Ssenyonga v Ssemakula (Miscellaneous Application No. 1745 of 2022) [2023] UGHCLD 77 (29 March 2023)

Full Case Text

## THE REPUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## (LAND DrVrSrONl

## MISCELLANEOUS APPLICATION NO.1745 OF 2022

# 5 (Arlslng out of 533 oJ 2015)

SSENYONGA PETER:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

#### VERSUS

SSEMAKULA STEPHEN:::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENT

# Before: Lada Justlce Alexandra Nkonqe Ruaadua.

## 10 Rullnq.

This application brought by notice of motion under the provisions of Sectlon 33 oJ the Judlcature Act cap.73, Section 98 of the Clvll Procedure Act cap,98 and Order 7 rule 73 & Order 52 rules 7 & 3 of the Cirtll Procedure Rule Sf 7I-I seeks orders that Ssemakula Peter, the respondent herein be struck off as the plaintiff in the main suit, and Ssenyonga Peter, the applicant be substituted as the proper plaintiff to the suit. It also seeks orders that costs of the application be provided for.

# Grounds of the a,ppllcatlon:

20 The grounds of the application are contained in the affidavit in support of Mr. Ssenyonga Peter, but briefly that he is the rightful owner of the kibanja as well as the developments thereon situate at Wampampa Zone Cell, Kanyanya Ward Kawempe division forming the subject matter of Hlgh Court Cfitll Sult llo.533 of 2O15 which is pending before this court.

That while he bought the suit kibanja from a one Ssemujju Abdul and Mubiru Abraham who were acting o behalf of Ms. Nabulime Janat on 2l"t November 2013, it was the applicant's younger brother who was present to witness the same and that upon completing the purchase, he took possession of the suit 25

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kibanja and started construction of a residential house in which he has lived with his family.

That although the applicant paid busuulu for the said kibanja until 2015 & 2O16, sometime in 2015 when he had left the country to work in Rwanda, he received communication from the respondent that his house had been knocked down by KCCA officials, and a one Mukalazi Ally; and that he (the applicant) immediately generated a power of attorney appointing the respondent as his lawful attorney to file a suit against the defendants in the main suit.

That although the said documents were to be sent to him for execution by bus, the same was not done and that the lawyer informed him that they had found a better way of the respondent representing the applicant without powers of attorney; and that the suit had already been filed. That when he came back into the country sometime in 2Ol7 , he was informed that the suit 10

had been hxed for hearing. 15

> That sometime in 2021, the applicant approached the lawyer demanding to be availed a copy of the plaint filed on his behalf but his request was objected to and that the lawyer instead gave him a copy of the purchase agreement in respect of the same kibanja executed in favour of the respondent who later revealed to the applicant that he had instituted the suit in his capacity against

the applicants kibanja.

That the respondent had written a parallel purchase agreement affecting the applicant's ownership of the suit property and that he was advised by his lawyers to file this application challenging the propriety of the suit, and ask court to substitute him as the proper plaintiff.

In addition, that the respondent lacked locus standi to sue against the applicant's kibanja and that the results of the suit filed by the respondent will affect his interest in the suit kibanja if it is not well guarded thus it is equitable that the application is granted.

The respondent opposed the application through his affidavit in reply wherein he sought the leave of this court to cross-examine the applicants on the 30

contents of his affidavit in support. He objected to the application on grounds that it is devoid of any legal merit, is an abuse of court process and is intended to waste court's time thus it should be dismissed with costs.

5 That because the applicant has an interest in the suit kibanja, he can only seek to be joined as a party but not to have the respondent struck out considering the fact that the respondent's interest in the suit kibanja is already established, and that the applicant has also acknowledged the respondent's interest originating from 246 February 2012 which he was at all time aware of.

10 That the applicant seeks to inherit the case filed by the party who has an interest in the suit kibanja without even notifying the defendants in the main suit and yet he is at liberty to sue the respondent, or apply to be joined as a party to the suit rather than strike off the respondent who has demonstrated that he has an interest in the kibanja and has since obtained injunctive

15 orders.

The applicant did not file an affidavit in rejoinder to the averments set out in the respondent's affidavit in reply.

The applicant was represented by M/s Kabuusu Muhumuza & Co. Advocates while the respondent was represented by M/s Tumusllme lrumha & Co. Adaocates.

# Conslderatlon oJ the arplicatlon,

The issue for determination is whether the applicant can be added as party Clutl Sult No.533 of 2075, and the respondent be struck off as the plaintiff therein. The joinder of parties to pleadings is governed :under Order 7 rule

25 10 (2) of the Clvll Procedure Rules S. I 77-l which provides that;

> nThe court mag, at dng stdge of the proceedlngs elther upon or uithout the appllcatlon of eltlcr partU, @nd on such tenns as fiag appedr to the court to be tust, order thol the no,me of anu partg lmproperlg Jolned, uhether as platnttlJ or deJendant, be stntck out, and that the nanne of ang person uho ought to haue been

\J/4

Jolned, uthether as plalntifJ or defendan\ or whose presence beJore the court mag be necessary ln order to enable the court eJfectuallg and completelg to adJudicate upon and settle all questlons lnuolued ln the sult, be added."

The procedure for bringing such an application is provided for under Order 7 rule 73 Cfitll Procedure Rules (supra) that; 5

uAng applTcatlon to add oJ strlke out or substltute a plalntlff or detendant mag be m.ade to the court at anu tlme before trlal bg mentlon or summons or at the trtal of the sult ln summary molt ler."

It is worthy of 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. Like all discretion, however, it must be exercised judiciously based on sound principles. See.' Yahaga Korllsa a. Attorneg General& A'nor, S. C. C. A. No.7 oJ 1994 [199n HCB 29.

In the present case, the applicant seeks orders striking off the respondent as the plaintiff in the main suit, and substituting him as the plaintiff, on grounds that because the respondent has no interest in the suit kibanja, he had no Iocus to institute the suit in the first place.

- The respondent on the other hand avers that although the applicant indeed has an interest on the suit kibanja, he too has a subsisting interest thereon that was affected, and by virtue of which he instituted the suit. He claims to have instituted the suit to protect his interest and that rather than be struck off from the suit, the applicant should instead be added as a party thereto. 20 - The purpose of joinder of parties is to avoid multiplicity of suits. Under Sectlon 33 of the Judlcadtre Act (Cdp. I3,f 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. 25

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While the applicant disputes the respondent's claim over the land on grounds that the respondent had written a parallel purchase agreement affecting the applicant's ownership of the suit property and that he was advised by his lawyers to file this application challenging the propriety of the suit.

$\mathsf{S}$ It is clear that the applicant's averments impute allegations of fraud on the conduct of the respondent and how he obtained an interest on the land.

In those circumstances, it would be appropriate and in the interest of justice that all matters touching the subject matter of the suit including the question of the validity of the claim of ownership by either side be determined finally and completely, to avoid litigating over the same matters again.

Accordingly, it is the finding of this court that it would be an act against the rules of natural to deny the respondent a hearing. Thus rather than strike off the respondent as the plaintiff, it is appropriate to have the applicant herein added as a party to the suit so that his claim over the kibanja vis-à-vis the respondent's claim can be ascertained after assessing all the evidence in a full trial.

This application is hereby granted in the following terms:

a. The applicant is hereby added as a party to Civil Suit No.533 of 2015 and shall file its pleadings within 14 days of delivery of this ruling;

b. Costs shall abide the cause.

I so order.

Aubolf. 25

Alexandra Nkonge Rugadya

Judge

29th March, 2023

Delivered by said Onlong. 29/3/2023