Sewaya v Bukenya and 7 Others (Miscellaneous Application 134 of 2023) [2023] UGHCLD 268 (31 August 2023)

#### **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA HOLDEN AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION NO.0134 OF 2023 (ARISING FROM CIVIL SUIT NO.3103 OF 2016)**

**SEWAYA MUHAMMAD---------------------------------- APPLICANT/PLAINTIFF**

**VERSUS**

**1. BUKENY A FRANCIS**

**2. LAKE SIDE CITY LTD**

**3. KAUSHIK ROY DAMANI**

- **4. LAKESIDE TOWNSHIP LIMITED --------------- RESPONDENTS/DEFENDANTS** - **5. KIKONYOGO INVESTMENT LIMITED** - **6. HABA GROUP (U) LTD** - **7. DAMANICO PROPERTIES LTD** - **4. COMMISSIONER LAND REGISTRATION**

#### *RULING*

### *BEFORE HON. LADY JUSTICE KANY ANGE SUSAN*

This application was brought under S.98 Civil Procedure Act. S.33 Judicature Act, Order l Rule l 0(2) and 22 Order 52 of the Civil Procedure Rules. It seeks orders that;

- 1. The applicant be allowed to join Civil suit No.3103 of 2016 as plaintiff - 11. Costs of the application be provided for.

The grounds for the application were contained in the affidavit of the applicant Sewaya Muhammad but briefly they are;

That the applicant is a kibanja owner of 154 acres and is bonafide occupant on land having inherited the same as a beneficiary from estate of late Manzi Budalah Kawansenyi.

That on l 3th May 1991 he also purchased a kibanja from Edirisa Saddala Bosa of Lweza occupied it until 2020 when he was evicted.

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Thot the 2nd to 6rh plointiffs in CS No.3l03 of 20.16 entered into o froudulent consent judgment with the 5rh respondent ond subdivided the lond comprised in kyodondo Block27O. Thot the respondents hove never legolly purchosed for voluoble considerotion the subject lond in totol disregord of his equitoble interests.

Thot it is foir ond just he be joined on the soid suit so thot his inleresls in the subject lond ore cotered for.

ln reply the 5th respondent overred thot the opplicotion is incompetenl, incurobly defective ond morred by heorsoy ond the offidovil is orgumentotive.

Further to this thot opplicont hos no interest in Civil Suit No.3l03 of 2013 ond grounds of this opplicotion constitute opplicont's couse of oction in civil suit No.0394 of 2022 where the Srh respondenl is the 1't defendont. Thot If the opplicotion is gronted it will couse o multiplicity of suits over the some motier.

Thot consent judgment wos entered for oll the plointiffs sove for Bukenyo Froncis.

Thot his cloim con be determined in HCCS No.394 of 2022.

The 7th respondent in reply overred thol the oppllcont hos no1 furnished court wilh sufficient proof of common-interest in the couse of octlon ogolnst the 7th respondent in HCCS No.3l03 of 201 6 os plointiff .

Thot his kibonjo cloims ogoinst the 7th respondent ore pending determinotion in HCCS No.394 of 2022 ond ollowing this opplicotion will leod to o multiplicity of suits.

## Represe nlolion

M/s Tumusiime, lrumbo & Co. Advocotes represented oppliconls while M/s Obed Mwebeso & Associoted Advocotes represenled ihe 5rh respondenl while M/s Tuhimbise & Co. Advocotes represented the 7ih respondenl.

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### Issues

- 1- Whether the applicant ought to be added as plaintiff in HCCS No.3103 of 2016 - 2- What remedies are available to the parties

## **Resolution**

## Preliminary objection

Counsel for the 5<sup>th</sup> respondents raised a preliminary objection that the affidavit in support of the application is prolix and argumentative contrary to the rules of procedure and is incurably defective and ought to be struck out. He relied on Order 19 Rule 3(2) of the Civil Procedure Rules and case of Male Mabirizi Kiwanuka versus The Attorney General SC. Misc. Application No. 07 of 2018.

Order 19 Rule 3 of the Civil Procedure Rules provides.

1) Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications on which statements of his or her belief may be admitted, provided that the grounds there are stated. See civil appeal No.13 of 2011 between Kakooza Jonathan, Kalemera Frank versus Kasaala Cooperative Society Ltd.

Looking at the affidavit, it is true, the paragraphs are lengthy and repetitive and not desirable to the other party in court. But I find they are confined to facts and do not contain hearsay.

I thereby find that they are not argumentative/prolix or non-compliant with the provisions of Order 19 Rule 3 of the Civil Procedure Rules and I won't strike out the affidavit.

