Nyombi Mukiibi v Musoke and 8 Others (Miscellaneous Application 125 of 2024) [2024] UGHCLD 203 (7 August 2024)

Full Case Text

# THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA [LANp prvrsloN] Mtsc. APPLICATION NO. 0125 0F 2024 lARrSING FROM C/S NO. 2081 OF 2015, FORMERLY C/S NO. 81 OF 2015 AND FORMERLY C/S NO. 198 OF 20141

NYOMBI DAVID MUKIIBI APPLICANT / PLAINTIFF

- 1. MUSOKE DONOZIO - 2. WAMALAELLYPADDY - 3. NAMATOVU MARGARET - 4. KAGUGUBEALOYSIUS - 5. I(ASOZI EDWARD - 6. JEMBAGODFREY - 7. MAWANDAJOHNMARY - 8. KANAKULYAGODFREY

# 9. NABAGEREKAJUDITH RESPONDENTS / DEFENDANTS

# BEFORE: HON. LADY JUSTICE P. BASAZA - WASSWA

# RULING

#### Representation:

Mr. Walubiri Peter and [vlr. Kirya Emmanuel for the Applicant / Plaintiff

Mr. Kazibwe Magellan for the Respondents / Defendants.

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### lntroduction

- t1l This is the full Ruling on an application filed on January 18, 2024 by the Applicant: Mr. Nyombi. I delivered a short form of this Ruling on May 27 ' 2024 and promised to give my reasons in a full Ruling, that I now render. - t2) Mr. Nyombi's application was brought under section 98 of the Civil Procedure Actl (CPA), and Order 44 Rule 1 (2), (3) & (4) and Order 51 Rules 1, 2 & 3 of the Civil Procedure pr;652 (CPR). He sought for the following Orders; - a) That time be extended within which to appeal against part of the Ruling and Orders of this Court rendered on August 16, 2023. - b) That Mr. Nyombi be granted leave to Appeal against part of the Ruling and Orders of this Court rendered on August 16,2023. - c) That the costs of the application be in the cause. - t3l The Court's Ruling and Orders rendered on August 16.2023 was on an oral application by Mr. Walubiri to re-amend Mr. Nyombi's plaint to add six (6) more Defendants to the suit (hereinafter referred to as: 'the August Ruling').

#### The Au ust Rulin

l4l ln the August Ruling, Court allowed the said oral application and gave Mr. Nyombi leave to re-amend his plaint within fifteen (15) days. He was however condemned in costs for all the work done prior to the date of the August Ruling, including aftendances, papenrork, et cotera, \*ve only for the instruction fees.

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ICap 7l (Now Cap.282) rs.t 7l-l

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- t51 As the basis for condemning Mr. Nyombi in costs, Court took into account the following considerations: - i) That prior to the application, a large amount of work had thus far been done by both the court and Counsel on either side. - ii) That a re-amendment of the Plaint to add another batch of fresh parties implied; that all the proceedings thus far made were wasted and rendered ineffective, yet pleadings had been closed, all witness statements flled, and the scheduling had been taken. - iii) That the basis for the re-amendment, as stated by Mr. Walubiri, was the information that Mr. Nyombi and his Counsel had obtained from the searches at the land registry and a survey carried out on the suit land. As it were, both exercises were carried out only after the order by Court in its previous Ruling of October 13,2022. Had Mr. Nyombi and his Counsel done their due diligence, and taken the appropriate steps in ample time, they would have made the alleged discoveries even before they filed the Head suit, or at least before the first amendment of [t/r. Nyombi's plaint in 2017. This was not the case. They waited for court to order them to do their homework on their own case, and as a result, Courts time and the time of either Counsel and party to the suit, was wasted.

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Background:

- t61 The Head su it was initially filed about ten (1 0) years ago on April 17 , 2014 by Mr. Nyombi against a one Rosemary Ndagire Bingwankoto (deceased3). ln his suit, he sought for; interatiaan orderthatthe Registrar of titles transfers land comprised in Busiro Block 369 Plot 25 at Bunkabira in Wakiso District ('the suit land'), into his names, allegedly as purchaser thereof. He also sought for a permanent injunction restraining the said Ms. Bingwankoto, her agents, servants, employees, assignees or any other persons claiming under her, from using, dealing and or trespassing on the suit land - t7l ln her written statement of Defence dated May 27,2014 Ms. Bingwankoto denied selling the suit land to Mr. Nyombi, save for only two (2) acres. She contended that Mr. Nyombi forcefully grabbed the title to the suit land but that it had never been her intention to give it to him. That he was one of several people that claimed an interest therein - t8l Subsequently on November 11, 2016 by chamber summons vide lr4isc Application No. 216 of 2016, Mr. Nyombi applied for leave to amend his plaint to add nine (9) Defendants to the suit. His application was premised on the alleged ground that tvls. Bingwankoto had subdivided the suit land (Plot 25) into several plots and had alienated the same to the said nine persons. Ms. Bingwankoto consented to the application and ftrlr. Nyombi amended his Plaint that he filed on January 31 , 2017 .

