Zena Shaban and 4 Others v Kezaabu and Others (Miscellaneous Application 29 of 2024) [2024] UGHC 401 (31 May 2024)

### **THE REPUBLIC OF UGANDA**

| | IN THE HIGH COURT OF UGANDA AT FORT PORTAL | |----|---------------------------------------------------------------------------------| | 3 | MISC. APPLICATION NO. 0029 OF 2024 | | | (ARISING FROM HCT –<br>01 –<br>CV –<br>LD NO. 18 OF 2022) | | | 1.<br>ZENA SHABAN FADUL | | 6 | 2.<br>KHALID SHABAN | | | 3.<br>KASWIITI VENNIE | | | 4.<br>SAIDI UMAR | | 9 | 5.<br>JALIA BIRUNGI :::::::::::::::::::::::::::::::::::::::::::::::: APPLICANTS | | | VERSUS | | | 1.<br>KEZAABU FATHILA SHABAN | | 12 | 2.<br>MBABAZI AMINA SHABAN | | | 3.<br>FATUMA HUSSEINI SHABAN | | | 4.<br>BIRUNGI REHEMA SHABAN | | 15 | 5.<br>NASURU SHABAN ::::::::::::::::::::::::::::::::::::::::: RESPONDENTS | | | AND | | | RATIB SHABAN ::::::::::::::::::::::::::::::: DEFENDANT/RESPONDENT | | 18 | BEFORE: HON. JUSTICE VINCENT WAGONA | | | RULING |


#### **Introduction:**

The applicants commenced this application under Order 1 rule 10(2) and 13 of the 3 Civil Procedure Rules, Section 98 of the Civil Procedure Act and Section 33 of the Judicature Act for orders that:

- **1. The applicants be added as defendants to Civil Suit No. 18 of 2022.** - 6 **2. That costs of taking out the application be provided for.**

## **Grounds of the Application:**

- The application is supported by the affidavits of Zena Shaban Fadul (1st 9 applicant), Khalid Shaban (2 nd applicant), Kaswiiti Vennie (3rd Applicant) and Birungi Jalia (5th applicant) who deposed as follows: - 1. That the late Fadhul Shaban, father to the 1st and 2nd 12 applicants and grandfather to the 3rd and 5th applicants passed away on in 2003. That the plaintiffs in Civil Suit No. 18 of 2022 are siblings of the 1st and 2nd applicant and uncles and aunties to the 3rd and 5th 15 applicants. - 2. That the late Fadhul Shaban left a document expressing his wishes on how his estate was to be managed after his death dated 13th October 2022 but they 18 were informed that the same did not pass the test of a valid will. That in the said will, the defendant was appointed as heir of the late but could not act as such since the will is invalid. - 3. That the late and the mother of the 1st 21 applicant had children who passed on and these were Abdul Shaban, Ramlat Shaban, Zalika Shaban while Fazil Shaban is still living. That Abdul Shaban and Zalika left children who include - the 5th 24 applicant.


- 4. That the deceased left properties some of which have been sold off by the plaintiffs without consideration of other beneficiaries under the estate. That 3 the only remaining estate is land at Kamengo measuring approximately 6 and a half acres. That majority of the beneficiaries under the estate of the late Fadhul Shaban were excluded from the proceedings in Civil Suit No. 18 of 6 2022 to their prejudice. - 5. That the late had more than one wife and each had her own homestead. That for the land at Kamengo, it was the grandmother of the 3rd applicant who owned and used the same. That the 3rd 9 applicant stayed with her grandfather till his death in 2003 and after his passing, continued living with the grandmother on the said land. The 5th applicant has been living on the land at Kamengo with the 1st 12 applicant and thus they claim an interest in the estate as beneficiaries in the land at Kamengo which was illegally distributed. - 6. That there are pertinent issues which were not clearly brought out in the suit 15 and thus the presence of the applicants as defendants is necessary since some beneficiaries have been excluded from benefiting from the estate. - 7. That the decision in Civil Suit No. 18 of 2022 has a consequential effect on 18 the beneficial interests of the applicants and other beneficiaries who have been sidelined from benefiting from the estate of the late Fadhul Shaban.

#### **Reply of the Respondents:**

- The application is opposed by the by 1 st, 2nd and 3rd 21 Respondents who averred as follows: - 1. That the application and the supporting affidavit contain material 24 falsehoods and thus should be rejected with costs. That the plaintiffs have no cause of action against the applicants for them to be added as defendants to


Civil Suit No. 18 of 2022. That the plaintiff have a right to choose who to sue and thus should not be forced to sue the applicants.

