Wancha and 8 Others v Onya (Miscellaneous Application 65 of 2023) [2024] UGHC 795 (28 August 2024)

The Republic of Uganda

In the High Court of Uganda Holden at Soroti

Miscellaneous Application No. 65 of 2024

# (Arising out of Land Civil Appeal No. 37 of 2022)

## (Arising from Kaberamaido Chief Magistrate Court Land Suit No.009 of 2014)

$5$

| | 1. Wancha Musa | | |----------------|-------------------------|---------| | | David Babalanda | | | | 3. Iddi Rwamutuju | | | $\overline{4}$ | Bazaala | | | | 5. Kiiza John | <b></b> | | | Asomo Beatrice | | | | 7. Opola Robert | | | | 8. Auma Majuma Margaret | | | | 9. Maraka John Stephen | | | | | |

### Versus

<pre>::::::::::::::::::::: Respondent</pre> Onya Silas ::::::::::::::::::::

# Before: Honorable Justice Dr. Henry Peter Adonyo

#### 25

## Ruling

# 1. Introduction:

The applicants brought this application by way of a Notice of Motion under Section 98 of the Civil Procedure Act Cap. 71, Section 33 of the Judicature Act, and Order 6 rules 19 and 31 of the Civil Procedure Rules for orders that:

a) Wancha Musa and Maraka John Stephen whose names appear as the 1<sup>st</sup> and 9<sup>th</sup> appellants be struck off as the said named persons names were included

in the Memorandum of Appeal for the Land Civil Appeal No.37 of 2022 by an honest typing error.

b) That the Memorandum of Appeal in Land Civil Appeal No.37 of 2022 be amended accordingly.

- c) Costs of this Application be provided for. - 2. Grounds of the application

The application was supported by the affidavit of Emesu Morris of C/o M/s Emiru Advocates & Solicitors, wherein he deposed the grounds upon which the application 40 is premised, he stated that:

- a) The law firm of M/s Emiru Advocates & Solicitors was initially instructed by Asomo Beatrice, Jamada Bazaala, David Balanda, Kiiza John, and Iddi Rwantuju but later joined by Opola Robert and Auma Majuma Margaret to appeal against the judgment and orders in the above-head Civil Suit. - b) At the time of preparing the Memorandum of Appeal, the names of all Defendants as appearing in the records of proceedings and Judgement were copied, including the names of two persons (Wancha Musa and Maraka John Stephen) who never approached the law firm to appeal on their behalf. - c) The inclusion of their names (Wancha Musa and Maraka John Stephen) was and remains an honest mistake of copying the names from the judgment and records of proceedings by the Law firm, and the same should be deleted from the list of appellants and the Memorandum amended accordingly. - d) The amendment sought herein does not prejudice the Respondent's case. - e) It is just, equitable and fair for this application to be granted as prayed.

#### 3. Reply of the Respondent:

The respondent in reply filed an affidavit which was deposed by Oematum Teckla care of M/s Isodo & Co in which she stated that:

- a) She deposed the affidavit in the capacity of a Legal Assistant with M/s Isodo & Co. Advocates, the lawyers representing the respondent herein, with full knowledge of the attendant facts. - b) Annexure "AD1" to the supporting affidavit is not understood as to what the applicants and their lawyers are doing, and it is a waste of courts time. - c) In case the court is inclined to grant this application, the costs of this application be met by the applicants.

#### 4. Representation:

The applicants were represented by M/s Emiru Advocates & Solicitors. The respondent was represented by M/s Isodo & Co. Advocates.

#### 5. Issues: 70

The applicants' counsel formulated two issues in their submissions, I find that they suffice for the resolution of the instant dispute and I will determine them concurrently. These are;

- a) Whether the application herein has merit? - b) What remedy is available? 75

#### 6. Submissions:

The parties argued the instant application by way of written submissions, which the court has had the benefit of studying, analysing, and considering concurrently with

the pleadings and annexures thereto. I have referred to the submissions wherever it is deemed necessary.

a) Applicants' submissions:

On issue one, counsel for the applicant submitted that where a misjoinder occurs, it becomes necessary to amend pleadings under Order 6 Rule 19 of the Civil Procedure Rules.

Counsel submitted that under paragraph 6 of the affidavit in support the inclusion 85 of names of Wancha Musa and Maraka John Stephen was an honest typing mistake which occurred at the time of formulating the Memorandum of Appeal, whereby the typist copied the names as appeared in the judgment of the lower court.

On the respondent's averment in their affidavit in reply, counsel submitted that annexure 1 to the affidavit is a copy of an interim memorandum showing that 90 originally, only the 1<sup>st</sup> five people approached the law firm of Emiru Advocates & Solicitors to be represented in the appellate court, and later two others joined them as explained under paragraph 2 of the Applicant's affidavit evidence in support of the application.

#### b) Respondent's submission: 95

Counsel for the respondent submitted that in view of the application and annexure "AD1" to the supporting affidavit, they did not understand what the applicants were saying. In their view, they left the court to make an appropriate decision but prayed for the applicants to bear the costs of the application.

### 7. Decision of Court:

This application was brought under Rule 19 of Order 6 of the Civil Procedure Rules. Under Order 6 Rule 19 CPR, which provides that the court may at any stage of the

- 105 - pleadings allow either party to amend in such manner and on such terms as may be just and such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

In Gaso Transport Services Ltd Vs Martin Adala Obene SCCA 4 of 1994, The Supreme Court laid out the following considerations to be taken into account by a court before allowing amendment;

- a) The amendment must not work an injustice to the other side. - b) Multiplicity of proceedings should be avoided as far as possible and amendments which avoid multiplicity should be allowed. - c) An application which is made malafide should not be granted. - d) No amendment should be allowed where it is expressly or impliedly prohibited by the law.

