Opolot v Kumi University and 4 Others (Miscellaneous Application 143 of 2023) [2024] UGHC 820 (30 August 2024)

Full Case Text

The Republic of Uganda In The High Court of Uganda Holden at Soroti Misc. Application No. 143 of 2023 (Arising from Civil Suit No. 16 of 2023)

Opolot Patrick (Administrator of The Estate of the Late Agolor Richard) :::::::::::::::::::::::::::::::::::: 10

#### Versus

1. Kumi University

2. Oenen Simon Alias Juma 15

3. Opolot Robert

4. Atekit Christine

5. Akomo Robert T/A Zion Guest House

#### 20

# Before: Hon. Justice Dr Henry Peter Adonyo

**Respondents**

## Ruling

### 1. Introduction

This application was brought by Chamber Summons under Section 98 of the Civil Procedure Act, Cap 71 now Cap 282, and Order 6 Rules 19 and 31 of the Civil Procedure Rules for orders that.

- a) Leave be granted to allow the applicant to amend his plaint to include a prayer for cancellation of the Certificate of Title to the 1st Defendant in Civil Suit No. 16 of 2023. - b) Leave be granted to allow the applicant to amend his plaint to add Kumi District Land Board, The Commissioner for Land Registration and Oenen Anthony as defendants in Civil Suit No. 16 of 2023.

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# 2. Grounds of the application:

The grounds anchoring the application are set out therein and expounded in the supporting affidavit deposed by the applicant, and in brief, they are that.

- a) The applicant sued the respondents in Civil Suit No. 16 of 2023 jointly and severally for trespass, fraud and recovery of the suit land measuring approximately 52 acres located in Kees village, Koidike Ward, Nyero Town Council in Kumi District. - b) The 1st respondent in Misc. Application No. 92 of 2023 the averred that it had a certificate of title on part of the suit land Vide LRV 3285 Folio 20 Plot 32 & 33 Block 4 Land at Nyero. The applicant's lawyers conducted a search at the registry and a search report indicated that it is indeed true that the 1st respondent is the registered proprietor on land comprised in LRV 3285 Folio 20 Plot 32 & 33 Block 4 Land at Nyero. Annexure "A" & "B" - Copy of the consent in Misc. Application No. 92 of 2023 and A Photostat copy of the search report. - c) The 1st respondent in its written statement of defence indicated that it has a certificate of title on part of the suit land. That at the time of filing Civil Suit No. 16 of 2023 the applicant was not aware of the 1st respondent's certificate of title. Annexure "C" - Photostat copy of the said Certificate of Title. - 25

d) The $2^{nd}$ & $3^{rd}$ respondents in their written statement of defence allege that it is their father called Oenen Anthony who authorized them to occupy part of the suit land that I sued them over.

e) It is necessary in the interest of justice that the applicant be granted leave to amend his plaint to include prayer for cancellation of the Certificate of Title to the 1st Defendant in Civil Suit No. 16 of 2023 and to add Kumi District Land Board, The Commissioner for Land Registration and Oenen

$\mathsf{S}$

Anthony as defendants to determine the real questions in issue between the parties.

3. Grounds in opposition to the application:

The application was opposed by the 1st respondent, in which the 1st respondent through its officer Oina Maxwell swore an affidavit in reply, setting out the grounds of opposition, which are briefly that.

- a) The 1st respondent has at all times been the registered proprietor of land comprised in LRV 3285 Folio 20 Plot 32 and 33 Block 4 Land at Nyero, which forms part of the suit land. Had the applicant and his advocates carried out proper due diligence before drafting the plaint and filing Civil Suit No. 16 of 2023, they would have discovered this fact. - b) The 1st respondent was registered as proprietor of the said land on the 30th day of September 2004, which is 18 years before the applicant instituted Civil Suit No. 16 of 2023. - c) The applicant intends to fundamentally change the cause of action and facts leading to it. In the original plaint the applicant maintains his claim on the premise that the 1st respondent is a foreign entity and cannot acquire interest in customary land and yet in the proposed amendment the applicant maintains his claim on the premise that the 1st respondent failed to conduct due diligence before acquiring the certificate of title. - d) The proposed amendment will prejudice the $1^{st}$ respondent in so far as the applicant seeks to introduce a new claim for cancellation of the $1^{\ensuremath{\text{st}}}$ respondent's certificate of title. - e) It is in the interests of justice that the application is denied and the same is dismissed with costs to the 1st respondent.

