Kadene & Ors v Abalema United Effort Ltd & Ors (Miisc Application No. 1463 of 2017) [2017] UGHCLD 96 (6 November 2017)

THE REPUBLIC OF UGANDA

IN THE HIGH COURT OF UGANDA AT KAMPALA

(LAND DIVISION)

MIISC APPLICATION NO. 1463 OF 2017

ARISING FROM CIVIL SUIT NO. 279 OF 2016

1. KADENE YUSUF

2. KYOLABA JOHN

3. KIZITO TADEO:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::APPLICANT

4. KALIMBA STEPHEN

5. ISAAC KAKOBYA KAWESA IVAN

VERSUS

1. ABALEMA UNITED EFFORT LTD

2. UGANDA LAND COMMISSION

3. COMMISSIONER LAND REGISTRATION

4. PATRICK BALIGASIIMA ::::::::::::::::::::::::::::::::::::::::::::::::::RESPONDENTS

Before: HON. MR. JUSTICE HENRY I. KAWESA

RULING

This was an application brought under Sec. 98 of the Civil Procedure Act and Order 1 r3 & 10 of the Civil Procedure Rules for adding the Applicants as necessary parties/Defendants in Civil Suit No. 279/2016.

The grounds are contained in the affidavits of the Applicants attached in support.

The Respondents opposed this application, vide affidavits in reply sworn by Kiiza Daniel and Christopher Zirabba.

The gist of the application is that the Applicants are disabled persons claiming to have been dropped to the home of Joy ‘(Salvation Army)’ - when their parents were killed in the 1986 Bush war.

They claim interest in the suit land as far back as 2002, when they applied for it and the President of Uganda gave it to them in 2005. They formed the Abalema (Disabled) United Effort Ltd. as an Umbrella to front Company of Disabled persons. They allege that in 2005, through the RDC Kampala, the Government allocated them the suit land in Wandegeya – now Plot 175 Bombo Road – Wandegeya to carry on their activities.

By 2007, the 1^st and 4^th Respondent entered deals with them on the land and from then court battles arose between them including the current dispute in Civil Suit No. 279 of 2016.

The Applicants contend that there are several cases involving all the above parties whereby the orders sought for in Civil Suit No. 279 of 2016, would affect them.

The Applicants claimed that unless they are joined as parties, Civil Suit No. 279/2016, they would be prejudiced.

The Respondents in reply by their affidavits show that the Applicants do not have any interests in the suit property and their application is misconceived.

In Court, arguments were made basically supporting the grounds upon which each party seeks Court’s decision. For the Applicants, it was argued that there are grounds that warrant their addition especially since all the other Respondents, save the 1^st Respondent, are not opposed to the application.

However, the 1^st Respondent’s Counsel referred to O.1 r3 of the Civil Procedure Rules to argue that the Plaintiff has no interest in suing the Applicants since they do not have any legal or equitable rights on the land. He argued that it will be an injustice to compel him to sue the Applicants from whom he has no interest for any of the relief’s sought from Court.

In reply, Counsel for the Applicants referred to the Court case ruling annexed as ‘E’ in Civil Suit No. 289 of 2009, where the relationship between the different Abalema groupings via viz the Respondents and between themselves as Applicants, was discussed.

He also referred to Anex ‘C’ and ‘D’ which letters reflected dealings on the suit land by the Applicants, long before the 1^st Respondent took to have it registered. He pointed at the current confusion as to who are the right Abalema group to maintain and claim rights on this land, hence arguing that the applicants have claims on the land and that it is in the interest of the need to Judiciously determine this case that they should be added as prayed.

I have gone through the pleadings and I have listened to the arguments. I have also perused the annextures.

I do agree that O.1 r3 of the Civil Procedure Rules empowers Court to join parties who may have a claim or relief on the subject matter under issue.

I have noted from the annextures attached to this application, notably those referred to as ‘C’, ‘D’ and ‘E’ and concluded that the Applicants cannot be denied a hearing. There is evidence from ‘E’ to show that the different Abalema groups have had dealings with some of the Respondents on this land with whom they even have other pending cases.

I have also found from the pleadings and evidence that the subject matter of Civil Suit No. 279/2016 from which the Misc. Application No. 1463/2017 arises, is one and the same as that which was considered in Civil Suit No. 284 of 2009 which in this matter annexed as ‘E’. Court noted that there was need for the two groups of Abalema to sort themselves out before finalising the consent judgment between the Plaintiff ULC and the Abalema United Efforts. This Courts’ ruling seems to suggest that, the Applicants, have a right to be party to any reliefs that any other party seeks to enforce in any proceedings involving this suit property, whose ownership is still a matter of dispute in the Courts of Law between these same parties; vide the different suits as noted.

For reasons above, I am inclined to allow the Applicants to join as co-defendants in the main suit as prayed.

To alleviate the Plaintiff/1^st Respondent fears of being compelled to sue a party whom he does not want to sue, I order that irrespective of the outcome of Civil Suit No. 279/2016, the Applicants will have to bear their own costs and the Plaintiff will not pay them any costs that may arise since he never sued them, but they, willingly joined the suit.

The Application is granted.

Each party to bear their own costs of this application.

I so order.

…………………………

Henry I. Kawesa

J U D G E

30/11/2017

30/11/2017

Bajju Bangu for the Respondents

Joyce Kamugisha for the Plaintiffs

Court: Ruling delivered to the parties above.

………………………

Henry I. Kawesa

JUDGE

30/11/2017

06/11/2017:

Mr. Hamza Muwonge for the Applicant

Parties absent.

Clerk: Irene Nalunkuuma.

Court: ruling delivered in chambers.

Before me: …………………………….

Emukor Samuel

DEPUTY REGISTRAR

06/11/17