Mutegana David and Another v Ibrahim Zirinkomyawo (Miscellaneous Application No. 450 of 2025) [2025] UGHCLD 111 (27 June 2025)

THE REPUBLIC OF UGANDA IN THE HIGH COURT OF UGANDA AT KAMPALA (LAND DIVISION) MISCELLANEOUS APPLICATION No. 450 OF 2025 (ARISING FROM CIVIL SUIT No. 400 of 2022) 1. MUTEGANA DAVID 2. MUTUMBA SEMU ………………………….. APPLICANTS VERSUS

IBRAHIM ZIRINKOMYAWO ………………………. RESPONDENT

BEFORE HON. LADY JUSTICE FLAVIA NASSUNA MATOVU RULING

- 1. This application was brought under the provisions of S.33 of the Judicature Act, S.98 of the Civil Procedure Act, O.1r 10(2) and O.52 r.1 of the Civil Procedure Rules. It was seeking for orders that the applicants be added as defendants to Civil Suit No. 400 of 2022. It was brought by notice of motion which was supported by an affidavit that was sworn by the 1st applicant. Grounds of the application were laid in the notice of motion and affidavit in support. Briefly the grounds were that; - a. The applicants are grandchildren of the late Semu Zawaya who owned several properties including land comprised in Kibuga Block 32 Plot 33 at Mutundwe. - b. That out of the said land, 2 acres were allocated to Enock Kayongo as a trustee of the land to be used as burial grounds for the family.

- c. That Enock Kayongo begot two children; Kiwalabye Adam and Nambooze Mirieri whom he distributed to the suit property as follows; one acre between the two children and one acre to be used as the family's burial grounds. The one acre of burial grounds was left under the care of Nambooze Mirieri in trust for all the beneficiaries - d. Subdivisions were made to the said land which culminated into the one acre being registered as Kibuga Block 32 Plot 424 in the name of Nambooze Mirieri who eventually transferred the same to third parties without the consent of the family members. - e. In 2021, one Kaloli Matovu, from whom the respondent derives his interest in the suit land, claimed that he had purchased the land from Nambooze Mirieri and had the remains that were in the burial grounds exhumed and taken to an unknown place. - f. That the respondent acquired the land through fraudulent means. - g. That it will be fair and just if the applicants are added as defendants to the suit so as to enable them properly defend the matter. - 2. The respondent filed an affidavit in reply by which he called upon court to dismiss the application with costs. He briefly stated that; - a. That the applicants were not known to him and he did not have a cause of action against them.

- b. That he conducted all the necessary due diligence before purchase of the suit land and at the time he purchased the same there were no burial grounds as alleged by the applicants. - c. That the allegation that the suit land forms part of the estate of the late Semu Zawaya was not true and that he purchased the suit land from one Kaloli Matovu whose predecessor in title was the late Nambooze Mirieri. - 3. The applicant filed an affidavit in rejoinder whose contents I have also carefully studied. - 4. The applicants were represented by M/s TIAM Advocates while the respondent was represented by M/s Ssemwanga, Muwazi & Co. Advocates.

5. ISSUE

Whether the applicants should be added as defendants to Civil Suit No. 400 of 2022.

6. LAW APPLICABLE:

- The Constitution of the Republic of Uganda 1995 - The Judicature Act Cap 16 - The Civil Procedure Act Cap 282 - Civil Procedure Rules, - Common law and Case law.

7. SUBMISSIONS

Both counsel filed written submissions which I carefully studied. Briefly counsel for the applicant submitted that the applicants should be added as parties because their presence is necessary to enable the completion of all questions pertaining to the suit and also avoid a multiplicity of cases. He cited the case of Departed Asians Property Custodian Board v. Jaffer Brothers Ltd; S. C. C. A No. 9 of 1998 in support of his submissions.

In reply, counsel for the respondents raised a preliminary point of law to the effect that the 1st applicant did not have authority to swear an affidavit on behalf of the 2nd Applicant and for that reason his affidavit in support of the application is incurably defective and ought to be struck off. Further that the applicants did not fulfill the requirements to be added as a party as laid down in the case of Departed Asians Property Custodian Board v. Jaffer Brothers Ltd (supra). That they were not direct beneficiaries of the late Semu Zawaya and that the reliefs sought by the respondent in Civil Suit No. 400 of 2022 are as a result of trespass and failure to fulfil contractual obligations - not estate wrangles.

In rejoinder, counsel for the applicants raised also a preliminary point of law to the effect that the respondent had filed a supplementary affidavit without leave of court and the same should be struck off the court record. He further submitted that it is now trite law that a deponent who has requisite knowledge of the facts in issue can swear an affidavit. He cited the case of Shifa Lovewood v.

