THE REPUBLIC OF UGANDA,
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO 542 OF 2011
(ARISING FROM FORMER H.C.C.S. NO 417 OF 2007, LAND DIVISION AND NOW H.C.C.S. 432 OF 2009 COMMERCIAL DIVISION COURT)
SEMAKULA HARUNA }......................................................APPLICANT/PLAINTIFF
1. JOSEPHINE NAGADYA}
2. DFCU BANK (U) LTD }
3. PEARL OILS (U) LTD } ::::::::::::::::::::::::::::::: RESPONDENTS/DEFENDANTS
4. STANBIC BANK (U) LTD}
5. REGISTRAR OF TITLES }
BEFORE HON. MR. JUSTICE CHRISTOPHER MADRAMA
The Applicant’s application was lodged under section 98 of the Civil Procedure Act, section 33 of the Judicature Act, Order 52 rules 1and 2, Order 6 rule 18, Order 22 rules 1 (2) of the Civil Procedure Rules, article 126 (2) (e) of the Constitution of the Republic of Uganda for orders that:
1. Leave of court to be granted to withdraw civil suit No. 417 of 2007 against the first, second, third, and fifth Respondents/Defendants with each party bearing its own costs having partly or wholly conceded the Applicant/Plaintiff's claim save for the fourth Respondent.
2. An order that the main suit proceeds accordingly against the fourth Defendant for damages and costs
3. Court grants the Applicant leave to amend the plaint.
4. Costs of the application are provided for;
The application is supported by the affidavit of Hajj Haruna Semakula affirmed on the 21st day of September 2011. The grounds of the motion are that:
1. “The first Respondent has no purported interest in the suit property having sold at the same Pearl Oils (U) Ltd.
2. The first Respondent acquired the suit tile illegally and/or unlawfully since the then Gold trust Bank (U) ltd had no interest in the suit property and had handed over the same to the then UCB.
3. The first Respondent acquired the suit property title when there was an existing injunction.
4. The second Respondent states it had no interest in the suit property in its WSD.
5. The third Respondent who had earlier got registered itself on the suit property, was de-registered as owner of the suit property had been done illegally and/or unlawfully and/or fraudulently as there was a caveat on the property.
6. The fourth respondent removed the mortgage/caveat it had registered onto the suit property as mortgagor and handed over the titles to land office which were later handed over to court following a court order.
7. The fifth respondent did not file a defence but his usefulness is only to put into effect the orders of court.
8. The titles are in court custody
9. The Applicant has vacant possession of the land.
10. It is in the interest of justice that this application be allowed
11. The Respondents shall not be prejudiced in anyway if the application is allowed.”
The affidavit of Hajj Haruna Semakula gives details of the grounds of the notice of motion. He further filed a supplementary affidavit dated 5th October 2011 giving additional details. The fourth Defendant/Respondent filed an affidavit in reply opposing the application for withdrawal of the suit against the other four defendants however the other defendants did not file replies in opposition to the application. The affidavit of the 4th defendant is sworn to by Gertrude Wamala Karugaba on the 6th of October 2011. The fourth respondent opposes the application for withdrawal of the suit against the first, second and third Respondents.
At the hearing the Applicant was represented by learned counsel Moses Kugumisiriza while the 4th Respondent was represented by learned counsel John Fisher Kanyemibwa. The third Respondent was represented by learned counsel Siraje Ali. The first Respondent was not represented while the second Respondent filed a consent withdrawal agreement dated 6th of October 2011 and filed on court record on the 7th of October 2011. The 3rd Respondent through learned Counsel Siraje Ali did not oppose the application of the applicant to withdraw his suit against his client the 3rd Respondent and conceded to the prayers in the motion.
It is on record that first Respondent had passed away. AT the hearing of this application lawyer was not present either and no administrator of the estate had been appointed by court. The Applicants counsel prayed that he proceeds ex parte as against the first Respondent because the withdrawal of the suit against the estate would occasion no prejudice to the deceased’s estate. Counsel for the 4th Respondent John Fisher Kanyemibwa opposed the application as an officer of court and contended that because no administrator of the estate of the first Respondent had been appointed by any court the proceedings would be irregular. Moreover the estate could be prejudiced since it had an interest on the question of costs.
I granted the order for the application to proceed ex parte against the first respondent and in my ruling I observed that the applicant’s application was an application for withdrawal of the suit against the 1st, 2nd 3rd and 5th Defendants. Where a deceased person dies testate, section 189 of the Succession Act cap 162 provides that no right as executor or legatee shall be established in any court of law without grant of probate. Similarly section 192 provides that no right to the estate of an intestate shall be established in a court of law without grant of letters of administration. The provision for grant of letters of administration pendete lite are inapplicable because they deal with the grant of letters pending a suit filed either for revocation of letters of administration or contesting the validity of a will. I saw no prejudice that would be occasioned if the application to withdraw against the 1st Respondent continued ex parte as there was no right going to be established against the estate other to determine whether the estate be awarded of costs. In cases of unilateral withdrawal of a suit under order 25 rule 1 (2) of the Civil Procedure Rules except for leave of court which is at the discretion of court, a unilateral withdrawal would entitle the estate to costs. I noted that the question of costs can be handled ex parte without prejudice to the estate and that the applicant had intimated to court that he was willing to meet the costs of withdrawal against the estate. In any case the question of costs can be handled separately from that of withdrawal and if need be can await the appointment of an administrator to the estate.
As far as the 5th Respondent is concerned, it did not file a defence and the application proceed ex parte against it after judgment in default of defence had been entered against it.
