Nakaye and Another v Muganga and Another (civil suit No. 463 0F 2019) [2024] UGHC 1207 (6 June 2024)


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

LAND DIVISION

CIVIL SUIT NO. 463 OF 2019.

1. NAKAYE MARIA RITANSIA

2. JOSEPH MUSOKE

- 3. BYEKWASO UMAR:::::::::::::::::::::::::::::::::::: - 4. WALULYA JOSEPH (Suing through their lawful Attorneys Vicent Kasita and Kiwanuka Constante)

VERSES

- 1. FRED MUGANGA:::::::::::::::::::::::::::::::::: - 2. NAJJEMBA FAITH (Administrators of the Estate of the Late Yafeesi Sejjembe)

BEFORE: HON LADY JUSTICE NABAKOOZA FLAVIA. K

RULING

- 1. The Plaintiffs sued the Defendants for a declaration that the Defendants have no claim on the estate of the late Yozefu Kaggwa in respect of which they are Administrators; a declaration that the activities of the Defendants on the estate land at Wololo village, Bbale-Mukwenda Parish Masuulita sub-county, Wakiso District were unlawful and amounted to trespass; among others. - 2. The Defendants filed a joint written statement of defence and a counter-claim wherein they denied the contents of the plaint hence putting them in issue. - 3. During hearing the Plaintiffs were represented by Counsel Ssengooba John Fisher from M/s John F. SSengooba & Advocates while the Defendants were represented by Counsel Birungi Rosemary from M/s Matovu & Matovu Advocates. - 4. When the suit came up for mention on 16/04/2024, Counsel Ssengooba John Fisher informed court that the 1^st Attorney for the Plaintiffs (Kasiita Vicent) had since passed on. He thereafter sought leave to withdraw the suit under Order 25 Rule 1 of the Civil Procedure Rules with no orders to costs. - 5. Counsel Birungi Rosemary did not object to the withdraw. However, she submitted that the same should be done with costs. She also prayed that the counter-claim proceeds since it will determine the merits of the entire suit. - 6. In rejoinder, Counsel Ssengooba John Fisher argued that the prayer to proceed immediately was not possible since Kasiita Vicent died. He prayed for an adjournment to file written submissions on the issue of costs.

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- 7. Counsel for the parties filed written submissions and will be considered accordingly. - 8. The only issue for determination is: Whether High Court Civil Suit No. 463 of 2019 should be withdrawn with costs? - 9. Learned counsel for the Plaintiffs relied on the case of National Pharmacy Ltd Vs Kampala City Council [1979] HCB 256 where it was held that "a successful defendant could only be deprived of his costs when it was shown that his/her conduct either prior to or during the course of the suit had led to litigation which, but for his or her own conduct, might have been averted". He stated that the Plaintiffs are administrators of the estate of the Kaggwa Yozefu while the Defendant is the administrator of the estate of the late Yafesi Sejjemba. That the Defendants relied on an agreement of 1951(dated 73 years ago) to lodge a caveat on the suit land on 24/04/2018 yet it was barred by limitation. That the said agreement is a forgery and that has been proved by a handwriting expert, meaning the Defendant did not come to court with clean hands. - 10. Counsel further relied on the cases of Makula International Vs Cardinal Nsubuga (1982) HCB 81, Lazarus Estate Ltd Vs Beasley [1956] QB 702 at p.712 and Scott Vs Brown [1982] 2 QBD 724 at 728 for his submission that court should not condone an illegality or allow a party to keep an advantage he obtained through fraud. That the

