Twangyeirwa v Kawezi and Another (Civil Appeal 46 of 2023) [2024] UGHC 1059 (7 November 2024)

# **THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT FORT PORTAL** 3 **CIVIL APPEAL NO. 0046 OF 2023 (ARISING FROM MISC. APPLN NO. 0005 OF 2023) (ORIGINATING FROM LAND CIVIL NO. 06 OF 2021)** 6 **TWONGYEIRWE AISHA ::::::::::::::::::::::::::::::::::::::::: APPELLANT VERSUS**

### **1. KAWEZI ZUBAILI**

# 9 **2. KAHATI HALIMA :::::::::::::::::::::::::::::::::::: RESPONDENTS BEFORE: HON. JUSTICE VINCENT WAGONA JUDGMENT**

#### 12 **Introduction:**

This appeal arises from the ruling of His Worship Ahimbisibwe Innocent in Civil

- 15 Misc, Application No. 005 of 2023 where he declined to grant to the appellant leave to amend her written statement of defense and for her to re-open her case. The appellant seeks orders of court setting aside the ruling of the trial Court in Misc. - 18 Application No. 05 of 2021 and for an order allowing the appellant to amend her written statement of defense

### 21 **Grounds of Appeal:**

The appellant framed two grounds of appeal thus:

24 **1. The learned trial Magistrate erred in law and fact when he held that there was inordindate delay in filing Misc. Application No. 005 of 2023 arising from Civil Suit No. 06 of 2021 thereby causing a miscarriage of justice.**


**2. The learned trial magistrate erred in law and in fact when he held that there was no sufficient explanation or justifiable reason for filing Misc.** 3 **Application No. 005 of 2023 arising from Civil Suit No. 06 of 2021 after 19 months from the date of filing the written statement of defense.**

#### 6 **Representation and Hearing:**

M/s Mubiru & Aruho Advocates Associated Advocates represented the appellant 9 while M/s Moogi Brian & Co. Advocates represented the respondent. Both counsel addressed me on the merits of the appeal by way of written submissions which I have duly considered herein.

#### **Submissions for the Appellant:**

- 15 The learned trial Magistrate erred when he declined to grant leave to the appellant to amend and to have her case re-opened. In *Tolit v Otto, High Court Revision Application No. 02 of 2019* court noted that in deciding whether court should orders 18 for re-opening of the case, it ought to be guided by: whether the fresh evidence was not available during trial and was later discovered; whether there has been inadvertent error; whether there has been misapprehension of facts or the law. - 21

The appellant averred that she forgot to plead the fact that she bought part of the suit land from Nantale and to lead evidence of Leo Wakulira and Hadija Bikirwa 24 who gave Kiviri consent to sale the land. She also desired to tender in an agreement where her husband bought the said land from. It was clearly ascertainable from the

pleadings that there was misapprehension of facts and inadvertent error warranting

27 grant of an order to have the appellant's case re-opened.


#### **Submissions for the Respondent:**

- 3 The appeal is frivolous and an abuse of court process. The grounds of appeal were raised without reasonable basis in law or equity and not supported by any argument in good faith. The prior history of the suit shows that the appeal has no merits and - 6 ought to be struck out.

The trial court rightly rejected the application by the appellant for leave to amend 9 the written statement of defense and to re-open her case. The application was filed after the case was heard and locus conducted. The application was brought malafide in attempt to fill gaps in the appellant's evidence. It would be unfair to allow

- 12 the appellant to freely amend the written statement of defense and lead new evidence after closure of her defense. The application was filed late and ought to be rejected (*ZaverioNdabahwereze v MTN (U) Ltd & 2 ors, HCMA No. 094 of 2023)*. - 15

The case of **Tolit (supra)** does not apply to the facts before court. In this case, the appellant was aware of the documents she intended to present in court and the 18 witnesses. She waited till court visited locus to present such application. The trial Magistrate rightly rejected the same.

## 21 **Duty of this Court: Consideration of the Appeal:**

- 24 The Respondents filed land Civil Suit No. 6 of 2021 against the appellant for a declaration that they are the owners of the plot at Bukurungo Ward, Bukurungo Town Council, Kyegegwa District which they claim they bought from Kiwanuka - 27 Hussein, Kambale and Kayunnya B in 2015. The land originally belonged to Byaruhanga Kyoma, a brother to Kambale Mustapha and Hussein Kiwanuka.


Byaruhanga had a dispute over the said plot by Muhamaddi Sentongo but passed on before conclusion of the suit. Later the family of Sentongo and Byaruhanga settled

- 3 the dispute. That later Sentongo sold to the three people they bought from. That they took possession and in 2017, the defendant claimed ownership of the same. - 6 The defendant in her written statement of defense contended that she bought the suit land from Kiviri and his living wife Mariat Naiga in 1993 and had been using the said land for decades. That after the death of her husband in 2015, the Respondent - 9 started intermeddling with the estate by introducing Sentongo Muhammad who was not known to the defendant. That she was in possession of the land in dispute save for the part where after the death of her husband she was denied access. - 12

The Respondents led their evidence and closed and the appellant also led her evidence and closed. Court went ahead and conducted a locus in quo and it was after

- 15 locus that the application for leave to amend and open the defense case was made by the appellant. The trial magistrate after evaluating the evidence rejected the application on account that it was brought at a late stage of the suit. The appellant - 18 being aggrieved lodged this appeal.