- 3 3. That the Respondents consented with the defendant in Civil Suit No. 18 of 2022 and cannot be dragged into endless litigation through the application at hand. That adding them would mean the plaintiffs would be seeking a 6 beneficial interest from them which is not the case. - 4. That the applicants have no claim against the Respondents and if they wish to seek a beneficial interest, they should do so through a suit against the 9 defendant or any person denying them their interests. - 5. That the applicants though not parties to the suit, duly participated in the meeting which arrived at the consent agreement in Civil Suit No. 18 of 2022. That the 1st 12 applicant is not a biological child of the late nor was she a dependent of the late at the time of his death. That the 4th applicant also claims no interest in the estate of the late while the 5th is a daughter of the late Abdul 15 Shaban who was allocated plot 5 per the consent together with her other siblings. - 6. That the current application was brought in bad faith and designed to frustrate 18 the amicable settlement between the plaintiffs and the defendant in Civil Suit No. 18 of 2022.

## **Rejoinder of the Applicants:**

- In rejoinder, the 1 st 21 applicant contended thus: - 1. That she was born in 1943 at Kamengo as a daughter of the late Shaban Fadhul and Maka Shaban. That she grew up and was married off by the said parents. 24 That after the death of her husband in 1979, she returned home to her parents


and stayed on the parents' land to date. That the 1st to the 5th Respondents were born much later and are younger than her.

- 2. That the 3 3 rd Applicant is her daughter who was born at Kamengo and brought up by the late Fadhul who was the biological father of the 1st applicant. That the Respondents have no authority to determine her paternity and all children 6 of the late Shaban Fadhul are beneficiaries under his estate. - 3. That the said consent is illegal since it seeks to exclude some of the beneficiaries under the estate and seeks to ratify an illegal distribution that 9 was conducted by the parties.

**Legal Representation and hearing:**

**Mr. Nyakaana Patrick** appeared for the Applicants while *Mr. Mugisa Richard Rwakatooke* appeared for the 1 st, 2nd and 3rd 12 Respondents (herein referred to as Respondents). Mr. Nyakaana filed written submissions which were served upon learned counsel for the Respondent who did not file his submissions in reply. I have 15 thus considered the pleadings of the parties and the written submissions for the

applicants.

## **Issues:**

- 18 The current application raises two pertinent issues: - **1. Whether the applicants should be added as defendants to Civil Suit No. 0018 of 2022?** - 21 **2. What remedies are available to the parties?**

# **CONSIDERATION OF THE APPLICATION:**


Order 1 rule 3 of the Civil Procedure Rules provides that; *All persons may be joined as defendants against whom any right to relief in respect of or arising out of the*

- 3 *same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where, if separate suits were brought against those persons, any common question of law or fact would arise.* - 6

Rule 10(2) of the same order provides among others that court can order any person whose presence before the court may be necessary in order to enable the court 9 effectually and completely adjudicate upon and settle all questions involved in the suit, to be added. Rule 5 adds that it shall not be necessary that every defendant shall

be interested in all the relief claimed in any suit against him or her. Rule 10 and 5 of

12 Order 1 gives Court the absolute discretion to add any person as a defendant where the presence of such person is necessary or where the claim by the plaintiff would ordinarily fall against him or her or where the decision to be made has a 15 consequential effect on his or her interest.

The power to order for addition or substitution of a party is discretionary and Court 18 should only invoke the same in deserving circumstances. In *Departed Asians Property Custodian Board vs. Jaffer Brothers Ltd [1999] 1 EA 55* court guided in relation to joinder of a defendant to a suit thus;

21 *"A clear distinction is called for between joining a party who ought to have been joined as a defendant and one whose presence before the Court is necessary in order to enable the court effectually and completely adjudicate* 24 *upon and settle all questions involve in the suit. A party may be joined in a suit, not because there is a cause of action against it, but because that party's presence is necessary in order to enable the court effectually and completely*

 *adjudicate upon and settle all the questions involve in the cause or matter…For a person to be joined on the ground that his presence in the suit* 3 *is necessary for effectual and complete settlement of all questions in the suit one of two things has to be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that* 6 *person, and that it is desirable, for avoidance of multiplicity of suits, to have such a person joined so that he is bound by the decision of the Court in that suit. Alternatively, a person qualifies,(on an application of a Defendant) to be* 9 *joined as a co-defendant, where it is shown that the defendant cannot effectually set a defence he desires to set up unless that person is joined in it, or unless the order to be made is to bind that person."*

12 In *Amon v Raphael Tuck and Sons Ltd 1056 1 ALL ER 273* court further guided thus:

"*A party may be joined in a suit not because there is a cause of*

- 15 *action against it, but because that party's presence is necessary in order to enable the court effectively and completely adjudicate upon and settle all the questions involved in the cause or matter."* - 18 I have also been persuaded to adopt the reasoning by the Court of Appeal of Kenya in the *Civicon Limited vs. Kivuwatt Limited and 2 Others [2015] eKLR,* where court unanimously observed as follows: - 21 *"Again the power given under the Rules is discretionary which discretion must be exercised judicially. The objective of these Rules is to bring on record all the persons who are parties to the dispute relating to the subject matter,so* 24 *that the dispute may be determined in their presence at the time without any*


