Zam Zam Zahara v Mwima and Another (Civil Suit 5 of 2016) [2024] UGHC 902 (30 September 2024)

Full Case Text

#### THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA HOLDEN AT MBALE

## **CIVIL SUIT NO. 0005 OF 2016**

# ZAM ZAM ZAHARA ::::::::::::::::::::::::::::::::::

#### VERSUS

## 1. MWIMA FAISAL ::::::::::::::::::::::::::::::::::::

### 2. DEPARTED ASIAN PROPERTY CUSTODIAN BOARD

## RULING ON A PRELIMINARY OBJECTION

## 1. Background

- 2. The Plaintiff initially sued a one James Muleme alone as per the original plaint and the Defendant for that matter filed his written statement of defence. However, she later added the Departed Asian Property Custodian Board as per the amended plaint which also filed its written statement of defence. The hearing started and the parties were instructed to file their witness statements by court which they did and the matter was adjourned for scheduling and hearing on 17th of December, 2019. - 3. At the hearing of $3^{rd}$ of March, 2021, in the presence of the Plaintiff and his Counsel together with the 1st Defendant and his Counsel, the matter was adjourned to 20th of April, 2021 for scheduling. Directions to the parties to file trial bundles and joint scheduling memorandum were also issued. - 4. On $21^{st}$ of April, 2021 in the absence of the Defendants and their counsel, counsel for the Plaintiff indicated to court that the witness statements had been filed and requested for more time to do the scheduling. The matter was then adjourned to 7th of September, 2021 for scheduling. - 5. However, at the hearing of 19th of October, 2021, court was informed by Counsel James Gyabi for the 1st Defendant (James Muleme) that his client died. Counsel further submitted that; "I am still seeking better

instructions in respect of my client and consult with the family for a legal *representation.*"

- 6. Still at the hearing of 3rd March, 2022 counsel James Gyabi for the 1st Defendant indicated that he had not yet got the legal representative for the 1st Defendant. Court ordered that the Legal representative be appointed under Order 24 rule 4 of the CPR. - 7. Counsel for the 2nd Defendant submitted that the 1st Defendant was a tenant of the Custodian Board and he relinquished his rights to the 3rd party. If the 1st Defendant has died, the matter can still proceed against the board. The matter was then adjourned to $19^{th}/05/2022$ for hearing. - 8. The first Defendant currently (Mwaima Faisal) then instituted Miscellaneous Application No. 130 of 2022 to be substituted as the 1st Defendant in this suit. After substitution, the 1st Defendant then instituted Misc. Application 362 of 2023 for leave to amend the written statement of defence and the same was granted hence the preliminary objection.

#### 9. Legal representation

Counsel Odele Anthony represented the Plaintiff, Counsel Iman Ali 10. represented the $1^{st}$ Defendant and the $2^{nd}$ Defendant was represented by Joshua Serugendo though he was absent.

#### **11.** Submission

Court proceeded by way of written submissions and all the parties $12.$ complied.

#### $13.$ **Determination of court**

- 14. The law is that amendment should be allowed by court at any stage of the proceedings for as long as it does not cause injustice to any party. - 15. Order 6 rule 19 of the Civil Procedure Rules SI.71 provides that-

"The court may, at any 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."

$\overline{2}$

#### 16. In the case of Eastern Bakery V. Castelino [1958] EA 461 Sir Kenneth O'Connor stated that-

*Amendments to pleadings sought before the hearing should be freely allowed, if they can be made without injustice to the other* side and ... there is no injustice if the other side can be *compensated by costs ... the court will not refuse to allow an amendment simply because it introduces a new case ....but* there is no power to enable one distinct cause of action to be *substituted for another ... the court will refuse leave to amend* where the amendment would change the action into one of *a substantially different character... or where the amendment* would prejudice the rights of the opposite party existing at the date of the proposed amendment e.g. by depriving him of $a$ *defence of limitation.*(Emphasis added)

- In Ntungamo District Council V. Karazarwe (1997) 111 KLR 52, 17. it was stated that "an amendment should not cause an injustice to the opposite party or introduce an entirely different case". - In the present case as already indicated in the preamble of this 18. ruling the current 1st Defendant was substituted with the original James Muleme whom the Plaintiff had sued but died in the middle of the hearing. After the substitution, the 1st Defendant now, sought leave of court to amend the written statement of defence. - I have looked at the original written statement of defence and the 19. amendment which Mr. Mwaima Faisal seeks to make. In the amendment, Mr. Mwaima Faisal has introduced new facts which create third party rights that were not present in 2016 when the Plaintiff sued the late James Muleme. In other words, the substituted party is seeking to protect his own interests in the suit property but not the interests of the deceased which was the intention of the substitution. - Order 24 rule 4 (1) of the Civil Procedure Rules provides that-20.

"*Where one of two or more defendants dies and the cause of*" action does not survive or continue against the surviving defendant or defendants' alone, or a sole defendant or sole

surviving defendant dies and the cause of action survives or continues, the court, on an application made for the purpose, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit." (Emphasis added)

- 21. Therefore, in the instant case, upon the death of the late James Muleme, the person who ought to be substituted in his place was supposed to be his legal representative for avoidance of delaying the suit, section 214 of the Succession Act Cap 268 gives court powers to appoint an administrator for purposes of the suit. - 22. In the circumstance, since Mr. Mwaima Faisal is not the legal representative of the late James Muleme, he ought not to have been substituted for the late. - Mr. Mwaima Faisal's interests are different from those of late James 23. Muleme following the cause of action in the Plaintiff's Plaint. What Mr. Mwaima Faisal is seeking are third party rights which were created during the hearing of this suit. I find this was erroneous. - The intention of the substitution was to have Mr. Mwaima Faisal 24. enforce the rights of the deceased but not third party rights which were created during the hearing of this suit. - As you may release, at the point when late James Muleme died, the 25. matter had been adjourned for scheduling and hearing. This means that the filing of the pleadings and the witness statements was completed as indicated in the preamble of this ruling. - In light of the above, the amendment which Mr. Mwaima Faisal 26. seeks to make will cause injustice to the Plaintiff as well the $2nd$ Defendant. - If Mr. Mwaima Faisal wanted to be a party to this suit, he ought to 27. apply to be added as a party to the suit but not to be substituted for the deceased. - Counsel Peter Masaba for the 2nd Defendant in the proceedings of 28. 3rd of March, 2022 submitted that if the 1st Defendant has died, the

$\Delta$

matter can still proceed against the board and the matter was adjourned to 10th of May, 2022 for hearing.

- It follows therefore, that in alternative that the legal representative $$ of late James Muleme cannot be found, the suit can still proceed as against the 2nd Defendant alone. (See: Order 24 rule 2 of the Civil **Procedure Rules.)** - 30. In the final result, the preliminary objection is upheld in the terms below- - (a) The $1^{st}$ Defendant's amended written statement of defence is rejected. - (b) Mr. Mwaima Faisal shall be struck off the court record since he is not the legal representative of the late James Muleme. - (c) The legal representative of the late James Muleme once appointed shall be added as a party to this suit. - (d) Alternatively, if the legal representative cannot be found, the suit shall proceed against the $2^{nd}$ Defendant alone.

I so order.

**LUBEGA FAROUO** Ag. JUDGE Ruling delivered via the emails of the parties on 30th of September, 2024.