Yesero Mugenyi v Abdul Nasser (Civil Application No. 239 of 2015) [2018] UGCA 248 (22 November 2018)


#### THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA

### AT KAMPALA

## CIVIL APPEAL NO. 239 OF 2015

(Appeal from the Ruling of the High Court (Kwesiga, J.) dated 3<sup>rd</sup> November, 2015 delivered in High Court Miscellaneous Application No. 447 of 2015 arising from High Court Civil Suit No. 87 of 2005)

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# Yesero Mugenyi :::::::::::::::::::::::::::::::::::: **VERSUS**

Abdul Nasser :::::::::::::::::::::::::::::::::::

Hon. Justice Geoffrey Kiryabwire, JA Coram: 20 Hon. Justice Hellen Obura, JA Hon. Justice Remmy K. Kasule, Ag. JA

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## RULING OF THE COURT

This appeal, with leave of the High Court, is against an order by the said High Court (Kwesiga, J.) allowing the respondent to amend the plaint to join another party and to include pleading of facts the respondent claims to have come to his knowledge after filing the The order, the subject of this appeal, was made suit.

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November, 2015 in Miscellaneous Application Number 447 of 2Ol5 arising from High Court (Land Division) at Kampala Civil Suit Number 87 of 2O05, still pending fina1 disposal in the High Court.

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The appellant, a lawyer, at the material time practising under the name and style of Mugenyi & Co. Advocates, represented at some material time, the respondent as regards the land property comprised in leasehold Register Volume 80 1 Folio 24, Plot 24 Kololo Hill Drive, Kampala, of which the respondent became registered proprietor on 11th Jartuary, 1974.

The respondent held some responsibility in the Military Government of Idi Amin. When this government was militarily driven out of power in 1979, the respondent went into exile in Kenya. 40

Thereafter, from about i98 1, the respondent through members of his family particularly his wife Mariam Nasser, instructed the appellant to evict the tenants who were occupying the respondent's said suit property and to rent it to alternative tenants. For this purpose the certificate of title of the suit property was handed over to the appellant. 45

The respondent returned to Uganda from exile in Kenya in 1985 and demanded from the appellant the certificate of title of the suit property but the sarne was not given to him by the appellant. The respondent then in 2003 carried out investigations and searches regarding the suit property and discovered that the suit property was no longer registered into his names as owner. He found that ort 2"d July 1982 the suit property had been registered into the names of one Regina Kabatabazi ald then on 22"d Janu 50 55

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it was registered into the narnes of the appellant as a gift from the said Regina Kabatabazi. Then later on, on 27Lh October, 2003 the appellant transferred the suit property to Messrs S&M Holdings Ltd, P. O. Box 1O67 1 Kampala.

On 10th Februaqr, 2005 the respondent, as plaintiff, had sued the appellant, as defendant, for fraudulent transfer and deprivation of his suit land property. This was through High Court Land Division at Kampala Civil Suit No. 87 of 2O05 Abdul Nasser vs Yesero

Mugenyi.

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The appellant as defendant, filed a defence to the said suit denying all the claims of the respondent.

On 5th June, 2015 the respondent, as applicant lodged in the High Court, Kampala, Miscellaneous Application Number 447 of 2015 arising out of the said High Court Civil Suit No. 87 of 2005 for an order that the High Court grants the respondent as applicant, leave to amend the plaint in High Court Civil Suit No. 87 of 2005 by joining Messrs S&M Holdings Ltd as a co-defendant to the suit and to include other relevant facts that had come to the knowledge of the respondent after frling in Court the said High Court Civil Suit No.87 of2O05. 70 75

The grounds for the application, as stated in the affidavit of the respondent, were that as from 19th November, 2014, the respondent's new lawyers, M/s Muhimbura & Co. Advocates, had found out that the suit property had been transferred by the appellant to Messrs S&M Holdings Ltd and therefore it was necessary to add the said S&M Holdings Ltd as a co-defendant to the said suit. Hence the necessity to amend the plaint in e suit. l

The respondent further asserted that the proposed amendments to the plaint would also include averments that there was fraudulent connivance between the appellant and Messrs S&M Holdings Ltd to defraud him of the suit property.