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*protraction, inconvenience and to avoid multiplicity of proceedings. Thus, any party reasonably affected by the pending litigation is a necessary and* 3 *proper party, and should be enjoined…from the foregoing, it may be concluded that being a discretionary order, the court may allow the joinder of a party as a defendant in a suit based on the general principles set out in*

6 *Order I rule 10 (2) bearing in mind the unique circumstances of each case with regard to the necessity of the party in the determination of the subject matter of the suit, any direct prejudice likely to be suffered by the party and the* 9 *practicability of the execution of the order sought in the suit, in the event that the plaintiff should succeed. We may add that all that a party needs to do is to demonstrate sufficient interest in the suit; and the interest need not be the kind* 12 *that must succeed at the end of the trial." (Emphasis is mine).*

The Court of Appeal in Tanzania in *Tang Gas Distributors Ltd vs. Said & Others [2014] EA 448* also gave a persuasive dicta as regards addition of a defendant to a 15 suit thus:

*"the power of the court to add a party to proceedings can be exercised at any stage of the proceedings; that a party can be joined even without applying;* 18 *that the joinder may be done either before,or during the trial; that it can be done even after judgment where damages are yet to be assessed; that it is only when a suit or proceeding has been finally disposed of and there is nothing* 21 *more to be done that the rule becomes inapplicable; and that a party can even be added at the appellate stage." (Emphasis is mine).*

*Angima J* in *Sammy Kanyi Kareithi vs. Barclays Bank of Kenya & 2 others; Ross* 24 *Xavier Whithey (Applicant) [2021] eKLR* commented on the effect of delay to seek an order to add a party on the merit of such application thus:


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*"Firstly, the court is empowered to join a party to a suit at any stage of the proceedings with or without an application by any party. Secondly, the mere* 3 *delay in filing an application for joinder is not fatal. The pending suit is yet to be heard and the Plaintiff has not demonstrated what prejudice it has suffered by the late filing of the application. In the case of Central Kenya* 6 *Limited v Trust Bank Limited and 5 Others [2000] eKLR, the High Court had declined to grant leave to the Appellant to amend its plaint and to join additional Defendants to the suit. In allowing the appeal, the Court of Appeal* 9 *held that mere delay was not sufficient ground for declining leave unless such delay was the kind which could prejudice the adverse party beyond compensation in costs."*

- 12 The dominant position therefore is that court should grant leave to add a party as a defendant where the presence of such party is required or where he or she will be affected by the decision to be made by Court. Such power may be exercised at any - 15 stage of the proceedings before the final judgment is made by court. Therefore, leave should only be denied where in Court's assessment the presence of such person as a defendant is not necessary or where he or she claims no interest in the subject matter - 18 or a busybody to the proceedings.

In the current application, the Respondents filed Civil Suit No. 0018 of 2022 against Ratib Shaban seeking orders among others, a declaration that the deceased (late

- Shaban Fadulu) died intestate and the will dated 13 21 th October 2002 is not a valid will; a declaration that the plaintiff as children of the late are beneficiaries on land at Kamengo A Cell, Njara Parish, East Division, Fort Portal measuring 7 hectares 24 which is part of the estate of late Shaban Fadulu; a declaration that the acts of the - defendant excluding the plaintiffs from the benefit of the said land is illegal; an order


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for equal share of the said land among all the beneficiaries under the estate of the late Shaban Fadulu; an order grating the letters of administration of the estate of the

late Shaban Fadulu to the 1st and 3rd 3 plaintiffs; general damages, a permanent injunction and order that costs of the suit be defrayed from the estate.

In short, the Respondents/plaintiffs challenge the will attributed to the late Shaban 6 Fadulu which they asked court to declare a nullity while the defendant contends that there was a valid will. The Applicants in this application also made mention of the will which they contend is invalid. The existence or otherwise of a valid will has an

effect on the validity of any consent judgment entered into; and whether the 1st 9 and 3 rd plaintiffs can be appointed or are fit and proper persons to be appointed as administrators of the estate of the late Shaban Fadulu as sought; as well as the 12 manner of sharing of the estate.

Therefore, the applicants who claim to be beneficiaries under the said estate have the liberty to apply to be joined as parties to the suit where Court will make an 15 assessment as to whether the orders sought should be granted. Further, since the applicants claim to be beneficiaries under the estate of the late and are said to be in possession and use of the land or part of the lane to be shared, I find that their 18 presence would aid court in addressing all disputes over the same and among the beneficiaries to finality in one suit to avoid multiplicity of suits.

I therefore find that this is a proper case where the applicants should be added as 21 defendants to Civil Suit No. 0018 of 2022. This application therefore succeeds with the following orders:

**1. The applicants are hereby added as defendants to Civil Suit No. 18 of** 24 **2022 and shall file their respective written statement(s) of defence to**


**the claim in the plaint within 10 days from the date of delivery of this ruling.**

3 **2. There is no order as to costs.**

**It is so ordered.**


6 Vincent Wagona

**High Court Judge**

## **FORT-PORTAL**

9 **DATE: 31/05/2024**