# 1. Whether the applicant ought to be joined as a plaintiff in HCCS No.3103 of 2016.

The joinder of parties to pleadings is governed under Order 1 Rule $10(2)$ Civil Procedure Rules. It provides that "The Court may at any stage of

the proceedings either upon or without the opplicotion of either porly, ond on such terms qs moy oppeor to the court to be just, order thot the nome of ony porty improperly joined whether os plointiff or defendont be struck out ond thot the nome of ony person who ought to hove been joined whether os plointiff or defendont or whose presence before the court moy be necessory in order to enoble the court effecluolly ond completely odjudicote upon ond setlle oll questions involved in the suit be qdded".

Therefore the power to odd or strike off ony porty to pleodings lies within the discretion of court which must however be exercised judiciously. See cose of Yohoyo Koriiso versus Attorney Generol ond Another SCCA No.07 of '1994 (1997 HCB ps 27).

The moin purpose of joining porties is to enoble the court to deol wilh the motter broughl before il ond to ovoid multiplicity of pleodings. ln the cose of Deported Asions Properly Custodion Boord versus Joffer Brothers Ltd I999 EA pg 55, lt wos held thot it is necessory to show either thot the orders sought could legolly offect the interest of thot person ond thot it is desiroble to hove thot person joined or on order mode thot would bind thot other person.

It thus hos to be estoblished thoi person odded hos on interest in the cose.

Counsel for the opplicont submitted thol the oppliconl should be ollowed 1o join os there ore common questions of low ond foct os exposed by the 5rh ond 7rh respondents. Thot the opplicont bought lond from one Ediriso Soddolo the some person whom the I'r respondent Bukenyo one of the plointiffs olso bought from.

Thot the opplicont hos interest in the subjecl lond ond the respondents hove entered into consent judgments without cleor demorcotions which offects his interest. Further to this thot suit No.394 of 2022 is o seporote suit which is not o test stipuloted under order I rule l0(2) of the Civil Procedure Ru les.

ln reply counsel for the 5th respondent ond olso the counsel for the 7rh respondent submiited thot the intended cloim ln HCCS No.3l03 of 20l6 is

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similar to the applicant's claim in HCCS No.394 of 2022 between similar parties. That if this application is granted court will hear two similar suits which is a multiplicity of suits. Further to this that he has failed to prove that the orders sought by the plaintiff in HCCS No.3103 of 2016 will affect his interest.

It is true the applicant herein filed civil suit No. 394 of 2022. In that suit he is the plaintiff and the defendants are; 1. Kikonyogo Investments Ltd, 2. Haba Group (U) Ltd, 3. Damanico Properties Ltd, 4. Uganda National Roads Authority and 5. Commissioner Land Registration.

His claim against the defendants is for a declaration that he is the customary heir of the late Manzi Budallah Kawansenyi who owned 154 acres at Kaatiko Birongo Cell Mutungo Ward and is entitled to that property as a beneficiary.

That the plaintiff is also entitled to 5 acres situate at Lweza B Cell Mutungo and the 1<sup>st</sup> to 4<sup>th</sup> defendants trespassed on it, and also a Munyonyo, Kigo Express Road was constructed without compensating him. Further to this that consent judgment entered on 13<sup>th</sup> July 2015 does not bind him.

In civil suit No.3103 of 2016 on which he wants to join as plaintiff the plantiff is Bukenya Francis and the defendants; 1. Lakeside City Ltd, 2. Kanshuk Roy Damani, 3. Lake side Township Ltd, 4. Kikonyogo Investment Ltd, 5. Haba Group (U) Ltd, 6. Damanico Properties.

The grounds for requesting to be added as a plaintiff are that he is a kibanja owner and beneficiary of the late Manzi Budalah Kawansenyi who had a kibanja measuring 154 acres. That he also purchased a kibanja of 5 acres from Edirisa Saddala Bosa of Lweza measuring 5 acres. That defendants entered in consent judgment in 2020 fraudulently without his knowledge in respect of land at Lweza B and Katiko Birongo in total disregard of his equitable interests. He prayed to be joined so that his interest in the suit land are catered for.

I agree with counsel for the 5<sup>th</sup> and 7<sup>th</sup> respondents, that the Applicants intended claim in Civil Suit no 3103 of 2016 which he wants to join as plaintiff


is the same as civil suit no 394 of 2022 and the court cannot hear similar suits between the same parties unless consolidated. In this case since he has not joined the suit then it's not necessary for him to join as it will create a multiplicity of suits. Further to this the only interest he alleges with the present plaintiff is that he bought 5 acres at Lweza from Edrisa Saddala Bosa whom also the plaintiff bought from. Since its one of the claims in his suit no 394 of 2022 then I find that it's not necessary to join him as a party. In this suit most of the plaintiffs consented apart from one and adding on another plaintiff will delay the case further.

I thereby find no merit in the application and its hereby dismissed with costs.

DATED AT KAMPALA THIS ....................................

KANYANGE SUSAN AG JUDGE LAND DIVISION.