90 95 The appellant, through a sworn affidavit, opposed the application as being a mere abuse of Court process since the respondent had earlier on filed in the High Court Civil Suit No. 411 of 2004 over the same suit property and the same had been dismissed for want of prosecution. Further, the respondent had also lodged in the same High Court, Civil Application No. 823 of 2006 seeking to amend the plaint by adding Messrs S&M Holdings Ltd and Regina Kabatabazi to the suit, but then he, the respondent, had withdrawn the said application.

The appellant also contended that no new facts had been discovered by the respondent since from 2006 the respondent knew who the registered proprietor of the suit property was.

Finally, the appellant contended that the respondent had been caught by the law of limitation and as such the application to amend the plaint in High Court Civil Suit No. 87 of 2005 ought to be dismissed with costs.

105 On the 3.d November, 2015, the learned High Court Judge, His Lordship J. W. Kwesiga, delivered a Ruling in Miscellaneous Application Number 447 of 2015 whereby he allowed the respondent to amend the plaint in High Court Civil Suit Number 87 of 2005 by adding Messrs S&M Holdings Ltd as the second defendant to the suit and by also including other necessary 110

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averments in the plaint of the suit. He further ordered the costs of the application to be costs in the cause.

Dissatisfied with the above stated High Court Ruling, the appellant, with leave of the High Court granted on the 25,h November,2015, lodged this appeal to this Court. The trial of High Court Civil Suit Number 87 of 2OO5 was stayed. The said suit remains to date pending determination by the High Court. There are 5 grounds of this appeal, namely:

- 1. The learned trial Judge erred both in fact and in laut when he held that according to the proposed atnended plaint time stqrted running on 27/1O/2OO3. - 2. The learned trial Judge erred in fact qnd in lqw when he held that the Limitation Statute had not struck the plaintiffs right to seek to qmend his pleadings. - 3. The learned trial Judge erced in law when he failed to find that the srit as against the appellant qnd the proposed 2"d defendant could not be maintqined. in absence of an impeachtnent of and chq.llenge to the proprietorship of their predecessor-in-title one REGINA KABATABAZI the successor-in-title to the respondent. - 4. The leqrned trial Judge erred in lqw when he failed to Jind that the suit wqs time bqrred and dismiss the sqme. - 5. The leq.rned trial Judge erred in lqw when he Jailed to find that the respondent did not come to Court for his application for leque to qntend his Plaint hqnds. <sup>135</sup> lean

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On appeal iearned Counsel Didas Nkurunziza appeared for the appellant while Paul Muhimbura and Itaka Basaija were for the respondent.

Counsel for the respective parties to the appeal agreed and prayed Court to proceed to decide the appeal on the basis of the conferencing notes and written submissions filed in Court on behalf of the respective parties. This Court has thus proceeded to resolve the grounds of the appeal basing on the said conferencing notes and written submissions. 40 i45

Ground 1:

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The learned trial Judge is faulted under ground 1 of the appeal for having erred in law and in fact when he held in the ruling that according to the proposed plaint time as to when the cause of action of the respondent started running was on 27.1O.2OO3.

Appellant's Counsel submitted that from 1985 the respondent had been made aware of the disposal of the suit property, consequently the respondent's cause of action to challenge the transfer of the suit property had been extinguished under Section 5 of the 1ss Limitation Act and as such an amendment of the plaint to add another party would be in vain.

