Sempala v Nakiyingi and Another (Miscellaneous Application No. 1158 of 2022) [2022] UGHCLD 227 (24 November 2022)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

# **MISCELLANEOUS APPLICATION NO.1158 OF 2022**

(Arising from Civil Suit No.919 of 2018)

## SEMPALA ISAAC SEBAGGALA

#### (Suing through his Lawful Attorney

MOSES MUTEBI::::::::::::::::::::::::::::::::::::

#### **VERSUS**

#### 10

$\mathsf{S}$

### 1. NAKIYINGI ANNET

2. HON. NABILAH NAGGAYI::::::::::::::::::::::::::::::::::

### Before: Justice Alexandra Nkonge Rugadya.

# Ruling.

- The applicant, Mr. Sempala Isaac Sebaggala through his lawyers, M/s ADIL Advocates & 15 **Solicitors** brought this application by notice of motion, under the provisions of **Article 126** (2) (e) of the 1995 Constitution, Section 98 of the Civil Procedure Rules Cap. 71, Section 33 of the Judicature Act cap.13, and Order 1 rule 10 & 13 and Order 6 rules 19 & 31 of the Civil Procedure Rules S. I 71-1. - 20 The applicant seeks an order to be added as a defendant in Civil Suit No.919 of 2018, and for the necessary amendments to the pleadings to be made and for costs of the application to be provided for.

## Grounds of the application:

The grounds of the application are contained in the affidavit in support of the motion of Mr. 25 Moses Mutebi, the applicant's lawful attorney. He states that Mr. Sempala Isaac Sebagala has high interest in the suit, owing the fact that he jointly purchased the suit land, which he holds together with his wife who is one of the defendants in the main suit.

That not only have the two been in quiet possession thereof, but have also developed the suit land and even applied to the Buganda Land Board to be issued with a certificate of title in respect of the same.

That the orders sought in the head suit directly affect the legal interests of the applicant in the jointly owned property which is the subject of the suit; and that he will be prejudiced if he is not added as a defendant in the main suit.

In addition, that for effective and expcditious handling of all disputes on the suit land, it is prudent that the applicant be added as a party, and for all the necessary amendments to the pleadings to be made so as to avoid multiplicity of suits; and cnsurc the proper and effective adjudication of all issues pertaining to thc suit land-

5 None of the respondents opposed the application dcspitc thc fact that they were cffectively served with court process through thcir lawyers M/s Bin/,ngi & Co, Adaocates.

# Consid.eration of the aoollcation.

I have carefully read the pleadings, evidencc and submissions of the applicant, all of which I have taken into account to dctermine whcthcr thc instant application merits the prayers sought.

The application was filed by Mr. Moses Mutebi, the donee of powers of attorney. Attached to the application is the said instrument of authority, granted on 1"r December, 2021 by the applicant,

The issuc for determination in this application is whethcr thc applicant can be added as a dcfendant in Ciuil Sult No.919 of20la in thc circumstanccs ofthis case. 15

Thc joinder of parties to pleadings is govcrncd by Ord.er 1 r.1O (2) CI,tt which providcs that;

"The court ,nag, at q.ng stage of the proceedings either upon or without the application o.f either pa.rty, q.nd. on such terrns q.s mqg qppear to the court to be just, ord.er that the name of o.ng pqrtg itnproperlg joined., whether ds plaintiff or d.efend.q.nt, be str-uck out, and. thqt the name of ang person uho ought to have beenjoined., whether as plaintiff or d.efend.ant, or whose presence befote the cour1 mag be necessary in order to enq.ble the court effectuallg and. completelg to ad.judicqte upon and, settle all questions inuolaed in the suit, be added-"

The fundamental consideration before a person can bc joined a party is that such a party must establish that hc/she has a high intcrcst in the casc. 25

In addition, it must be clearly demonstratod that the ordcrs sought in thc main suit would directly legally affect the party seeking to be added. (see: Departed Asians p"opertg Custodidn Board. t Jaffer B"others Ltd [1999] I. E,A SS)

A party with interest must therefore demonstratc that his/hcr prcsencc is necessary lor the effective and complete settlemcnt of all qucstions involvcd in the suit; and that thc ordcrs sought would legally affect the intercst of that person; and that it is desirable to have that person joined to avoid multiplicity of suits; or that thc dcfcndant could not effcctually set up the desired defence unless that person was joincd or an ordcr madc that would bind that 30

2 U"['uA

other person. (See also: Gokaldas Laximidas Tanna v. Store Rose Muyinza, H. C. C. S No. 7076 of 1987 [1990 - 1991] KALR 21)

In the instant case, it is the applicant's unchallenged claim that he has a high interest in the suit on grounds that the suit land was jointly purchased by him and his wife who is a defendant in the main suit and that they jointly own the same.

He also states that the two have been in quiet possession of the same and have since developed the land and even applied to the Buganda Land Board, to be issued with a certificate of title for the land.

He relies on a number of documents, including the sale agreement and others contained in **annextures B and C,** all attached to the application. It is now settled law that where facts 10 are sworn to in an affidavit and they are not denied by the opposite party, the presumption is that they are admitted and where affidavit in reply is filed, the affidavit in support is taken to be unchallenged and truthful. (See: Tororo District Administration v Andalalapo Ltd [1997] KALR 126; Samwiri Mussa versus Rose Achen (1978) HCB 297). The said

presumption duly applies to this case. 15

> Since the respondent did not file any response to this application, this court is inclined to exercise its discretion and grant the application in the following terms:

- 1. The applicant is hereby added as a defendant in Civil Suit No.919 of 2018; - 2. The plaintiff shall add the applicant as party to this suit and ensure that all the 20 necessary amendments to the pleadings based on the applicant's claim as contained in this application are filed within a period of two weeks from the date of this ruling; - 3. The applicant shall file his written statement of defence and effect service of the same on all parties to the suit within a period of 21 (twenty-one) days, from the date of receiving the amended plaint; - 4. The amended rejoinder shall be filed and served within two weeks after receiving the WSD by the applicant. - 30

$25$

$\mathsf{S}$

5. No orders made as to costs.

I so order.

Alexandra Nkonge Rugadya

35 Judge

24<sup>th</sup> November, 2022.

Deli verd via<br> $24|v|2022$