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&#x27; l his Dclcndant passcd away during the pcndcnc) o1'the suil

- t9] The Head suit was then scheduled, and hearing commenced before Justice Lwanga Damalie, and later before Justice Nyanzi Yasin. Upon my assumption of the case, a pre-trial scheduling was re{aken on February 21 , 2022 and fresh hearing dates were designated and orders and directions were given. - [10] Before the hearing continued, Mr. Walubiri made the said oral application on August 16, 2023 seeking to re-amend the plaint. This time to add another batch of six (6) new parties to the head suit: to wit: to add Mr. Nsereko Mike, Mr. Muwanga Joshua, Ms. Nabadda Juliet, Dr. Kza Haniel, Mr. Mutebi James and the Commissioner Land Registration. - [1 1] The grounds preferred for the proposed amendment were that upon obtaining documents from the titles office, and from the survey report pursuant to the Orders of Court, Mr. Nyombi and his Counsel made a number of discoveries that made it clear to them that there are persons on the suit land who are not parties to the suit. That it was necessary to amend the Plaint or file a fresh suit in the alternative. - [12] ln answer, Mr. Kazibwe vehemently opposed the said oral application. He argued that had Mr. Walubiri conducted thorough investigations before filing the head suit more than eight (8) years ago, he would have known the Defendants he wanted to sue. That the existing Defendants had invested a lot of time and money in preparing themselves to defend the suit. He prayed that the amendment be disallowed.

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[13] The August Ruling was consequently rendered, from which the present application arose. Hence this Ruling

## The Applicant's grounds for the present application

- [14] The gist of lvlr. Nyombi's present application and supporting affidavit were; - i) That arising out of the August Ruling, Counsel for the Respondents filed a bill of costs vide Taxation Application No. 0792 ol 2023 on September 29, )n).7 - ii) That during the taxation of T. A No. 0792 ol 2023, the learned Assistant Registrar: HW Okumu Jude Muwone sought clarification from the trial Judge on the costs to be taxed. - iii) That in her internal memo dated December 13,2023, the trial Judge, clarified that the costs awarded included all costs prior to the date of the August Ruling, except instruction fees - iv) That the Applicant only learnt of the clarification on January 16,2024 when his Counsel appeared for the Taxation hearing, and is aggrieved by the Ruling as clarified - v) That the Applicant is advised by his Counsel that costs follow the event and that costs of a suit cannot be awarded before the suit is heard and concluded, and that the order to pay all costs before the hearing date is a direct affront on his constitutjonal right to a fair hearing

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Page6ofll ## The Respondents' answer:

- [15] By their affidavit in reply, the Respondents opposed the application, and answered, inter alla. - i) That their Bill of costs covers their lawyer's services and the Respondent's costs and expenses incurred from the date they were sued up to the date of the August Ruling, in line wath the Court's Orders. - ii) That on the advice of their Counsel, their Bill of costs was drawn and filed in compliance with the learned Judge's Order and in line with the relevant Advocates remuneration and taxation of costs Regulations. - iii) That on the further advice of their Counsel, they state that the learned trial Judge had unfettered discretion to award costs to them after allowing the Applicant's Application for amendment of the plaint the second trme, after the completion of the pre{rial processes. - iv) That the application does not disclose the conditions for the grant of the orders sought, and has no merit at all.

#### The Applicant's Rejornder:

- t16l Mr. Nyombi re-joined: - i) That the affidavit in reply is full of falsehoods and is misconceived. - ii) That he is aggrieved by the award of cosls for the entire suit, in a matter that has not been concluded - iii) That the learned trial Judge erred in law in ordering him to pay costs of an unheard suit.