Counsel for the respondent, on the other hand, submitted that under Sections 2 and 25 of the Limitation act, the period of limitation begins to run as from the period the fraud is discovered. In this case the fraudulent dealings were found out by the respondent in 2003 and as such he was not caught by I ation by the time he filed the suit in Court. i

The learned Judge reasoned in his ruling that:

"According to the proposed amended plaint, the applicant states that it wcls lqte 2OO3 that he discovered that the 7"t respondent had transfeted tlrc suit land to the 2nd respondent thq.t on 27.7O.2OO3 is when the 2nd respondent was registered on the title. Titne started running on 27.7O.2OO3. This application was Jiled on 72th Mag, 2O75. Frorn 2Vh October, 2OO3 to 72th Mag, 2O75 a period of 72 gears had not elapsed. Bg the tirne of hearing the application on Sth October; 2075, the Linitqtion Statute's Act had not struck the plaintilfs entitlement to seek to amend bg adding the second defendant".

This Court has reconsidered and re-evaluated the facts that were presented before the learned trial Judge. We have also appreciated the law as to amendments. A proposed amendment must not be brought at such a late time in the proceedings so that to allow it would be unjust to the opposite party. An amendment brought before the hearing of the suit that does not prejudice the right of the opposite party and is intended to enable Court to determine the real issues in controversy between the parties should be allowed: See: Eastern Bakery vs Castelino [1958] EA 461.

We note that in the affidavit in support of the application, paragraph 4 thereof, and also in the proposed amended plaint, attached to the respondent's application, the respondent asserts that it was in March 2003 that he discovered the fraudulent acts that had been carried out as regards the suit pro The 185

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190 195 proposed 2na defendant Messrs S&M Holdings Ltd had also become fraudulently registered of the suit property on 27tn October, 2003. It is these alleged fraudulent acts that necessitate the amending of the plaint in the suit so as to add Messrs S&M Holdings Ltd as a second defendant to the suit and to assert in the plaint the particulars of the alleged fraudulent acts. o

We are satisfied in the circumstances that the trial Judge properly addressed himself as to the facts and the law when he held that according to the proposed amended plaint time started running on t}:e 27th October, 2003. We accordingly find no merit in ground <sup>1</sup> of the appeal. We dismiss the same.

Ground 2:

The essence of the complaint in this ground is that the trial Judge erred in holding that the plaintiff's (respondent) right to seek to amend his pleadings had not been barred by the Limitation Statute.

This ground 2 has some similarity with ground 1 of the appeal. Thus the already stated resolution of ground 1 of the appeal partly also resolves this ground 2.

2L0 The law as to limitation of a cause of action in land matters under the Limitation Act is that under Section 5 of the said Act, an action to recover land is barred from being instituted in a Court of law after the expiration of twelve years from the date the right of action is stated to have accrued. However, Sections 2 and 25 of the same Act allow extension of the limitation period in cases where the cause of action is founded on fraud. Section 25 of the Act specifically provides that where the right of action is concealed by 21-5

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fraud by any of the parties, or their agents to the suit, or through some mistake, then the period of limitation does not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it. The Supreme Court in Civil Appeal No. 4 of2OO4: Stanbic Bank Uganda Ltd -vs- Uganda Crocs Ltd has reiterated the above as the correct position of the law. See also: "LIMITATION OF ACTIONS" by Michael Franks, Sweet and Maxwell, 1959, page 2O2.

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230 This Court takes the view that, at this stage where only pleadings are being considered, and when no hearing of the case with evidence being adduced from witnesses has commenced in the case, the trial Court and this Court only rely on the pleadings filed or proposed to be filed in the suit to determine whether or not the pleaded action or the action, proposed to be pleaded, is time barred by limitation.

In paragraphs 12 and 13 of the original plaint in High Court Civil Suit No. 87 of 2005 the respondent asserted that he found out the alleged frauds as relate to the suit property in March 2OO3 and then he filed the suit in Court in 2005, and as such, his cause of action was not caught by the Limitation Act.

As regards the proposed amended plaint that the respondent attached to his Miscellaneous Application No.447 of 2015 seeking to amend the original plaint by adding on Messrs S&M Holdings Ltd as a second defendant, the respondent pleads in paragraph 5(k) of the proposed amended plaint that the respondent came to know that the said Messrs S&M Holdings Ltd fraudulently became registered proprietor of the suit properly on 27.1O.2O Hence I

the application to amend the plaint filed in Court on 12th May, 2015 and heard in Court on Sth October, 2OI5, and the Ruling granting leave to amend being delivered, according to the discretion of the Court, on 3rd November, 2015, does not make the respondent's cause of action to be time barred.

