Commissioner Land Registration v Kabuye (Miscellaneous Application 2431 of 2024) [2024] UGHCLD 289 (3 December 2024)

`THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

(MISC. APPLICATION NO.2431 OF 2024)

(ALL ARISING FROM CIVIL SUIT NO.366 OF 2020)

COMMISSIONER LAND REGISTRATION :::::::: APPLICANT

VERSUS

- 1. KABUYE IBRAHIM - 2. KITOOKE TONY - 3. MATSIKO RAYMOND SAM - 4. BAMANZI JANUARY - 5. KAFERO FAROUQE - 6. FRANK SHEMMIE KIBUKA MUSOKE - 7. FRANCIS SENYONJO - 8. ROBERT BEGUMISA - 9. NATIONAL SOCIAL SECURITY FUND - 10. THE ATTORNEY GENERAL ::::::::::::::: RESPONDENTS

BEFORE: HON. LADY JUSTICE NALUZZE AISHA BATALA

RULING.

*Introduction;*

- 1. The Commissioner Land Registration hereinafter referred to as the applicant brought this application by way of Notice of Motion against the respondents for orders that: - i) The applicant be allowed to amend its Written Statement of defense. - ii) The costs of this application be provided for.

*Background;*

1. The 1st to 8th respondents instituted Civil Suit N0.366 of 2020 against the applicant, 9th and 10th respondents for among others a declaration that the title for land comprised in FRV 402 Folio 13 Plots 274 ,323 and 1322 Lubowa Estate is invalid. The applicant carried out new investigations and alleges that new revelations were made which had the effect on the written statement of defence filed by the applicant. It is against this background that the applicant brought this application.

*The applicant's evidence;*

2. The application is supported by an affidavit deponed by

Sekabira Moses which briefly states the grounds of the application as follows:

- i) That the 1st to the 8th Respondents instituted Civil Suit No. 366 of 2020 wherein they also, sued the Applicant for declarations that the Certificate of Title for land comprised in FRV 402 FOLIO 13 PLOTS 274,323 and 1322 Lubowa Estate is invalid, costs of the suit, general and special damages plus any reliefs that the Court may deem fit. - ii) That the Written Statement of Defence was based upon investigations and findings that were carried out and reached upon by the then Commissioner Land Registration. - iii)That owing to the contentious nature of the issue at hand, the Applicant through the Ag. Commissioner Land Registration carried out further investigations relating to the land. - iv) That upon conclusion of the same, new revelations were made which had the effect of separating from the initial findings.

v) That because the findings depart from the earlier findings, it has a wholesome effect on the Written Statement of Defence earlier filed by the Applicant.

*The respondents' evidence;*

- 3. The application is responded to through an affidavit deponed by Rachel Nsenge and briefly states as follows: - i) That the 9th Respondent lawfully acquired and has since 2003 been the registered proprietor of land comprised in Kyadondo, Block 269, Plots 274, 323 and 1322, all situate at Lubowa, Wakiso District. - ii) That the purported new Findings referred to in the Affidavit in Support are part and parcel of the aforesaid fraudulent machinations a result of which the 9th Respondent has gone ahead to challenge them vide High Court Land Division Civil Suit No.466 of 2024, NSSF vs Commissioner Land Registration and 4 Others. - iii)That the application for amendment is prejudicial in light of the new suit challenging the Applicant's actions and the reversal of the Makindye Chief Magistrates

Court criminal case Judgement.

- iv) That the amendment if allowed will lead to a multiplicity of proceedings in respect to the Applicant's questioned Findings particularly in light of the above new suit N0.466 of 2024 against the Applicant. - v) That there would be a likelihood of the different Courts trying the Applicant's actions making different findings in respect to the Applicant's questioned actions in a manner which works injustice against the 9th Respondent. - vi) That the proposed Amended Written Statement of Defence is not an amendment of a Defence but a complete departure from the pleadings of the Applicant which would offend the rules of amendment of pleadings.

*Representation;*

4. The applicant was represented by Counsel Sekkito Moses for Commissioner Land Registration whereas the 1st – 8th respondents were represented by Counsel Bazirengede Muhammad of M/S Bazirengende & Co. Advocates, the 9th respondent was represented by Counsel Joran Sebuliba of M/S Nangwala, Rezida & Co Advocates and the 10th respondent was represented by Counsel Allan Mukama from the office of the Attorney General.

5. Only the applicant and the 9th respondent filed written submissions which I have considered in the determination of this application.

*Issues for determination;*

*Whether the applicant can be granted leave to amend their written statement of defence?*

*Resolution and Determination of the issue;*

- 6. The law on amendment of pleadings is governed by Order 6 Rule 19 of the civil procedure Rules which states that; "The court may at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such a 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" - 6 7. The Supreme Court in Gaso Transport Services (Bus) Ltd V Martin Adala Obene Supreme Court Civil Appeal No.4 of 1994, Tsekoko JSC laid down the following principles

which govern the exercise of discretion in allowing amendments:

- *i) The amendment should not work injustice to the other side,* - *ii) An injury that can be compensated for by way of costs is not treated as an injustice,* - *iii) Multiplicity of proceedings should be avoided as far as possible and all amendments, which avoid such multiplicity, should be allowed,* - *iv) An application which is made malafide shou#ld not be granted,* - *v) No amendment should be allowed where it is expressly or impliedly prohibited by any law.* - 8. Amendments may be allowed before trial or even during trial as long as the amendment shall not prejudice the other party and cause an injustice. The settled position of the law is that amendments should be filed freely*. (See; Mulowooza Brothers v N. Shah & Co Limited Civil Appeal No.26 of 2010 (SC)* - 9. The 9th respondent contended that the purported new findings referred to in the affidavit in support are part and

parcel of the aforesaid machinations and the 9th respondent has gone ahead to challenge them in court.

- 10. However, I need to emphasize that in any event, the court cannot verify the authenticity of the impugned findings at this stage. If an amendment is allowed the parties shall be at liberty to test the veracity of such findings by utilizing the available avenues. The findings are not conclusive merely because the amendment will be allowed. - 11. In my view, the intended amendment does not in any way prejudice the respondents, and in such cases an amendment should be allowed freely. - 12. The respondents are at liberty to challenge the contents of an amended pleading in evidence. The amendment will enable court to fully and finally determine all questions in controversy thereby avoiding a multiplicity of suits. - 13. The applicant has therefore satisfied the court that he is entitled to be granted leave to amend the written statement of defense. - 14. In consideration of the foregoing, this application therefore succeeds and is accordingly allowed with the following orders:

- i) The applicant be and is hereby granted leave to amend his written statement of defence. - ii) The applicant shall file the amended written statement of defence within 7 days from the date of delivery of this ruling. - iii)Any reply to the amended written statement of defense if any be filed within 7 days - iv) Costs shall be in the cause.

I SO ORDER.

…………………………..

NALUZZE AISHA BATALA

Ag. JUDGE

03/12/2024

Delivered Electronically via ECCMIS on the 03rd day of

December, 2024