The Board of Governors Kings College Buddo v Kizito (Miscellaneous Application 2677 of 2024) [2025] UGHCLD 5 (20 January 2025)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLENEAOUS APPLICATION NO.2677 OF 2024 (ARISING FROM CIVIL SUIT NO. 762 OF 2020) THE BOARD OF GOVERNORS KINGS COLLEGE BUDDO ::::::::::::::::::::::::::::::::::::: APPLICANT VERSUS DUNCAN KIZITO SEMATIMBA :::::::::::::::::::::::::: RESPONDENT BEFORE; HON. LADY JUSTICE NALUZZE AISHA BATALA**

## **RULING**

## **Introduction;**

- 1. This was an application by way of Summons in Chamber brought under Section 98 of the Civil Procedure Act, Order 6 Rules 19 and 31, for orders that: -, - i) The applicant be granted unconditional leave to amend their written statement of defence and counter claim in Civil Suit No. 762 of 2020 to plead more facts. - ii) The applicant be granted unconditional leave to amend their written statement of defence to correct a misdirection of the subject matter.

- iii) The applicant be granted unconditional leave to amend their written statement of defence and counter claim to rectify the misdirection there in regarding plots 24 and 25 which ought to have been only in the counter claim because they were not part of the subject matter in the main suit. - iv) Costs of the application be provided for.

#### *Applicant's evidence;*

- 2. The application is supported by an affidavit deponed by Alice Kaddu Nagadya on behalf of the applicant which briefly states as follows; - i) That the respondent filed Civil Suit No. 762 of 2020 against the applicant. - ii) That after filing the applicant's written statement of defence, it came to our notice that there was a misdirection made on the plots that constitute the subject matter in the main suit which the applicants now seek to rectify.

- iii) That plots 24 and 25 should have been mentioned only in the counter claim since they are not part of the suit land in the plaint. - iv) That I am required to attach a copy of the amended written statement of defence as an attachment on the application to amend the written statement of defense and the same is attached.

### *Respondent's evidence;*

- 3. The application is responded to by an affidavit in reply deponed by the respondent which briefly states as follows; - i) That the applicant filed a written statement of defense with a counter claim to HCCS No. 760 of 2020 contending that the land where he erected its perimeter wall is land comprised in Busiro Block 353 Plots 24 and 25. - ii) That considering the findings of the applicant's survey and boundary opening report, the applicant has no plausible defence to the suit.

- iii) That the applicant's intended amendments are prohibited in law since they fundamentally change the applicant's defence and cause of action in the counter claim. - iv) That the instant application is misconceived, does not meet the test of law, lacks merit and intends to delay the main suit.

## *Representation;*

4. The applicant was represented by Counsel Diana Kasabiti, Counsel Kaaya Diana and Counsel Eric Elokit of M/S Arcadia Advocates, M/S Kaaya, Birikujja Advocates and Legal Consultants and M/S Katende Serunjogi & Co. Advocates respectively whereas the respondent was represented Counsel Peter Allan Musoke and Counsel Yusuf Behinda of M/S Musoke & Marzuq Advocates & Legal Consultants. Both the applicant and respondent never filed written submissions despite receiving directives to file the same.


#### *Issues for determination;*

*Whether the applicant can be granted unconditional leave to amend the written stament of defence and counter claim in the main suit?*

### *Resolution and determination of the issue;*

- 5. The law on amendment of pleadings is governed by order 6 Rule 19 of the Civil Procedure Rules which states that; *"The court may at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such a manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties"* - 6. The supreme court in **Gaso Transport Services (Bus) Ltd V Martin Adala Obene Supreme Court Civil Appeal No.4 of 1994, Tsekoko JSC** laid down the following principles which govern the exercise of discretion in allowing amendments:

i) The amendment should not work an injustice to the other side. An injury that can be compensated for by way of costs is not treated as an injustice.

ii) Multiplicity of proceedings should be avoided as far as possible and all amendments, which avoid such multiplicity should be allowed.

iii) An application which is made malafide should not be granted.

iv) No amendment should be allowed where it is expressly or impliedly prohibited by any law.

- 7. Amendments may be allowed before trial, during trial or before judgement as long as the amendment shall not prejudice the other party and cause an injustice and as long as the other party can be compensated by costs. emphasis is placed on the fact that the amendment should be freely allowed provided it is not done mala fide and does not occasion prejudice or injustice to the other party which cannot be compensated by award of costs - 8. The applicant under paragraph 4 and 6 of the affidavit in support states that the after the filing of the written statement of defence it came to their notice that there was a misdescription made on the plots that constitute the subject matter of the main suit and that the said plots should have been mentioned in the counterclaim.

- 9. The applicant avers that the misdescription of plots was a result of the subdivision carried out by the plaintiff/respondent and that it is necessary to have the written statement of defence amended and counter claim amended to have all matters in controversy resolved. - 10. In reply, the respondent under paragraph 6 and 7 states that the applicant has no plausible defence to the main suit and that they intend to change a cause of action in the counter claim and that the instant application is malafide. - 11. The amendment the applicant seeks in the instant case is one that seeks to correct a misdescription on the plot numbers of the suit land which forms the subject matter of the suit. - 12. I am of the view that the amendment in the plot numbers is one which does not extend to change the cause of action but rather to avoid multiplicity of suits. It would be a different course if the applicant sought for an amendment that was to occasion an injustice to the respondent. - 13. The main suit is one which is still in the preliminary stages and has not been fixed for hearing yet by this court. If the hearing of

the suit had started, then the amendment in this instant application would be prejudicial to the respondent.

- 14. Taking into consideration the tests underlying amendment of pleadings as per the authorities relied upon, I am of the finding that the amendment the applicant seeks in the instant application is one which would not be prejudicial to the respondent. - 15. In the result the instant application succeeds with the following orders; - i) The applicant to serve and file the amended written statement of defence and counterclaim within 7 days from the date of this ruling. - ii) Failure of which this court shall proceed with the written statement of defence and counter claim on record. - iii) No order as to costs.

#### **I SO ORDER**.

#### **NALUZZE AISHA BATALA**

### **Ag. JUDGE**


## **th /01/2025**

# **Delivered Electronically via ECCMIS on the 20th day of January**