant seek to raise a defence of limitation, to deny her such an opportunity would amount to denying her a right to a fair hearing. A suit and or counterclaim that is barred by statute is illegal. It follows therefore that to deny the Applicant in this case extension of time to file a reply introducing a defence that the counterclaim against her is barred by limitation shall amount to perpetuating an illegality which defeats the ends of justice. - [25] In the premises, I find that it is just and equitable that this court exercises its discretion and extends time for the Applicant to file $3rd$ $2nd$ the and the reply to $\overline{a}$ reply and serve Defendants/Respondents' counterclaim. - [26] In conclusion, this court grants the application. The Applicant is granted leave to amend the W. S. D. and introduce her reply to the $2^{nd}$ & $3^{rd}$ Defendants/Respondents' counterclaim and time is extended for her to file and serve her reply to the $2^{\rm nd}$ & $3^{\rm rd}$ Defendants/Respondents' counterclaim within 14 days from the date of this ruling. - [27] Each party is to meet his costs of the application. Order accordingly.

Dated at Hoima this $17th$ day of January, 2025.

**Byaruhanga Jesse Rugyema IUDGE**