The above being the circumstances, which this Court has reevaluated and re-appraised, we see no basis for interfering with the holding of the learned trial Judge that: 250

> "Front 27h October, 2OO3 to 72th Mag, 2O75 a period of 72 gedrs had not elapsed.. Bg the tine of hearing oJthe application on Sth October, 2O15, the Limito'tion Stofi.tte's Act had not sttttck the plaintilfs entitlement to seek to amend bg adding the second defendant".

We accordingly find no merit in ground 2 of the appeal. The same also stands dismissed.

## 260 Ground 3:

This ground faults the trial Judge for having failed to find that the suit against the appellant and the proposed 2nd defendant i.e. Messrs S&M Holdings Ltd, could not be maintained in the absence of an impeachment of and challenge to the proprietorship of their predecessor-in-title one Regina Kabatabazi, the successor in title to the respondent as regards the suit property.

It is the contention of the appellant that any application to amend the plaint filed after March, 2015 attempting to resurrect the cause of action that the respondent had in 1985 or, at latest, in

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- z7o March 20O3, is therefore bad in law and time barred as no challenge can be made to the proprietorship of the suit property O without first successfully impugning the transfer of title to the said Regina Kabatabazi. - 275 280 In the considered view of this Court, having re-submitted the proceedings of the trial Court to a fresh scrutiny, the learned trial Judge considered the crucial issue that was material to the respondent's application to amend the plaint. This was that the respondent discovered in late 2OO3 that the appellant had transferred the suit property to Messrs S&M Holdings Ltd who became registered of the suit property on 27Lh October, 2003. - 285 This Court, like the trial Court, has not gone into the evidence of the parties, including how Regina Kabatabazi, came to be registered proprietor ofthe suit property or even whether she ever existed at all. These are aspects of the case that are to be proved or disproved with evidence at the trial of High Court Civil Suit Number 87 of 2005.

We accordingly find that the learned trial Judge did not in any way make any error when he failed to find that the suit as against the appellant and the proposed 2"d defendant, Messrs S&M Holdings Ltd could not be maintained in absence of an impeachment of and challenge to the proprietorship of their predecessor-in-title one Regina Kabatabazi. Accordingly ground 3 of the appeal also fails.

#### Ground 4

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In this ground 4 the appellant asserts that the trial Judge erred in law when the learned Judge failed to find that the suit was time barred and therefore the same ought to have been d 1S sed.

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Having reviewed and reconsidered the proceedings and Ruiing of the trial Judge, we note that the trial Judge appreciated the assertion that:

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"The Applicant uho is seeking recouery of the suit - land, hqs statedthatthe 2"d delendantis cunentlg the registered. proprietor oJ the s.l.rit lqnd and that it utas registered fraudulentlg through conniaance and fraud attributed to both the 7st ond 2nd defendant".

The learned Judge further considered the applicant's affidavit in support of the application to amend and the proposed amended plaint and annexures intended as exhibits in the head suit which, prima facie, indicated that Messrs S&M Holdings Ltd derived its registration from the appellant, a matter to be investigated in the main suit.

The trialJudge, on the basis of whatwas before him as the Court record, noted that High Court Civil Suit No. 87 of 2OO5 had had a long history of improper handling both by the Court system and the parties' legal representatives resulting in a lot of time being wasted. Then the learned Judge proceeded to absolve the applicant, now respondent, of blame in the delay of prosecution of the case.