$\mathsf{S}$

### 4. Rejoinder:

$\overline{5}$

$10$

The applicant swore an affidavit rejoining the affidavit in reply, and he stated that.

- a) Before instituting Civil Suit No. 16 of 2023 on the 27th April 2023, the applicant wrote to Kumi District Land Board and the Area Land Committee, Nyero Town Council in Kumi District to ascertain whether the 1st respondent had any certificate of title on the suit land but received no response. Annexures "A" & "B" Photostat copy of the letter to the Kumi District Land Board dated December 2022 and Photostat copy of the letter to the Area Land Committee, Nyero Town Council in Kumi District dated 20th December 2022. - b) On the 20th day of December 2022, the applicant attempted to conduct a 15 search at the land registry pertaining the 1st respondent's occupation of part of the suit land but was unsuccessful as he did not have the description of the land at the registry. Annexure "C"- Photostat copy of the letter from applicant's lawyers. - c) The proposed amendment is not changing fundamentally the cause of action. There is no law which bars an amendment to add a new cause of action long as it does not substitute a previous cause of action. - d) The 1st respondent will not be prejudiced as it will have an opportunity to file an amended written statement of defence. - e) It is in the interest of justice that this application is granted.

Only the 1st respondent filed an affidavit in reply to this application, the 4th respondent on various dates when this matter came up for mention before the Deputy Registrar stated that she had no objection to the application. It would appear this application was only opposed by the 1st respondent.

Only the 1st respondent was given schedules in regard to submissions. 30

#### $\overline{5}$ 5. Representation.

M/s Natala & Co. Advocates represented the applicant, while M/s Silicon Advocates represented the 1st respondent. The parties filed written submissions, which have been considered accordingly. While thankful for the submissions, I will refer to them as and when necessary.

$10$ 6. Issues.

> I am minded that two issues suffice to resolve the instant application, and these are.

- a. Whether the applicant should be granted leave to amend its plaint to include a prayer for cancellation of the Certificate of Title of the 1st respondent touching the suit land? - b. Whether the applicant should be granted leave to amend its plain to add Kumi District Land Board, The Commissioner for Land Registration and Oenen Anthony as defendants in Civil Suit No. 16 of 2023? - 7. Resolution.

a) Whether the applicant should be granted leave to amend its plaint to include a prayer for cancellation of the Certificate of Title of the 1st *respondent touching the suit land?*

This application was brought under Section 98 of the Civil Procedure Act, Cap 71 (CPA), which inherently empowers this court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.

The applicant also brought this application under Order 6 Rule 19 of the Civil Procedure Rules, providing that the court may, at any stage of the proceedings, allow either party to amend his 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 $5$ purpose of determining the real questions in controversy between the parties.

The applicant also brought this application under Order 1 Rule 10(2) of the Civil Procedure Rules, providing 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, 10 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 15 the suit, be added. - Determination.

The essence of Order 6 Rule 19 of the Civil Procedure Rules was clarified on by the Supreme Court in the case of Gaso Transport Services (Bus) Ltd Vs Martin Adala Obene SCCA No. 4 of 1994, Tsekoko JSC stated:-

"The following principles appear to be recognized as governing the exercise of discretion in allowing amendments:-

1. The amendments should not work injustice to the other side. An injury which can be compensated by the award of costs is not treated as an injustice.

2. Multiplicity of proceedings should be avoided as far as possible and all amendments which avoid such multiplicity should be allowed.

3. An application which is made malafide should not be granted.

4. No amendments should be allowed where its expressly or impliedly prohibited by any law."

In the instant case the applicant contends in paragraph 5-6 of his affidavit in $\overline{5}$ support of the application that he only learnt of the 1st respondent's certificate of title through the 1st respondent's averments in Misc. Application No. 92 of 2023 and subsequently conducted a search which indeed turned out to show the existence of the said title of land comprised in LRV 3285 Folio 20 Plot 32 & 34 Block 4 land at Nyero. $10$

In response to this the 1st respondent contends that this was a result of the applicant's own dereliction and that had he and his advocates conducted due diligence before filing the main suit, he surely would have known that the 1st respondent was the registered proprietor of the said land rending the application

unnecessary. 15

on the same date.

