Senono & Another v Sugar Corporation (U) Limited & 16 Others (Miscellaneous Application 465 of 2022) [2024] UGHC 730 (23 February 2024)

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT MUKONO

## **MISCELLANEOUS APPLICATION No. 465 OF 2022**

## (ARISING FROM CIVIL SUIT No. 194 OF 2017)

1. SENONO YAWE MUHAMMED

**2. IBRAHIM KYAGULANYI ::::::::::::::::::::::::: APPLICANTS**

#### **VERSUS**

- 1. SUGAR CORPORATION (U) LTD - 2. MEHTA GROUP OF COMPANIES LTD

3. EAST AFRICA SUGAR DISTRIBUTORS LTD

- 4. UGMA LIMITED - 5. MEHTA GROUP MANAGEMENT LTD - **6. UGANDA SUGAR FACTORY LIMITED** - 7. UGMA STEEL ENGINEERING CORPORATION LTD

8. UGANDA STEEL ENGINEERING CORPORATION LTD

9. UGMA KASAKU TEA ESTATES LTD

- 10. LUGAZI HOSPITAL - $11.$ LUGAZI TOWN COUNCIL - **LUGAZI LORRY PARK** $12.$ - 13. LUGAZI TAXI PARK - 14. MR. GIGA SANDE - ALL OCCUPANTS OF THE LAND - COMMISSIONER LAND REGISTRATION $16$ - 17. ATTORNEY GENERAL::::::::::::::::::::::::::::::::::::

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## BEFORE HON. LADY JUSTICE CHRISTINE KAAHWA

#### **RULING**

This is an Application brought under the provisions of Section 98 of the Civil Procedure Act Cap 71, Order 6 Rule 19, Order 1 Rule 10 and Order 10 Rule 24 of the Civil Procedure Rules SI71-1 for Orders:

- 1. The Commissioner Land Registration and the Attorney General be added as parties to the main suit as Defendants. - 2. The original plaint be amended to reflect the changes and - 3. Costs of the Application be provided for.

## **Brief Background:**

The Applicants sued the Respondents for declarations among others that the leasehold and freehold titles created on the suit land by the Respondents were created with deceit, illegality and fraud. The Applicants subsequently filed an Application to carry out a survey and boundary opening of the suit land.

The Applicants and the $1^{\rm st}$ Respondent on the $3^{\rm rd}$ October, 2019 then executed a Consent before this Court wherein they undertook and nominated Redeemed Consults Limited, a certified Land Surveyor's firm to open boundaries of the suit land. The boundaries were opened, a Survey Report made and filed in this Court on 2<sup>nd</sup> September, 2022.

Basing on the outcomes of the Survey, the Applicants wish to add the Commissioner Land Registration and Attorney General to the suit and also amend their plaint to reflect the said changes. As per the Affidavit in Support of the motion, the Applicants intend to amend the plaint to include the outcomes of the survey exercise allegedly that the intended which among others are created Defendants/Respondents illegally and fraudulently Freehold Titles over mailo land.

The 14<sup>th</sup> Respondent, Mr. Giga Sande filed an Affidavit in reply to this application. He states in paragraph 9 of his Affidavit that he is not opposed to adding the Attorney General and Commissioner Land Registration as parties to the suit.

#### **Representations:**

Mr. G. S Lule (SC) and Benon Servazi appeared for the Applicant; Mr. Pope Ahimbisibwe appeared for the $1^{st}$ and $6^{th}$ Respondent while Mr. Bichachi Ojambo also appeared for the 10<sup>th</sup>, 11<sup>th</sup>, 13<sup>th</sup>, $16^{th}$ and $17^{th}$ Respondent.

The Respondent (Attorney General) deposed an Affidavit wherein they oppose the grant of the Application for amendment. It is averred that the Applicants have not diligently prosecuted their matter and are therefore not really interested in its prosecution. They contend further that the suing the governor of the protectorate was a choice and not really an error. They allude to the fact that this case is time barred.

# **Analysis and Resolutions of Court:**

#### **Issues:**

- 1. Whether it is proper to add the Commissioner Land Registration and Attorney General as parties to **Civil Suit No.** 423 of 2018. - 2. Whether it is proper to allow the amendment of the plaint to reflect the changes in the suit.

I will resolve these issues jointly suffice to say that the $14^{th}$ Respondent in his Affidavit in reply states that he is not opposed to court granting the orders sought in the Application.

The other parties did not file Affidavits in opposition of the Application. It should be observed that where a matter is proceeding by way of affidavit evidence and there is no opposing Affidavit from any of the parties, the Application remains unchallenged, however the unchallenged Applications must be inherently tenable on their own. See Edson Byamukama Vs. **Makerere University Misc. Application No. 312 of 2008.**

## The law:

The Court is empowered under Order 1 Rule 1 of the Civil Procedure Rules S. I 71-1 to join parties who may have a claim or relief on the subject matter in issue.

