Muganwa Leonard v Muganwa Kajura Henry and 3 Others (Civil Miscellaneous Application 81 of 2023) [2024] UGHC 874 (12 June 2024)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT HOIMA

CIVIL MISC. APPLICATION NO. HCT-16-LD-MA-0081 OF 2023 (ARISING FROM MASINDI CIVIL SUIT NO. 215 OF 2022) (FORMERLY MASINDI HIGH COURT CIVIL SUIT NO. 094 OF 2018)

LEONARD MUGANWA:::::: EXECUTE: ::::APPLICANT VERSUS

1. HENRY MUGANWA KAJURA

2. ABDU SSALI

EXECUTE: RESPONDENTS

3. HOIMA DISTRICT LAND BOARD

4. COMMISSIONER LAND REGISTRATION

BEFORE: HON. JUSTICE BYARUHANGA JESSE RUGYEMA

RULING

- [1] The Application was brought under S.33 of the Judicature Act, S.100 CPR, O.1 r.10 (1), (2) & 13 CPR and O.52 rr 1 & 3 CPR for orders that: - The Applicant be added as the 4^th Plaintiff in Civil Suit No. $(a)$ 215 of 2022. - That the Applicant be granted leave to amend the plaint to $(b)$ cater for changes sought under the Application. - Costs be in the cause. $(c)$ - [2] The grounds of the application are briefly set out in the affidavit in support of the application deposed by the Applicant, Leonard Mugawa as follows: - The Applicant is a son and one of the direct beneficiaries of $(i)$ the estate of the late Laurent Mbabule Muganwa whose estate comprises the suit land situate at Kitoba Village, Bugahya County. Hoima District measuring approximately 50 acres. - That the Applicant was born and raised on the suit land $(ii)$ together with the Plaintiffs and his other siblings and he

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has developments on part of the said land, besides, part of the said land constitutes the late Laurent Muganwa's family burial ground.

That the presence of the Applicant is therefore necessary $(iii)$ for the final resolution of this matter.

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- That the dictates of justice lean in favour of the Applicants $(iv)$ in allowing this application since the Respondents stand to suffer no irreparable harm whatsoever if the said sought order is made. - The application was opposed by the affidavit in reply briefly $[3]$ deposed by the 2^nd Respondent, Abdu Ssali as follows: - That the head suit has progressed and should not be slowed $(i)$ down by the Applicant's application. - That he is a bonafide purchaser for value of the suit land he $(ii)$ lawfully purchased from the 1^st Respondent. - That the Applicant has no cause of action against him. $(iii)$ - That the Applicant's application is inordinately delayed. $(iv)$ - $[4]$ At the hearing of this application, both Counsel for the 1^st Respondent addressed court that they are not opposed to the application.

Issue: Whether H. C. C. S No. 215 of 2022 ought to be amended:

Under O.6 r.19 CPR, this court empowers to grant leave to a party $[5]$ to amend their pleadings thus:

> "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 purposes of determining the real questions in controversy between the parties."

The principles governing the exercise of discretion to allow or $[6]$ disallow amendment of pleadings were summarized in the

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Supreme Court case of Mulowooza & Brothers Ltd Vs Shah & Co. Ltd S. C. C. A. No. 26 of 2010 as follows:

- Amendments are allowed by the courts that the real $(a)$ question in controversy between the parties is determined and justice is administered without undue regard to technicalities. - An amendment should not work an injustice to the other $(b)$ side, an injury that can be compensated by an award of damages is not treated as an injustice. - Amendments which avoid multiplicity of proceedings $(c)$ should be allowed. - No amendment should be allowed where it is expressly or $(d)$ impliedly prohibited by any law. - An application that is made malafide should not be granted. $(e)$ - The court shall not exercise its discretion to allow an $(f)$ amendment which has the effect of substituting one distinctive cause of action for another. $s \rightarrow \infty$ - [7] Under O.1 r.10 (2) CPR, it is permissible for the parties to apply to add a party, or at the instance of the court to add a party in case the presence of such a person is necessary to enable the court effectually and completely to adjudicate upon and settle all questions involved. - $[8]$ In the instant case, the Applicant is seeking to be added as a Plaintiff. Under O.1 r.1 CPR,

"All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transaction is alleged to exist, whether jointly, severally or in the alternative. where, if those persons brought separate suits, any common question of law or fact would arise."

$0.1$ r.13 CPR provides that:

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

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- [9] In Departed Asians Property Custodian Board Vs Jeffer Brothers Ltd S. C. C. A. No. 9 of 1998, conditions that must be met for one to be joined to the trial were laid down to include: - That the orders sought by the plaintiff in the main suit $(a)$ would directly or legally affect the party seeking to be added. - [10] In the instant case, the Applicant adduced uncontested evidence to the effect that he is a son and direct beneficiary of the late Laurent Muganwa, the lawful owner of the suit land. That the Applicant and some of his sisters were all born and raised on the suit land where he has developments on part of the land which also constitutes the late Laurent Muganwa's family burial ground. - [11] Clearly the above show that the Applicant has sufficient interest in the suit land which is under threat of alienation. I find that he Applicant's presence as the 4^th Plaintiff in the main suit is necessary to resolve all the questions arising in this case to prevent a multiplicity of proceedings. Otherwise, the Applicant may have to file a separate suit yet his rights would conveniently be adjudicated in the present suit. - [12] In this case, it has not been shown by the $2^{nd}$ Respondent that he is likely to suffer and what injury he would suffer if this application is granted. It has also not been shown that the sought amendment to add the Applicant as a

4^th Plaintiff is expressly or impliedly prohibited by any law. What the $2^{nd}$ Respondent has presented in his affidavit in reply is, that he lawfully purchased the suit land from the 1^st Respondent and therefore he is a bonafide purchaser for value. I find, however these to be matters of evidence for trial on the merits of the main suit. The same apply as to whether or not the Applicant has a cause of action against him. - [13] In the premises, I find that the Applicant has made out a case for leave to be granted and have the plaint amended to add the Applicant as the 4^th Plaintiff within 15 days from the date of this

ruling. The application is therefore accordingly allowed. Costs shall abide the outcome of the main suit.

Order accordingly.

Dated at Hoima this 12^th day of June, 2024.

Byaruhanga Jesse Rugyema<br>JUDGE