The learned Judge properly directed himself as to the law and principles that guide Court, to grant or not to grant an application for amendment of pleadings. These are that the proposed amendment must not be brought late in the proceedings so that to allow such an amendment would cause injustice to 320

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/ party. An amendment sought before commencement of hearing of 3zs a cause should normally be accepted. Where an amendment seeks O to substitute a cause of action for another, or is intended to change the subject matter of the suit, then the discretion of the Court should be exercised in such a way that, subject to very sound reasons, such an amendment should be refused. Also an 330 amendment that prejudices the right of the opposite party existing at the date of the proposed amendment should also be refused. An amendment that is for the purpose of enabling Court to determine the real question in controversy between the parties and to avoid a multiplicity of proceedings, should be allowed.

33s The learned Judge while resolving the application also relied on the authorities of:

### Eastern Bakery vs Casterino (Supra)

Mohamed Kasasa vs Jasphar Buyonga Sirasi Bwogi: Civil Appeal No. 42 of 2OO8 (COA)

340 Dhanesvar V Mehta Manilala M. Shah [1963] EA

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# Hilton vs Sutton Steam Laundry lL946l IKB 61 at page 81.

The learned Judge then very carefully considered the facts and submissions from both the parties to the application before he concluded that:

"I haae considered. the rest of the a'pplico,tiort and I find this is aft appropriate case where the application to qmend th granted". <sup>e</sup>plaint should be granted o.nd it is rebg

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We find that the learned trial Judge properly directed himself as to the law and properly applied that law to the facts that were before him which he carefully analysed and reached the right decision.

We find no reason to interfere with the decision of the learned Judge. Ground 4 of the appeal is disallowed.

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Through this ground 5 the appellant asserts that the learned trial Judge erred when he did not find that the respondent was making the application to amend the plaint in High Court Civil Suit Number 87 of 2015 with unclean hands.

360 365 The appellant in submitting on this ground did not state the specifics under which he alleges that the respondent, as applicant to the application, pursued the application to amend the plaint with unclean hands. The appellant simply submits that the principle of equity provides that one cannot approbate and reprobate all at the same time.

370 We are unable to find, on the review of the facts that were before the trial Judge, that the respondent was guilty of approbating and reprobating all at the same time, when he lodged and pursued the application to amend the plaint by seeking to add Messrs S&lvI Holdings Ltd as a second defendant to High Court Civil Suit No. 87 of 2005. The fact that the respondent had lodged a similar application in another separate suit and then withdrawn the sarne, cannot per se, without more specific evidence amount to the respondent acting with un clean hands. We thus ltnd no specific instance proved where the learned trial Judge ought to have found the respondent to have come to Court with unclean hands while 1,4 4

pursuing this application to amend the plaint. There is therefore no merit at all in this ground of the appeal. We disallow the same.

We observe, with much regret, that many of the issues being raised in this appeal are matters that would be best handled in the full trial of High Court Civil Suit No. 87 of 2005, with all the parties to the suit giving evidence on those issues and then the trial Court reaching an informed decision upon the same.

Unfortunately due to an appeal like this one, on a rather an interlocutory matter, the main High Court Civil Suit No. 87 of 2005 has remained undetermined by the High Court for now a whole 13 years. This is very regrettable.

In conclusion all the grounds of appeal having failed, this appeal stands dismissed.

It is ordered that the High Court proceeds with speed to have High 390 Court Civil Suit No. 87 of 2005 determined. Accordingly the Registrar of this Court is directed to return all the relevant files relating to that suit as well as copies of those relating to this application and Ruling back to the High Court, Land Registry within a period of 7 days from the date of delivery of this Ruling. 395

Since the trial Judge did not give any period within which the respondent, then applicant, had to filed the amended plaint, this Court orders that the said amended plaint be filed and served upon the parties to that suit within a period of 30 days as from the date of delivery of this Ruling. Thereafter the parties to the suit shall file and serve their responses to the amended plaint in accordance with the appropriate Civil Procedure Rules applicable to the High Mu Court.

The respondent is awarded the costs of this appeal.

It is so ordered.

day of $12018$ . Dated at Kampala this....................................

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Geoffrey Kiryabwire Justice of Appeal

Hellen Obura **Justice of Appeal**

Remmy Kasule Ag. Justice of Appeal

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