In rejoinder the applicant contended that he had indeed endeavoured to write to the relevant land management authorities in the district to inquire as to whether the 1st respondent had any registered title over any part of the suit land and received no response. He attached letters to both the land board and area land committee and letter of search to the land registry. The letters are dated 20th December 2022 and the letter to the Kumi District Land Board is marked received

I am not convinced by the counsel for the 1st respondent's submission that the applicant had constructive knowledge of the 1st respondent's ownership of the suit land and that this information was in the hands of the applicant at the time 25 they sued.

The evidence of the various letters written by the applicant's advocates was not controverted by the $1^{\ensuremath{\text{st}}}$ respondent. Accordingly, I find that the applicant was not dilatory and made attempts to find $\overline{5}$ out if the 1st respondent did indeed have a certificate of title over the suit land.

I also therefore find no merit in the contention that the application is '*malafide*'. Malafide as stated by Lindsay J in Gromax Plasticulture Ltd v Don and Low Nonwovens Ltd: "Plainly it includes dishonesty...".

10 The applicant clearly did take concrete steps to try and ascertain the information regarding the 1st respondent's certificate of title to no avail. It cannot be said that he brought this application dishonestly.

The respondent also contended that the proposed amended plaint of the applicant introduces a new cause of action and orders with the potential of changing the cause of action into one of a substantially different character.

The alleged new cause of action in this case is a "prayer for cancellation of the *Certificate of Title of the 1st respondent touching the suit land."*

Paragraph $6(c)$ of the proposed amended plaint includes the addition of "An order" for cancellation of a Certificate of title of the 1st Defendant to wit LRV 3285 FOLIO

20 BLOCK 4 PLOT 32 & 33 LAND AT NYERO". 20

> The amended plaint at paragraph $7(w)$ states "That from the written statement of defence of the 1st Defendant filed on 19th July 2023, the Plaintiff has learnt that the 1st Defendant has a Certificate of Title which captures part of the suit land Vide LRV 3285 FOLIO 20 BLOCK 4 PLOT 32 & 33 LAND AT NYERO measuring approximately 43.053 hectares in total."

Paragraphs 7 (x), 7(y), 7(z), 7(aa), 7(bb), & 7(cc) go on to detail similar claims of fraud in the awarding of the suit land and said land to the 1st respondent. Paragraph 8 of the proposed amended plaint goes on to particularise the fraud alleged in the registration of the certificate of title of the $1st$ respondent.

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- Counsel for the 1st respondent rightly referred this court to the precedent set in $\overline{5}$ the case of Crane Bank (In Liquidation) v Sudhir Ruparelia & Anor (supra) where the court quoting the principles laid down in Bullen & Leake & Jacobs Precedents of Pleadings 12th Edition as relied by the Kenyan Court of Appeal in Joseph Ochieng & 20rs v First National Bank of Chicago, Civil Appeal No. 149 of 1991 held that. - "...if the proposed amendments introduce a new case or new ground of 10 defence it can be allowed unless it would change the action into one of a substantially different character which could more conveniently be made subject of a fresh action..."

The wording of the proposed amended plaint does not introduce a new cause of action which is one for the cancellation of the certificate of title granted to the $1^{\rm st}$ 15 respondent. As a result of this the proposed amended plaint goes on to assert that said title was procured by fraud and as a matter of law fraud must be specifically pleaded and particularised. (See: Kampala Bottlers Ltd versus Damanico (U) Ltd Civil Appeal No. 22 of 1992)

The applicant in the proposed amended plaint still maintains as in the original 20 plaint that the 1st respondent is a foreign entity and could not have lawfully purchased and acquired interest in customary land.

In addition to this the applicant now seeks the cancellation of the certificate of title granted to the $1^{st}$ respondent on grounds of fraud.

I am of the singular mind that the cause of action in the amended plaint is not of 25 a substantially different character from the old one and rather it flows as a continuation of the applicant's contention in the main suit that the $\mathbf{1}^{\text{st}}$ defendant could not possibly have acquired an interest in the land except through fraud.

Finally, I find no merit in the 1st respondent's contention in paragraph 18 of its $\mathsf{S}$ affidavit in reply that it will be prejudiced if the inclusion of this new cause of action is allowed.

Counsel for the 1st respondent submitted that allowing the proposed amendment would strip the 1st respondent of its defence of indefeasibility of title.

However, in my view the proposed change raises a cause of action for cancellation $10$ of that very title on the grounds of fraud.