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iv) That his intended appeal involves matters of human rights as well as of a suit prror to the conclusion of a case. serious questions of law in regard to the powers of court in awarding costs

### lssue for determination:

- l17l Whether the Applicant has shown sufficient reason to warrant that he be granted leave to appeal, and an extension of time within which to appeal? Submissions Counsel - I duly considered. For brevity, I will not capture all their arguments here in this Ruling, but may only capture what is, and where it may be necessary t18l Learned Counsel for each party filed their respective written submissions, that

#### Analysis by Court:

- t19l I dealt with this application in two (2) prongs. The first prong was on the question; 'whether to grant leave to appeal'? and the second prong was on the question; 'whether to grant an extension of time within which to apFal'? - 120) lt is a well-established principle that 'leave to appeal from an order in civil proceedings will normally be granted where gtma hcie, it appears that there are grounds of appeal which merit serious judicial consideration, but where the order ftom which it is sought to appeal was made in the exercise of a judicial discretion, a rather stronger case will have to be made out'. (Underlining added for emphasis) For this principle, see the decision of Spry, V. - P., in Sango

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# Bay Estates Ltd and Ors. v. Dresdner Bank A. G4. Also see Samwiri Massa v. Rose Achan5.

- Guided by this principle, the task of this court was to assess: 'whether, prima $[21]$ *facie*; there are any grounds of appeal that merit serious judicial consideration by the Court of Appeal'? - $[22]$ The intended appeal against the August Ruling is an appeal against the costs therein awarded. A discretionary award. Owing to its discretionary nature6, an award for costs attracts the need to make out a stronger case for leave to appeal. - The intended ground by the Applicant is; 'that on the advice of his Counsel, [23] costs follow the event and that costs of a suit cannot be awarded before the suit is heard and concluded. That the order to pay all costs before the hearing date is a direct affront on his constitutional right to a fair hearing'. - With great respect to the Applicant and his Counsel, I found that the said advice $[24]$ lacked the backing of any law or authority. The provisions of **sec. 27 of the** Civil Procedure Act (supra) are clear and confer wide discretionary powers on a court or Judge. The section provides, *inter alia* that **the costs of and incident** to all suits shall be at the discretion of the court or judge, and that the court or judge shall have full power to determine by whom, and out of what property and to what extent those costs are to be paid, and to give all necessary directions

Masamburning 7/8

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[1971] E. A pg. 17 at pg.

[1978] HCB at page 297

&lt;sup>6 See sec. 27 of the Civil Procedure Act Cap. 71 (now Cap. 282).

for the purpose aforesaid. That the costs of any action, cause, or other matter or issue shall follow the event, unless the court or Judge shall for good reason otherwise order.

- 125l ln my view, the phrase in sec. 27 that 'costs shall follow the event', is not limited to the conclusion of the Head suit as wrongly suggested by the Applicant. Rather, it applies also to the conclusion of any interlocutory cause matter or issue. The phrase means that costs shall be paid to the successful party who can only be deprived of costs when it is shown that his / her conduct, either prior to or during the course of the suit, matter or issue' led to litigation or proceedings which, but for his own conduct, might have been avoided or averted. See Kiska Ltd v De Angelisz - the Uganda 126) That said, it follows that upon an interlocutory application to amend pleadings, it is open to a Court or Judge, in the exercise of their discretionary power to award 'costs thrown away'. To wit; to order a party to pay 'wasted costs' of either side for their conduct that has resulted in proceedings or any part thereof that have become ineffective. For the concept of 'cos{s thrown away', refer to Civil Justice Bench Book8. - 1271 By reason of the above, I found that Mr. Nyombi's application failed to make out arguable grounds of appeal that merit serious Judicial consideration, in light of the context in which the Court exercised its discretion in the August Ruling.

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3l" Ed. 2016 - t-l)C Publishcrs al pg. 22'l

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7 It9691 ll. A pagc 8

l28l The second prong on the question; 'whether to grant an extension of time within which to appeal', was rendered moot after the prayer for leave to appeal was denied

# Decision of Court

t29l ln the result, the application failed in its entirety. Leave to appeal was disallowed. No order for costs was made. The Head suit was accordingly setdown for a pre-trial conference scheduling on October 24, 2024 at 10: am with Directions to the parties to file a Joint Scheduling Memorandum and a Joint Trial Bundle seven (7) days before that date.

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P. BASATA. WASSWA JUDGE

August 07, 2024

Ruling delivered via email to the parties, and uploaded on the Judiciary ECCMIS Portal.

Email to: kbwadvocates@gmail.com. for the Applicant, and to lawyerkazibwe@gmail.com for the Respondents

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