Omamteker v Barigye and Another (Miscellaneous Application 1117 of 2024) [2025] UGHCCD 53 (5 May 2025)

# THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA (crvrL DrvrsroN)

# MISCELTANEOUS APPLICATION NO.1117 OF 2024 (ARtStNG OUT OF HtGH COURT CrVrL SUtT NO. 0316 OF 2022l-

ROSEMARY KIIZA OMAMTEKER APPLICANT

### VERSUS

### 1. PEACE BARIGYE

2. ATTORNEY GENERAL RESPONDENTS

### BEFORE: HON. JUSTICE SIMON PETER M. KINOBE(SC)

#### RULING

### BACKGROUND

The Applicant brought this application under Sections 98 & 100 of the Civil Procedure Act Cap. 71 and Order 6 Rules 19 and 3L of the Civil Procedure Rules S.l 7L-1, Section 33 of the Judicature Act Cap.13 for orders that;

- 1. Leave to amend the plaint in civil suit No.0316 of 2022 be granted - 2. The costs of the application be provided for.

The grounds of the application are specifically set out in the affidavit of the applicant but briefly are that; the Applicant filed Civil Suit No. 0316 of 2022 through M/s Omongole & co. Advocates and later transferred instructions to M/s Roots Advocates; that upon

perusal of the pleadings, her new lawyers discovered that Captain Darlington had been omitted as a party to the sui! that the Applicant's new lawyers thought it would be necessary to amend the plaint by adding him as a party to the suit; that it was necessary to add him as a party to the suit and further to include other material facts for purposes of properly determining the real issues in controversy among the parties; that no injustice would be occasioned upon the Respondents by the amendments sought in the application because the hearing had not yet commenced; and that it was just and equitable that this Honorable Court exercises its discretion to grant leave to amend the plaint.

ln opposition to the application, each of the Respondents filed an affidavit in reply. The affidavit sworn by Tendo Lubwama on behalf of the 1't Respondent, states briefly tha! the application was bad in law and untenable and did not disclose any grounds for the grant of leave to amend the plaint; that the L't Respondent filed a defence to the Applicant's suit wherein she pleaded that the Applicant did not have a cause of action against the l't Respondent and that the suit was frivolous vexatious and an abuse of court process; that the application was malafide as the Applicant having read the statement of defence had discovered that there was no case against the 1't Defendant and then sought to this amendment in order to introduce a new party to the suiu That the application sought by the Applicant was not based on correcting errors or defects as required by law but sought to reframe the Appllcant's claim in the main suit based on the Respondent's defences already exposed in the statement of defence; that the amendment sought would greatly alter the nature of the original claim and prejudice the L't Respondent by defeating the defence already pleaded; that the leave being sought by the applicant sought to introduce a new cause of action; that the suit being based on the tort of conversion, the Applicant was not the owner of the truck and therefore sought add the owner of the truck so as to justify a cause of action; that the L't Respondent

would be prejudiced because the amendment seeks to defeat the defence raised by the 1't Respondent; that it is in the interest of justice that the application was not granted.

The second affidavit filed by Mark Muwonge on behalf of the 2nd Respondent, similarly opposes the application as follows; that adding Captain Darlington Omamteker would have the effect of changing the cause of action in the main suit; that the application was prejudicial to the Defendants who would have to redraft their defences and seek additional evidence to defend the suit; that in the interest of justice the application be dismissed with costs.

#### REPRESENTATION

The Applicant was represented by Mr. Aryatwa Phillip while the 1't Respondent was represented by Mr. Kangye Stanley and the 2nd Respondent was not represented.

#### ISSUE FOR DETERMINATION

Whether the applicants should be allowed leave to amend the plead ings/pla int.