The 1st defendant will still be able to raise the shield of indefeasibility of title even if this amendment is allowed and the burden will be on the applicant still to shatter the said shield on the ground of fraud.

- Accordingly, in order to avoid a multiplicity of suits and in order for the court to 15 subsequently determine all the true matters in dispute between the parties, I am convinced that the applicant has made a case for the grant leave to amend his plaint in the main suit to include a prayer for cancellation of the certificate of title of the 1st respondent touching the suit land. - b) Whether the applicant should be granted leave to amend its plain to join 20 Kumi District Land Board, The Commissioner for Land Registration and Oenen Anthony as defendants in Civil Suit No. 16 of 2023?

I note that there is no opposition from the respondent to the addition of Oenen Anthony as a defendant to the main suit, Civil Suit No. 16 of 2023 in the affidavit in reply of the $1^{\ensuremath{\text{st}}}$ respondent.

The other respondents did not file a reply to this application on court record. And on 26th/02/2024 Counsel for the 4th respondent stated that he had no objection to the application.

Nonetheless, I will resolve the merits of the addition of Oenen Anthony as a $\overline{5}$ defendant in the main suit.

## Determination:

At paragraphs 6(a) & 6(b) of the 2nd and 3rd respondents' that the suit land is customary belonging to Mr. Oenen Anthony their father and that they occupy the same by virtue of being some of his children.

While commenting on Order 1 Rule 10(2) of the Civil Procedure Rules, Sir Dinshah Fardunji Mulla, The Code of Civil Procedure, (Vol 1, 17th edn, Lexis Nexis), 102 had this to say.

Under Order 1 Rule 10(2), the court has the discretion to order any person to be joined as a plaintiff or defendant or as a person whose presence before the court 15 may be necessary in order to enable the court effectively and completely to adjudicate upon and settle all questions involved in the matter before it. Such a person may be joined even if the plaintiff has no cause of action against him or her provided that such party's presence is necessary for effectual and complete adjudication and settlement of all the issues involved in the suit before the court. 20

This position was restated in the case of Yahaya Kariisa Vs Attorney General SCCA No. 7 of 1994 [1997] HCB 29 where court stated,

> "... the main purpose of joining parties to as case is to enable the court to deal with the matter brought before it and to avoid multiplicity of proceedings."

In this case the addition of Oenen Anthony will be important in determining how he came to have a presence on the suit land which he subsequently passed on to the $2^{nd}$ & $3^{rd}$ respondents.

- Having found as I did in regarding Issue 1, I find it necessary to add the Kumi $\overline{5}$ District Land Board as a party to Civil Suit No. 16 of 2023 because the 1st respondent avers in Paragraph 11(e) of its written statement of defence that it was the authority that gave it the suit land by way of formal lease and approval of the lease was effected by a letter dated 8th day of June 2001. - The presence of the issuing authority will be essential in determining how the $1^{\ensuremath{\text{st}}}$ 10 respondent came to hold a lease title touching part of the suit land.

The addition of the office of the Commissioner for Land Registration is also necessary in helping the court understand the circumstances under which the said certificate of title was issued to the 1st respondent.

Furthermore, the determination of Civil Suit No. 16 of 2023 could subsequently 15 necessitate this court issuing orders to the office of the Commissioner for Land Registration, so it is of importance that the Commissioner for Land Registration is part of these proceedings.

Order 6 Rules 19 of the Civil Procedure Rules, SI 71-1 provides that the court may, at any stage of the proceedings, allow either party to alter or amend his or her 20 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 and since

In addition, Order 1 Rule 10(4) of the Civil Procedure Rules is instructive of the amendment of pleadings where a defendant is added. It states that where a 25 defendant is added or substituted, the plaint shall, unless the court otherwise directs, be amended in such manner as may be necessary, and amended copies of the summons and of the plaint shall be served on the new defendant, and, if the court thinks fit, on the original defendants.

- Consequently, and for the reasons given above, I would find that this application $\overline{5}$ is meritorious and is therefore allowed. - 8. Orders. - The application for is allowed with costs to abide the cause. - The plaintiff is directed to filed an amended plaint in Civil Suit No. 16 of 2023 within 15 days and serve the defendants accordingly, with the procedural requirements under the Civil Procedure Rules to follow thereafter. - The cost of this application to be in the cause.

I so order.

Hon. Justice Dr Henry Peter Adonyo

Judge

30th August 2024

$10$