Ssebi v Mutebi and 7 Others (Miscellaneous Application No. 448 of 2022) [2023] UGHCLD 51 (6 March 2023)

### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DIVISION)

### **MISCELLANEOUS APPLICATION NO.448 OF 2022**

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# (Arising out of Civil Suit No.1101 of 2020)

### SSEBI ABDUL::::::::::::::::::::::::::::::::::::

### **VERSUS**

- 1. MUTEBI HANNINGTON - 2. BATANUDE SAMUEL - 10 3. NAMUSOKE HARRIET NALONGO - 4. NSUBUGA JAMES TOLOTTO - 5. MUWANGA BESWERI NSUBUGA - 6. NSUBUGA DAVID MUSOKE DEWINTON (Administrators of the Estate of the Estate of the - 15 Late TERETIO NSUBUGA) - 7. KOREA EVANGELICAL MISSION TO ALL NATIONS LIMITED - 8. COMMISSIONER LAND REGISTRATION::::::::::::::::::::::::::::::::::::

### Before: Lady Justice Alexandra Nkonge Rugadya.

# 20

### Ruling.

This application was brought by Notice of Motion under the provisions of **Section 98 of the** Civil Procedure Rules Cap. 71 and Order 1 rules 3 & 10 (2) and Order 52 rules 1 & 3 of the Civil Procedure Rules S. I 71-1 seeking orders that the applicant is added as the 3<sup>rd</sup> plaintiff in HCCS No.1101 of 2020 and that the applicant is allowed to amend the plaint by adding his name and facts relating to his case. It further seeks that costs be in the cause.

### Grounds of the application.

The grounds of the application are contained in the applicant's affidavit in support of the application wherein he states inter alia that the $1^{st}$ and $2^{nd}$ respondents filed **Civil Suit** No.1101 of 2020 against the 3<sup>rd</sup> to 6<sup>th</sup> respondents and that the suit involves property forming part of the estate of the late Teretio Nsubuga, to which the applicant is a beneficiary through his mother, the late Norah Nansubuga who was the deceased's biological daughter.

That while the $1^{st}$ and $2^{nd}$ respondents seek to recover their own interest in the suit land and benefit from the estate of the late Tetetio Nsubuga, the interests claimed in the suit do not include the applicant's beneficial interest in the suit land despite the fact that the 1<sup>st</sup> and 2<sup>nd</sup>

Clarker of

respondents had before instituting the suit assured him that they intended to redeem the estate land for the benefit of the entire estate.

In addition, the applicant has fears that the lst and 2nd respondents may enter a consent judgment which may affect his interest in his late grandfather's estate which is the subject of the suit because the suit filed by the 1\$ and 2"d respondents is strictly in respect of their interest as they have declined to update the applicant as well as other members of the

deceased's estate claiming that they are not answerable to anybody.

That the lst and 2nd respondents may withdraw the suit, or be paid money owing to the fact that the applicant has on several occasions seen them holding meetings with tty's Xorea

#### Erangellcal Mlsslon to all Natlons Llmited' 10

That they have declined to disclose the intentions or outcome of the said meetings, and that even if no compromise or consent is entered into by the parties, the judgment of this court shall have a direct effect on the applicant's beneficial interest in the suit tand without being given an opportunity to lay his position and evidence before this court.

- Further, that while the applicant's lawyers have informed him that he can hle his own suit against the same defendants over the same property, he has also been advised that such a suit will occasion a multiplicity of cases in the court yet the matters there can be settled in this suit; and that if the applicant is allowed to be joined in this suit, multiple suits shall be avoided since the judgment of this court will be binding on him as well. 15 - That adding the applicant as a party is not only crucial but it is also necessary for the final determination of his rights in the suit property, since his interest and rights are not represented without him being a party to the suit, which is still in its early stages and the respondents stand to suffer no irreparable harm if the applicant is added as a plaintiff. 20

# Representdtion,

The applicant was represented by M/s Kagongo Jcckson & Co. Adoocates. Counsel for the applicant filed written submissions as directed by this court. 25

None of the respondents however filed an affidavit opposing the application despite the fact that they were effectively sewed through their respective counsel to wit:' M/s KQN Adaocdtes for the 1\* to 6th respondents, M/s Seko,bo,nJd & Co. Adaocates for the 7th respondent, while the 8s respondent was served through her office.

# Conslderqtlon of the apPlicatlon.

I have carefully read and considered the pleadings, evidence, and submissions ofboth parties. Order 7 n e 7 of the Cluil Procedure Rules S.f 7I'I empowers court to join parties who may have a claim or relief on the subject matter under issue.

Furthermore, Ord.er 7 ntle 70 (2) gwes this court power to add a party at any stage of the proceedings either upon or without the application of either party, whose presence before the court may be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit, and on such terms as may appear to be just.

The issue for determination by this court therefore is whether the applicant ought to be added as a party to Eigh Court Ctull Sutt No. 77Ol of 2O2O.

For a party to bejoined on ground that his presence is necessary for the effective and complete settlement of all questions involved in the suit, it is necessary to show either that the orders sought would legally affect the interest of that person and that it is desirable to have that

person joined to avoid multiplicity of suits, or that the defendant could not effectually set up a desired defence unless that person was joined or an order made that would bind that other person. (Depcrted Asians Propertg CustodjaI Board u. Jaffer Brothers Ltd p9991 I. E. A 55; See also: Gokaldas Laxlmldos Tanna u. Store Rose Muginza,ILC. C. S No. 7076 of 1987 [1990 - 7e97] KALR 27.) 15

The purpose ofjoinder of parties is therefore to avoid multiplicity of suits. Under Sectlon 33 ofthe Judtcature Act (Cap. I3) court has powers to grant remedies so that as far as possible all matters in controversy between the parties are completely and finally determined and all multiplicities of legal proceedings concerning any of the matters avoided.

- In the instant case, the applicant seeks to be joined as a plaintiff in the main suit which was filed by the 1st and 2nd respondents in their capacity as the beneficiaries of the estate of the late Nsubuga Teretio against the 3"1 to 6s respondents who are the administrators of the estate of the late Nsubuga Teretio. 20 - 25 Against the 7& and 8th respondents they seek among others, a declaration that the sale and purchase transactions executed over the suit estate land comprised in Buslro Block 413 plots 16 and 19 at Bwerengo Wo,klso Dlstrict by the ld administrator of the estate of the late Teretio Nsubuga as a trustee for the said estate, and the 6ir defendant as a purchaser of the suit land, and the purported sanctioning of the same by the 1"r to Sth defendants is not only fraudulent and illegal but also void abinitio. - The applicant through his affidavit avers that the suit filed by the 1st and 2"d respondents is in respect of their respective claims and that his beneficial interest in the estate of his late grandfather is not represented in the suit. 30

He also states that he opted to file this application to be added as a party to the main suit so that he can prosecute his claim rather than file a fresh suit of the same nature which would occasion a multiplicity of suits.

\'r)td

It is trite law that where facts are sworn to in an affidavit and they are not denied by the opposite party, the presumption is that they are accepted or where no 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

In those circumstances, it would be appropriate and in the interest of justice that all matters touching the subject matter of the suit land be determined finally and completely, to avoid litigating over the same matters again.

This court is therefore inclined to grant this application. No orders as to costs.

10 I so order.

Judge

Alexandra Nkonge Rugadya

6<sup>th</sup> March, 2023.

Deliver d by eail<br>Outburgo<br> $\frac{6}{3}$ 2023.

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