#### DETERMINATION

I have had the benefit of perusing Miscellaneous Application No. 1117 of 2024 which seeks to amend High Court Civil Suit No. 0316 OF 2O22. I have also had the benefit of listening to counsel on both sides and decided as hereunder.

ln determining this application I had the opportunity to peruse High Court Civil Suit No. 0316 OF 2022 Rosemary Kiiza Omamteker Vs Peace Barigye and the AG, from which Miscellaneous Application No. 1117 ol 2024 arises. The plaintiff (in HCCS 03L6 of 2O221 alleges that;-

"The plointiff's couse of oction agoinst the defendonts jointly ond severolly is for;

- o) Recovery of stolen property Conter Truck UBB B26D volued at over Ugshs. 80,000,000 or its volue which wos unlowfully converted by the defendonts through their servonts, agents ond employees. - b) Domoges for illegal conversion. - c) A permonent injunction restroining the defendonts by themselves, their servonts, legal representotives, workmen and agents or otherwise from occessing the soid property and/or removing any property from the some. - d) A declorotion thot the defendants illegally, unlowfully, moliciously, highhandedly and/or unjustifiably converted the plointiff 's property. - e) An Order for payment of speciol damoges of over Ugshs. 80,000,000 (Ugondo shillings three hundred twenty million) be the volue of the Conter Truck. - f) An Order for poyment of exemplary and generol domoges for the inconvenience, emborrossment the plointiff hos been subjected to os o result of the defendonts" unlowful conversion of the property. - g) Costs of the suit - h) Any other relief Court deems fit

The focts constituting the couse of oction orose os follows;

- o) On l6th September 2022, the 7st defendont brought policemen and other security agencies onto the plaintiff's lond for whotever reason, who in the cause of their duty, stole/converted the plointiff's property. - b) The defendants' ond their ogents stole ond/converted the some without the consent of the plointiff. - c) The plointiffs' husbond reported the matter to the police ot Entebbe Police Stotion but it wos never acted upon. - d) insteod, the defendants' threatened to orrest ond detoin the plointiff 's husband to cover up their ill motivated and illegol octions."

$\cdot$

.

ln briel this is the tort of conversion where a wrong is committed by a dealing with the goods of a person, which constitutes an unjustifiable denial of his rights in them or the assertion of rights inconsistent therewith. lt may be committed by wrongfully taking possession of goods, disposing of them, destroying them or simply refusing to give them up when demanded, for in all these cases can be traced conduct by the defendant which amounts to denial of the plaintiff's rights or the assertion of inconsistent rights.

The Court of Appeal in the case of Stondard Chortered Bonk (U) Ltd & Anor vs AG Civil Appeal No. 3 of 2003 held that to sustain a suit in conversion and detinue, there has to be a seizure of goods belonging to another person or dealing with the goods of a person so as to constitute unjustifiable denial of his/her right in them, or an assertion of rights inconsistent with the owner's rights. Such seizure should ultimately be followed by <sup>a</sup> demand by the owner and a refusal by the defendant to hand over the same.

A critical element in the tort of conversion is ownership. The plaintiff must be the owner of the property so converted.

The property, the subject of High Court Civil Suit No. 0316 OF 2022, from which Miscellaneous Application No. 1117 ol 2O24 arises, did not belong to the Plaintiff.

Miscellaneous Application No. 1117 ol 2024 is an application to amend High Court Civil Suit No. 0316 of 2022 by adding the owner of the goods so converted as a plaintiff.

For a civil suit/plaint to be amended it should have a valid cause of action. Order 7 rule 11(o) ol the Civil Procedure Bules provides for rejection of a plaint where it does not disclose a cause of action. ln the case of, Hosmani v. Nationol Bank ol lndio Ltd (1937), 4 E,A. C. A.5t it was held that "..........the provision that o ploint not disclosing a couse of oction sholl be rejected is mondotory."

lfully agree with this position

A cause of action should clearly state a legal wrong the plaintiff claims to have suffered at the hands of the defendant and the relief s/he seeks from court. The plaint may disclose a cause of action without containing all the facts, Also, the plaintiff must enjoy <sup>a</sup> right.

The case of Auto Gdrage vs Motokov (trlo.3) [1971)] EA. 514 laid down guidelines for determining a cause of action.

Given that the Applicant did not own the property, the subject of High Court Civil Suit No. 0316 OF 2022, the Applicant's cause of conversion fails. lt follows that the Miscellaneous Application No. 1117 ot 2024 seeks to amend a civil suit that is void ob initio for being devoid of a cause of action. No amendment should be allowed where it is expressly or impliedly prohibited by any law.

ln this regard, ldecline the prayers and orders sought and dismiss this application with costs.

I so order

qj... K.^"51\*

SIMON PETER M. KINOBE (SC) JUDGE

DATE: 5th May,2025