Turinawe Rwangomani and 2 Others v Nkuuna and 2 Others (Miscellaneous Application 118 of 2023; Miscellaneous Application 42 of 2024) [2025] UGHC 89 (24 January 2025)

### THE REPUBLIC OF UGANDA

### IN THE HIGH COURT OF UGANDA AT HOIMA

MISC. APPLICATION NO.118 OF 2023 (Formerly Misc. Application No. 1796 of 2021) (Arising from HCCS No.99 of 2023 formerly LD-C. S No. 200 of 2020)

#### **AND**

## MISC. APPLICATION NO. 042 OF 2024 (Formerly Misc. Application No. 1619 of 2022)

# TURINAWE RWANGOMANI AMOS & 2 ORS ::::::::::::::::::::::::::::::::::: **VERSUS**

NKUUNA ABDULLAH & 2 ORS::::::::::::::::::::::::::::::::::::

Before: Hon. Justice Byaruhanga Jesse Rugyema

### **RULING**

- This application brought under S.98 CPA and Order O.52 rr. 1 & 2 CPR is $[1]$ seeking the following orders; - 1. The defendants/Respondents' Written Statement of Defence filed on 3/12/2020 (in the main suit, C. S No.99/2023 formerly LD-C. S No.200/2020) be struck off the record. - 2. The defendants/Respondents' Counter claim filed on 3/12/2021 be struck off/dismissed from the record. - 3. The Respondents pay costs of the Application and the counter claim. - The grounds of the application are set out in the affidavit of John Tibs $\sqrt{21}$ Akanyamuhanga, an Advocate with M/s Byarugaba & Co. Advocates, Counsel for the plaintiffs/Applicants and briefly are that the Respondent's Written Statement of defence (WSD) and the counter claim are incompetent on court record and were filed out of time. - The Respondents opposed the application on grounds set out in an affidavit $[3]$ in reply deposed by **Lubega George William**, the 4<sup>th</sup> Respondent and briefly are: - a) The application was served out of time.

- b) There is no evidence of service of an Amended plaint in HCCS No.200 of 2020. - c) The Applicants did not file an Amended plaint in HCCS No.200 of 2020 but rather HCCS No.394 of 2013 which was deliberate and intended to cause confusion and as such the applicants have not come to court with clean hands. - d) That the Applicants ratified and/or acquiesced the late filing and service by filing a reply to the amended WSD and counter claim without any protest or reservations. - e) That the court has wide powers to ratify the late filing and service of the WSD and counter claim in the premises that the applicants did not demonstrate what prejudice will be suffered if the late filing and service of the WSD and counter claim is ratified. - f) That it is in the interest of justice that the application is dismissed.

## **Background**

- From the various pleadings and correspondences on record, it appears that $[4]$ this suit was first instituted by the Plaintiffs/Applicants against the Commissioner Land Registration for wrongful cancellation of their certificate of title to the suit land vide HCCS No.394 of 2013 in Masindi High Court. The suit was later transferred to the Land Division, Kampala High Court. Later on, the Respondents who had applied to court to be joined defendants were allowed and consequently, the suit as to the Plaintiffs/Applicants were ordered to add them onto the suit as Codefendants, with the Commissioner Land Registration. - 9/5/2014, the plaintiffs/Applicants Amended plaint filed an $[5]$ On encompassing the 4 added defendants/Respondents, together with the Commissioner Land Registration. - Following the Respondents' addition to the suit, they as defendants, on $[6]$ 4/6/2014 filed a joint written statement of defence (WSD). - Later, in 2018, the plaintiffs/Applicants vide M. A No.1564 of 2018 applied $[7]$ for further amendment of the plaint. - However, in a twist of events between 2018 and 2020, the main suit court $[8]$ file either lost its position and/or got missing but later resurfaced in Mubende High Court as a duplicate file vide MBD C. S No.034/2019. It was upon the intervention of counsel for the Plaintiffs/Applicants that the Mubende High Court duplicate was sent back to Kampala High Curt (Land Division) where it was re-named or given a fresh Registration Number as LD-HCCS No.200 of 2020.

- It was upon return of the suit file that the Applicants pursued the fixture of $[9]$ the pending application for further amendment of the plaint i.e, M. A No.1564/2018 which was on 16/9/2020 accordingly without any objection granted. The 'further amended plaint' was filed on 29/9/2020 and served upon the Respondents' advocates on 12/10/2020. The Respondents on the other hand filed their written statement of defence to the further amended plaint on $3/12/2020$ . - It is the contention of counsel for the Plaintiffs/Applicants that the $[10]$ Respondents' WSD to the 'further amended plaint' was filed out of the prescribed 15 days from the date of service of the amended pleadings hence the present application to have the WSD and Counter claim struck off for being incompetent on record.

# **Submissions of Counsel**

- [11] Counsel for the Applicants Mr. Protazio Byarugaba submitted that under O.6r.24 CPR, a reply to pleadings has to be filed within 15 days from the date of service. That in the instant case, the Respondents were served with the further amended pleadings on 12/10/2010 but they filed their WSD and Counter claim to the "further amended" pleadings on 3/12/2020 (after more than 40 days from the date of service of the amended pleadings upon them. - That on $15/3/2024$ , Counsel for the Applicants conceded to the validation $[12]$ of the late filing of the WSD but only contested the inclusion of the Counter claim and as a result, what apparently remained in contest was the validity of the counter claim. Counsel submitted that in this case, O.6 r.2 CPR gives a defendant in an action, to file a counter claim together with the WSD. That on 4/6/2024, when the Defendants/Respondents had been served with the original plaint and the initial amended plaint, the Defendants/Respondents never filed a Counter claim together with their WSD. Thus in M. A No.118 of 2023 Counsel is in his $2^{nd}$ sought order prays for the striking out of the Respondents'/ Defendants' Counter claim filed together with the validated WSD on 3/12/2020 in reply to the "further amended plaint" when initially they had no Counter claim. - Counsel for the Respondents, Mr. Kabega Musa on the other hand $[13]$ submitted that the Counter claim was instigated by the pleadings in the further amended plaint and that the Counter claim was not an amendment. That there is no rule in our Civil Procedure Rules that forbids a party replying to the amendment to include a Counter claim if it so necessitates. Relying on the authority of Kaiso Jack Vs Nyakaisiki Judith & Ors, HCCS

No.14 of 2020, counsel submitted that a defendant could include a counter claim in the reply to the amended plaint.