It is important to note that though Counsel, in his submission, hinted on Order 1 Rule 10 (2) of the Civil Procedure Rules, which is the correct law to proceed under where a party is seeking either to add or strike out a party in a suit, he had brought this application under Order 6 Rule 19 which is not the correct law to proceed under in the circumstances.

The procedure for striking or adding parties is provided for under Order 1 Rule 13 of the Civil Procedure Rules, which provides thus:

Any application to add or strike out, or substitute a plaintiff or defendant may be made to the court at any time before the trial by motion or summons or at the trial of the 125 suit in a summary manner.

In Balaba Emmanuel & 6 Others vs Maweije Hanifa (Administrator of the Estate of the late Sulaiman Mawejje) & Anor Miscellaneous Application No. 07 of 2021, the court opined that adding or striking off a party to pleadings, whether on application of the parties or on court's own motion, lies within the discretion of court. The discretion, however, has to be exercised judiciously based on sound principles.

Be that as it may, citing or proceeding under a wrong law is not fatal as long as what the party seeks is provided in law with Article 126(2)(e) of the 1995 Constitution of the Republic of Uganda providing a remedy to cure such lapses.

In a similar circumstance, I had the occasion to state this position of the law in an 135 Soroti Municipal Council vs Akello Juliet and Anor HCMA No. 014 of 2020.

I have considered the pleadings of both parties and the submissions on record. I have examined annexure AD1 to the affidavit in support and as stated in paragraph 2, it contains the names of the first appellants alleged to have approached the firm.

However, the applicant failed to attach the memorandum of appeal to the 140 application that shows the mistakenly added names of Wancha Musa and Maraka John Stephen, which the applicants seek this court to amend.

However, attached is a judgment of the lower court marked as annexure AD2. Upon perusal of the court file from which this appeal arose, I have found that it contained a memorandum received by the court on June 30, 2023. Indeed, this memorandum of appeal contains the appellants' names as those contained in the AD2 as

defendants in the lower court. It includes the names of Wancha Musa and Maraka John Stephen, which the applicants seek to strike out.

It should be noted that the applicants in such applications bear the legal burden to prove their allegations on a balance of probabilities pursuant to sections 101,102 150 and 103 of the Evidence Act Cap. 6.

In the case of Dr Chrispus Kiyonga vs Kahyana Jolly HCMA, No. 0071 of 2022, the court observed that;

"Section 101 of the Evidence Act provides that he who alleges must prove. Therefore, the allegations made by the applicant must be proved on the balance of probability and to the satisfaction of the court before the grant. In the event the standard is not met, the court retains the discretion to decline granting the same."

Although the failure to attach the memorandum of appeal was not fatal, the application arose from the main suit, which contained the impugned memorandum 160 of appeal, which this court has access to.

However, the respondent's failure to understand the case in this application, as alluded to in their submissions, was, in my view, bonafide since no such memorandum was attached.

- Be that as it may, the grounds upon which the application was premised are twofold; 165 - Lack of instructions from the two appellants sought to be struck off; and $(i)$ - Death of the 1<sup>st</sup> appellant (Wancha Musa) during proceedings in the lower $(ii)$ court. The allegation of death, as contained in paragraph 5 of the affidavit

in support, is not supported by documentary evidence of death, such as a death certificate, letters of administration or a personal representative of the estate.

To decide this application on such conjecture and speculation as to lack of instructions on appeal yet no proof of the instructions has been furnished to court or death of a party, without proof yet they are part of the appellants, would work an injustice on the parties who are sought to be struck out, especially when there is 175 no evidence that such an application was brought to their attention or to the attention of their personal representatives of their estates in case of death. Moreover, there is no affidavit of service of the application to all concerned that they have been served with the application in which their names are being sought to be struck out or service to their administrators. 180

Even where it is alleged that a party is dead, after the death of a party, the right of action may still survive that party, meaning that a legal representative to their estates would still have the right to be added as parties.

In this application, the applicant bore the burden to prove, among others, that the two appellants were not interested in pursuing the appeal or, in any case, that the 185 law firm had instructions from a few appellants and not those that they sought to strike out. The court cannot speculate that those sought to be removed are disinterested in the appeal simply because they did not give the present counsel instructions. Their lack of interest must be proved with proper service upon them and they deposing affidavits to that effect that they are no longer interested or by 190 the personal appearance in court and stating on oath that they are not parties.

The fact that there is no such affidavit of service on all the persons indicated in the memorandum of Appeal and given the fact that no request, by letter or appearance has been made by the persons whom counsel would want removed from the list of appellants, I would find and conclude that this Honourable Court has not been 195 presented with any compelling evidence to have the names of hereof of Wancha Musa and Maraka John Stephen whose names appear as the $1^{\rm st}\,$ and $9^{\rm th}\,$ appellants to be struck off on the basis that the said named persons names were included in the Memorandum of Appeal for the Land Civil Appeal No.37 of 2022 by an honest typing error. That fact has not been proved as this application does not contain grounds supported by sufficient evidence on balance of probabilities to warrant striking off the two appellants.

Accordingly, without sworn evidence of the mentioned parties or their representatives, I would be reluctant to, on the basis of only the allegation by counsel, that some of the named appellants and not those to which this application 205 wishes to be struck off gave instructions to counsel and thus should be removed.

That assertion must be made based on concrete evidence to that fact, which is lacking.

Accordingly, I would find that this application lacks merit and would be dismissed with costs to the respondent. 210

I so order.

Hon. Justice Dr Henry Peter Adonyo

28<sup>th</sup> August 2024

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