Order 1 Rule 10(2) of the Civil Procedure Rules S. I 71-1 provides that:

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"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, 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, whose presence before the Court may be necessary in Order to make the Court effectually and completely adjudicate upon and settle all questions involved in the suit, be added".

Clearly Order 1 Rule 10 (2) is not only available to the parties but also to Court. The Court can on its own motion join any party as plaintiff or defendant if in its opinion such joinder would help it to effectively and completely determine the suit.

It is suffice to note that adding or striking off a party to pleadings, whether on Application of the parties or on Court's own motion, is in the discretion of Court. All discretion must be exercised judiciously. (See: Yahaya Kariisa vs. Attorney General & Anor, S. C. C. A. No.7 of 1994 [1997] HCB 29)

Order 1 Rule $10(4)$ also provides that;

"Where a 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."

Rule 4 is therefore to the effect that unless the court finds it unnecessary, after a defendant is added or substituted the Plaint may be amended to reflect the necessary changes made.

In the instant case, the Applicants seek to add the Commissioner Land Registration and Attorney General as parties to the suit. The request to add the said parties arises from a survey and boundary opening of the suit land that was made by the parties on Orders of this Court.

The gist of the Plaint that is sought to be amended is that the $1^{st}$ Plaintiff is the Administrator of the Estate of the Late Banaleba Wekisa who at the time of his death had bequeathed his land to his son, Isaac Kyagulanyi. However, upon obtaining the letters of Administration, the Plaintiffs realized that the land had been deceitfully, fraudulently and illegally acquired by the $1^{st}$ to $9^{th}$ Respondents/Defendants. The land in question as per the plaint was allotted to the Late Banaleba Wekisa by the Buganda Lukiiko after the 1900 Buganda Agreement.

Upon making a survey and boundary opening, the Plaintiffs realized that the colonial Government had illegally alienated land from their great grandparent, created Freehold Certificates of Title over it and the Governor of the Protectorate in connivance and conspiracy with the founder members of the $1^{st}$ – $9^{th}$ Respondents/Defendants transferred the land to the said Defendants. It is averred that the Registrar of Titles created the said Freehold Titles over the land in

question yet the same was Mailo land. It is upon this basis that the Applicants seek to add the Commissioner Land Registration and the Attorney General as parties to the suit.

# Categories of parties to a suit have been described in **Nabukenya** Sarah & 6 Ors Vs. Sulaiman Mukasa & Sons LTD & ors Misc. **Application No. 193 & 231 of 2022** as;

"Proper parties are those, though not actually interested in the claim are joined as parties for some good reasons. Desirable parties are those who have an interest of a suit or may be affected by the reason thereof. While necessary parties are those who not only have interest in the matter, but also who in their presence, the proceedings could not be fairly and effectively be dealt with. (Also see Chief of Army Staff v Lawal (2012) 10 NWLR at p $62)$

It therefore goes without saying that any person whose presence is crucial and fundamental to resolve a dispute can be added as party to a suit. A party to an action is bound by the decision made by court in the said action and it would therefore be proper that a person who is to be bound by a decision should be made a party to the suit.

In the instant case it has been brought to the attention of Court that the suit land was allegedly mailo land where freehold titles have since been created over it by the land's office and the Government. The 1<sup>st</sup> to 9<sup>th</sup> Defendants have allegedly illegally and

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fraudulently acquired the land and the legal interests therein from the Government.

I have perused the Plaint, the averments in the instant Application and affidavit in support. I am convinced that the Commissioner Land Registration and Attorney General are proper and desirable parties to this suit. To properly solve the matters in controversy and avoid a multiplicity of suits, it is befitting that they be added as parties to the suit.

This Application therefore succeeds.

The amended Plaint should be filed and served on the Respondents/Defendants within 14 days from the delivery of this Ruling.

For completeness, regarding the addition of parties that cannot be sued being "all occupants of the land" this Court agrees with representatives that the Application is not tenable in the form that it has taken. The persons in occupation ought to have been named as individuals. The "occupants of the land" are therefore struck off as Defendants.

In the premises the Court makes the following Orders;

1. The Application for amendment to add the Commissioner Land Registration and the Attorney General is allowed and the amendment should be effected within 21 days from the delivery of this Ruling.

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- 2. The "Occupants of the land" are struck off from the Application. - 3. The costs of the Application abide the outcome of the main suit.

**Dated** at **Mukono** this ....................................

$-1$

**Christine Kaahwa JUDGE**