Defendants filed a counter-claim basing on an impugned agreement, the plaintiffs also intend to file another suit, and therefore should not be condemned to costs since the Defendants cannot sustain their case without pleading the illegality. - 11. In reply, learned Counsel for the Defendant relied on Section 27 and 98 of the Civil Procedure Act, Order 25 rule 1 and 2 of the Civil Procedure Rules and stated that costs follow the event. That this was espoused in the case of Impressa Ing. Fortunate Federice Vs Irene Nabwire (SCCA No. 3/ 2000) where it was opined that, "...in my view, the effect of the provision of Section 27 in the question of the Civil Procedure Act is that the judge or court dealing with the issue of costs in any suit, action or cause or matter has absolute discretion to determine by whom and to what extent such costs are to be exercised judiciously. How a court or judge exercises such discretion depends on the facts of each case". - 12. Counsel for the Defendants contended further that the plaintiffs filed the suit in 2019, they also filed Misc. Application No. 1105/2019 for a temporary injunction which was dismissed with costs in the cause. That a successful party should not be deprived the fruits of their judgement in Misc. Application No. 1105/2019. That

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Civil Suit No. 463/2019 being a backlog should be withdrawn with costs since the Defendants have spent their money and time defending it. Counsel further relied on the case of Katon Manufactures Ltd Vs Liao Ning Middle East Paper Co' MA No, 4321Z. OLO where MadramaJ (as he then was) stated that, "...1 see no reason to depart from the usual practice that costs should follow the event. To depart from the 'costs follow the event'general rule, there has to be a good reason why the plaintiff shou/d be denied costs... " Counsel also argued that the Plaintiffs choose to withdraw the suit without any reason and should be ready to pay costs over the same. That the argument of death of one of the attorneys is a bluff since all the plaintiffs are alive, and can either revoke the powers of attorney and appoint new ones or represent themselves, although they chose to withdraw the suit.

13. He submitted further that the contention by the Plaintiffs'Counsel that the sales agreement was forged relates to arguing the main suit which he withdrew on 1610412024. He added that the facts in the case of Makula International Vs Cardinal Nsubuga (supra) are distinguishable to the present case. Further, that the Plaintiffs' Counsel has been driven by emotions to conclude that the agreement is a forgery in absence of actual proof and trial to determine the same.

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14. Withdraw of a suit in the circumstances of this case is governed by Order 25 rule 1 (2) of the Civil Procedure Rules which provides that:

Except as in this rule otherwise provided, it shall not be competent for the P/aintrff to withdraw or a suit without /eave of the court. but the or after as to and as to any other suit, and otherwrse as may be jusd order the action to be discontinued or any paft of the alleged cause of complaint to be struck out.

- 15. In addition, my learned brother Vincent Wagona J., in Kaswara Hassan Ali Vs Foft Portal Municipal Council Misc. Application No' 106 Of 2019 (Arising from Cs OO7 Of 2018) pointed out that where a withdrawal is done after the delivery of the defense, then the Plaintiff should pay costs of the withdrawal to the Defendant. - 16. In this case, the record shows that the Defendants filed their defence in Civil Suit No. 463/2019 and the suit was set down for hearing. When the suit came up for summons for directions on 1710512022, court directed the parties to file a joint scheduling memorandum, witness statements and trial bundles. However, the

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record has only the Defendants' witness statements together with their trial bundle.

- 17. It is obvious that by the time the Plaintiffs sought a withdrawal of the suit, the Defendants had incurred costs. It would be unfair to deny them costs of the suit. - 18. The argument that the defendants lodged a caveat when their claim is timed barred and that they based on a forged agreement cannot be entertained at this point. As the Defendant's Counsel argued, that argument requires proof at a full trial. - 19. Furthermore, the Defendant filed a defence with a counterclaim and their Counsel argued that it should proceed for hearing. In principle, a counter-claim is a separate suit. In the Court of Appeal case of Kampala City Council & Anor Vs James Bwogi & Sons Enterprises Ltd C. A No. 52/2009, Barishiaki Cheborion J. A., observed that "it is a principle of law that when a defendant sets up a counterclaim and the plaintiff's suit is discontinued or dismissed, the counter-claim is not affected because it is a cross action". - 20. In the circumstances, this court has withdrawn HCCS No. 463 of 2019 with costs. The counterclaim shall proceed on for hearing as prayed for by the Defendants' Counsel.

day of $6$ Signed, dated and delivered at Kampala this.......

abakooza Flavia. K Judg