Luyima & Namazzi; Court of Appeal Civil Appeal No. 299 of 2021

in support of his submission. He reiterated his earlier submissions.

8. DECISION OF COURT.

a) Preliminary points of Law.

- i) Counsel for the respondent called upon court to strike out the affidavit in support of the application that sworn by the 1st applicant because the 1st applicant swore the same on behalf of himself and the 2nd applicant but did not attach written consent/authority of the 2nd applicant authorizing him to do so. In my view where an application is filed by more than one person, the affidavit in support of the same can be made by any of the parties who is well versed with the facts concerning the particular case. Indeed, this was the position of court in Shifa Lovewood vs Luyima & Anor CACA 229 of 2011. In the instant case, the 1st applicant clearly stated in paragraph 1 of the affidavit in support of the application that he was conversant with material facts touching the case and swore the affidavit in that capacity. He therefore did not need any authority from the 2nd applicant to swear affidavit in support of the application because the facts to which he deponed were well within his knowledge and belief. The objection raised by counsel for the respondent is accordingly hereby overruled. - ii) Counsel for the applicants too raised a preliminary objection to the effect that the respondent filed a supplementary

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affidavit in reply without leave of court to do so and way after all the pleadings had been closed. That the said affidavit was improperly filed and ought to be struck off. Perusal of the record shows that parties appeared before court on 22/4/2025 and the court set scheduled for them to file written submissions. However, the respondent then filed a supplementary affidavit on 9/5/2025 apparently after pleadings had been closed and without leave of court. In the case of Water & Environment Media Network & 2 Ors v. NEMA & Hoima Sugar Works; High Court (Civil) Consolidated Misc. Causes No. 239 & 255 of 2020 the court guided that if a party seeks to file additional evidence in court through the use of supplementary affidavits, he/she ought to seek leave of court to do so and I have no reason to depart from this guidance by court. Since the supplementary affidavit was filed without leave of court, the same is improper on the court record and is accordingly hereby struck off.

- b) Whether the applicants should be added as defendants to Civil Suit No. 400 of 2022. - i) Order 1 r.10 (2) CPR under which this application was partially brought provides that;

"*The court may, at any stage of the proceedings either upon or without the application of either party, and on such terms as may appear to the court to be just, order that the name of any*

*party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all questions involved in the suit, be added."*

- ii) In the case of Baku Raphael v. Agardi Didi, Wadri Kassiano Ezati & Electoral Commission, Constitutional Petition No.s 4 & 6 of 2002, a necessary party was defined as one who is interested in the subject matter of the proceedings and in whose absence,(emphasis mine) therefore, the subject matter cannot be fairly dealt with. In Gokaldas Laximidas Tanna v. Sister Rose Muyinza, H. C. C. S No. 707 of 1987 [1990 – 1991] KALR 21 court guided that for a party to be joined on ground that his presence is necessary for the effective and complete settlement of all questions involved in the suit, it is necessary to show either that the orders sought would legally affect the interest of that person and that it is desirable to have that person joined to avoid multiplicity of suit, or that the defendant could not effectually set up a desired defense unless that person was joined or an order made that would bind that other person. - iii) In the instant case, the applicants submitted that they should be added as parties because the decision in the main suit is likely to affect their interest in the suit property. That the suit land belonged to the Estate of the late Semu Zawaya

and that they are beneficiaries as his grandchildren. However, the evidence attached by the applicants in Annexure "B" to their affidavit in support indicates that the late Nambooze Mirieri – who had been given the suit land acknowledged having sold the same to one Kalooli Matovu in her will. The applicants insist that this was estate property since it had burial grounds.

- iv) The respondent on the other hand emphasized that since the applicants were not the registered proprietor of the suit land and were never direct beneficiaries of the estate of the late Semu Zawaya, they have no interest in the suit land and that he would have no cause of action against them if they were to be added as defendants. - v) In my view the alleged interest of the applicants in the suit land is too remote. Besides the defendant in Civil Suit No. 400 of 2022 has ably set up a defense by which she claimed that the plaintiff and 1st defendant fraudulently dealt with the said land and by way of counter claim prayed inter alia for cancellation of the names of plaintiff and 1st defendant from the certificate of title to the suit land. The court will definitely investigate the said allegation of fraud and the concerns of the applicants will be ably addressed without necessarily adding them as parties. They can as well come as witnesses in the matter. - vi) I have therefore not found reason to add the applicants as parties to Civil Suit No. 400 of 2022. This application hereby

fails and is accordingly dismissed with costs to the respondent.

Dated at Kampala this 27th day of June 2025

JUDGE