### **Point of Law:**

- 21 Learned counsel for the Respondent attempted to raise a point of law that the current appeal was frivolous but failed to contextualize the point of concern. The point of law was vague. I thus overrule the same. - 24

### **Merits of the appeal:**


## **1. Whether the learned trial magistrate erred in denying the appellant leave to amend her written statement of defense.**

Order 6 rule 19 of the Civil Procedure Rules vests Court with the discretion to grant leave to the parties to amend pleadings at any stage of the proceedings for purposes 6 of determining the real questions in controversy between the parties.

The long settled position which was exposited by the Supreme Court in *Muwolooza*

9 *& Brothers v N Shah & Co Ltd (Civil Appeal No. 26 of 2010) [2011] UGSC 112 (14 November 2011)* is that amendments of pleadings should be allowed freely as long as the opposite party can be compensated by an award of costs and no injustice

12 shall be occasioned by such amendment. The spirit rooted in allowing amendments freely is pegged on article 126(2)(e) of the constitution that enjoins court to determine cases without undue regard to technicalities.

Different authorities refer to the following considerations:

- (a) Amendment should be allowed where it is intended to avoid multiplicity of 18 suits. - (b)An amendment should not be permitted where it seeks to fundamentally change, alter and substitute the nature and character of the suit from the one - 21 presented at first. - (c) An amendment shall not be allowed where it causes injustice or prejudice to the opposite party or deprives the opposite party of a defense available to him 24 or her like limitation and none disclosure of a cause of action. - (d)An amendment shall be denied where the additional cause of action or facts can be competently adjudicated in a different or separate suit than the one 27 before court.


- (e) An amendment shall not be allowed which is sought mala-fide, that is to frustrate the quick disposal of the suit or rectify the defects created through 3 cross examination or points of law.

(f) An amendment shall not be allowed where it is prohibited by law.

The above consideration notwithstanding, the dominant position is that court should 6 grant an amendment freely at any stage of proceedings.

In the present suit, the appellant filed an application to amend the defense after 9 conclusion of the hearing and locus visit. She sought to amend the defense and include the fact that she purchased part of the suit land from Nantare who is a daughter to Kayondo and had been in possession. She also sought to tender an 12 agreement where she bought the said land from as an exhibit and lead testimonies from Leo Wakulira and Nantale. This evidence and witnesses had not been mentioned in the written statement of defense, at scheduling, and in court 15 testimonies. The appellant did not plead that she could not by any reasonable means present facts regarding acquisition of part of the suit land from Nantale. She did not plead that she had been unaware of the said agreement of sale between her and 18 Nantale to warrant pleading such facts at a late stage of the proceedings. I am inclined to believe and find that the application for leave to amend was made malafide with a view of filling the gaps created during trial and grant of such leave 21 would have a consequential effect of occasioning an injustice to the respondents. There is no sufficient cause presented for the delayed presentation of the application up to the time when both parties had led all their known evidence and after court 24 conducting locus. I thus agree with the finding of the learned trial Magistrate that the application for leave was made with inordinate delay and there was no sufficient

cause fronted by the appellant. Therefore, I resolve this in the negative.


# **2. Whether the learned trial magistrate erred in denying the appellant an** 3 **opportunity to re-open her case and lead evidence of more two witnesses and other documents.**

- 6 The power to order re-opening of a case either by the defendant or plaintiff is discretionary. This power should be exercised judiciously taking into consideration the reasons to call for a re-opening, the consequences of allowing such on the right - 9 to a fair and speedy trial, the likely prejudice to be suffered by the opposite party among other considerations. - 12 As regards re-opening of a case to lead new evidence, court should examine in detail relevance of such evidence on the questions it is called upon to pronounce itself, the reasons why such evidence has been brought at a late stage of the trial, whether or - 15 not such evidence is intended to fill specific gaps or omissions created in the evidence already on record, whether such evidence is in line with the pleadings presented by the parties, the likely injustice or prejudice suffered by the opposite - 18 party and whether or not it is in the ends of justice to allow such additional evidence. (See also: **Simba Telecom –V- Karuhanga & Anor (2014) Ughc 98).** - 21 In the present case, the appellant led all their evidence in the main suit. The opposite party also led all their evidence. Thereafter, court concluded a locus visit. The trial Magistrate having declined to grant leave to amend, was justified not to allow fresh - 24 evidence from two new witnesses since they were intended to prove the sale between the appellant and Nantale which was the subject of the proposed amendment. I therefore find no fault in the trial Magistrate declining to grant leave to the appellant


to lead fresh evidence from her two new witnesses. I thus resolve this issue in the negative.

Consequently, I find no merits in both grounds of appeal. I thus dismiss this appeal with costs to abide the outcome of the pending suit at Kamwenge. The lower court

6 file shall be returned to Kamwenge Chief Magistrate's Court for the trial Magistrate to conclude the matter. I so order.


9 Vincent Wagona **High Court Judge FORTPORTAL** 12 **DATE: 07/11/2024**