- [14] I do agree that if a counter claim is not filed at the time of filing of the defence, any filing of such requires leave of court, see also O.8 r.7 CPR and Kavuma & Anor Vs Stanbic Bank (U) Ltd, HCMA No.149 of 2013. Indeed, it is trite that a Counter claim is not a defence. It is a separate suit which if pleaded, requires court to consider it and make specific findings on it as a distinct action with distinct remedies. - [15] In the instant case, upon perusal of the initial pleadings, I find that when the Applicants/plaintiffs instituted their suit against the Respondents, they later on 9/5/2014 filed an amended plaint. The Respondents/defendants filed their WSD on 4/6/2024 without a Counter claim. It is when the the "further amended plaint" that the Applicants/plaintiffs filed Respondents/Defendants introduced a Counter claim in their defence. - [16] Whereas it is a novel argument, as counsel for the Respondents submitted that the counter claim was instigated by the pleadings in the "further amended plaint", in my view the "further amended" pleadings of the Applicants/plaintiffs required the Respondents to respond by amending only their pleadings i.e, WSD accordingly. The counter claim, a new suit was not part of their pleadings. - [17] Under O.6 r.19 & 24 CPR which govern the amendment of pleadings provides thus:

### "19. Amendment of pleadings

The court may, at stage of the proceedings, allow either party to alter or amend his or her pleadings in such 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."

## Then rule 24 provides thus:

### "24. Reply to amendment

Where any party has amended his or her pleadings under rule 20 or 21 of this Order, the opposite party shall plead to the amended pleadings or amend his or her pleadings within the time he or she then has to plead, or within fifteen days of the *service or delivery of the amendment...."*

Clearly, the rules refer to either party altering or amending his or her pleadings. In this case, the Counter claim was never part of the pleadings of the Respondents to be amenable to amendment.

- [18] As a result of the foregoing, I am not therefore persuaded by the reasoning in Kaiso Vs Nyakaisii (supra) that the amended plaint became the action referred to in O.8 r.1 CPR that entitled the defendants to include a counter claim in their amended WSD in the terms of O.6 r.19 CPR without requiring leave of court or that the leave granted to the plaintiff to file an amended plaint inherently included leave for the defendants to include a counter claim in their WSD, or that this is a procedural issue where there is no authority that applies to this particular scenario, or that there is no rule in the Civil Procedure Rules to the effect that in replying the amended plaint, the defendant cannot include a counter claim when it was not part of the original pleadings. - In my view, the fact is that there are authorities which apply to this scenario $[19]$ and they include, Steven Kavuma & Anor Vs Sanbic Bank (U) Ltd, HCMA No.149 of 2013, Bomah Hotel Ltd Vs UK Furniture (U) Ltd, HCCS No.0316 of 2017 and O.6 rr.19 & 24 CPR which clearly refer to "amendment of pleadings" and a Counter claim which never existed i.e, which was never pleaded in the original pleadings cannot be a pleading to be included in a WSD when the defendant is replying to an amendment. - [20] Besides, the amended plaint is usually expected to sustain the same cause of action as against the defendant since under the principles of amendment of pleadings, the amended plaint is expected not to introduce a new or distinct cause of action not pleaded in the original plaint, Mulowooza & Bros Vs Shah & Co. Ltd, SCCA No.26 of 2010. The defendant's right is therefore to reply to the amendment or amend his or her defence to suit the facts raised and not to include a Counter claim which is a separate suit with may be a different cause of action without leave of court. O.6 r.24 CPR does not envisage replying to an amendment by inclusion of a counter claim when in the first instance, it was never part of the original pleadings. - In conclusion, I find that the Respondents cannot under the cover of $[21]$ amendment of pleadings be permitted to amend their WSD in reply to the amended plaint by introducing a counter claim that never existed in their original defence i.e, never formed part of their pleadings. - The "further amended plaint" filed on 29/9/2020 is competently on record $[22]$ for it was allowed without objection having been duly served upon the Respondents on $12/10/2020$ i.e, in less than 14 days and the Respondents accordingly filed a reply and submissions. I find no injustice that has been shown that occasioned to the Respondents as argued that it was filed out of time authorised by court to do so. See Kampala District Union of People

with disabilities Ltd Vs Ziriyo Edson & 2 Ors, HCMA No.29/2015 [2015] UGHCLD 51.

[23] As a result, the defendants/Respondents' Counter claim filed on $3/12/2020$ without leave of court is found illegally and incompetently filed on court record, it is accordingly struck out with costs in M. S No.118 of 2023 (formerly LD-M. A No.1796 of 2021). M. A No.42 of 2014 (formerly LD-M. A No.1619 of 2022) is dismissed with no order as to costs since it has been concluded by consent of parties validating the WSD.

Order accordingly.

Dated at Hoima this 24<sup>th</sup> day of January, 2025.

**Byaruhanga Jesse Rugyema JUDGE**