Learned counsel for the applicant Moses Kugumisiriza submitted that the application is for leave of court to withdraw Civil Suit No. 417 of 2007 against the 1st, 2nd, 3rd and 5th Respondents/Defendants. The suit was initially filed in the Civil Registry of the High Court but later transferred to the Commercial Court Division and numbered as HCCS 432 of 2009. Counsel prayed for an order granting leave to withdraw the said suit against the 1st, 2nd, 3rd and 5th defendants with an order for each party to meet its/his/her own costs while the suit survives as against the 4th defendant only.
The Applicant and the second Respondents DFCU filed an agreement on court record consenting to withdrawal of the suit against DFCU with each party to bear its own costs. The consent document is dated 6th of October 2011.
As far as the 5th Respondent who is the Registrar of Titles is concerned, it did not file a written statement of defence and an ex parte judgment was entered against it. He prayed that leave be granted to withdraw against the 5th Respondent with each party to bear its own costs.
As far as the 3rd Respondent Pearl Oils Ltd is concerned, learned counsel Siraje Ali conceded to the application and informed court that the 3rd Respondent had no objection to the withdrawal of the suit against it and there is no need for the moment to repeat the submissions of learned counsel for the applicant seeking leave to withdraw the suit against the 3rd Respondent.
With respect to withdrawal of the suit against the first Respondent, learned counsel for the Applicant submitted that the history of the suit property is important as contained in the supporting affidavit of Hajj Haruna Semakula particularly paragraphs 5 – 21 thereof. The suit property had earlier been used by the Applicant to secure a loan from Gold Trust Bank. On the 16th of July 1991, Gold Trust bank released the two titles, namely Kyandondo Block 208 plots 280 and 279. Annexure “A” at page 13 of the supporting affidavit gives documentary proof that Gold Trust Bank wrote saying they had no objection to their names being deregistered from the title deeds. The property was subsequently used by the Applicant as security of a loan in the then Uganda Commercial Bank among other securities. The mortgage deed attached as annexure “D” at page 14 which was executed on the 12th of August 1991 proves that the two titles were deposited with UCB as security. Subsequently arising out of an alleged default on the loan repayment, Key Agency and Auctioneers advertised a number of properties including the suit property on instructions of UCB as it then was. He prayed that leave be granted for the plaintiff to withdraw the suit against the first Respondent with each party to bear his/her own costs.
As far as the 4th Respondent is concerned counsel prayed that the suit continues as against the 4thdefendant. The reasons for retention of the suit were detailed in the affidavit in support at paragraphs 37 – 41. The gist of which is that there was a ruling granting a temporary injunction restraining sale of the suit property and thereafter what became of the title of the Applicants property can only be explained by the 4th Respondent who had custody of the title. The suit against the 4th Respondent is mainly for damages and costs.
In reply learned counsel for the 4th Respondent John Fisher Kanyemibwa contended that the Applicants application was a strange application for leave to withdraw the suit as submitted. It maintains the suit against the 4th Respondent as contained in paragraph 37 and 41 of the affidavit in support. The 4th Respondent opposes the application principally on the ground that it asked the Respondent to seek an explanation and yet the 1st, 2nd and 3rd Respondents will be necessary parties to determine questions that will arise in those proceedings. Secondly the substance of the claims in the suit which the Applicant brought to court and remedies sought therein has been substantially achieved. In the first place the plaint sought declaration that the 3rd Defendant as a trespasser on the suit property but in his own affidavit the Applicant admits that he is possession and is not interested in pursuing the trespass claim anymore.
The second prayer is that the 3rd defendant pays special and general damages for trespass; the applicant has lost interest in this as well. The third prayer is for transfer of the suit property to the 3rd Defendant to be cancelled and this has been achieved by rectification of the title by the 5th respondent. The 4th prayer is for cancellation of title of the 3rd Defendant and this has been achieved by the 5th Respondent rectifying the title. The Applicant also seeks an order for restoration but this has not been achieved because the title is in the names of the first Respondent. Sixthly the Applicant sought an order that the mortgage of the property by the 3rd Defendant to the 4th Defendant was unlawful, improper and it be cancelled. That has been achieved because the 4th Respondent discharged the mortgage and forwarded its title to the 5th Respondent who forwarded the title to this court. Seventhly he seeks an order that the 5th defendant effects the above orders and rectifies the register. This has been achieved. As far as the order for a permanent injunction restraining the 3rd Defendant is concerned the Applicant has lost interest in this prayer.
As far as declarations that the order of sale of the suit property and defendant to the first defendant was fraudulent, illegal and unlawful counsel contended that this had been achieved or has been overtaken by events because the Applicant is no longer interested in this prayer. As far as the order that the applicant is not indebted to the 2nd Respondent is concerned, the Applicant has lost interest in this.
Lastly as far as costs is concerned, learned counsel contended that since the applicant plaintiff has substantially achieved the reliefs it intended in this court notwithstanding that the title are in the names of the first respondent, what is in issue is the costs of the suit. It is prejudicial for the rest of the Respondents to be withdrawn from the suit and the suit maintained against the 4th Respondent when it is clear that they are liable to contribute to the costs of the suit.
Counsel submitted that though is no prayer in the main suit that the 4th Respondent renders explanations as contained in paragraphs 37 and 41 of the affidavit in support of the application, it is no longer useful for the court to make that inquiry because the reliefs have been achieved. There is no cause of action nor is any order sought against the 4th Respondent.
In the 3rd alternative counsel submitted that if the court is inclined to say in spite of the above reliefs achieved, that it is necessary for the Respondent to render explanations as in paragraphs 37 – 41 of the affidavit in support, the 1st, 2nd and 3rd Respondents are key parties for the court to determine all the questions that will arise.
For the record counsel contended that the 4th Respondent which was concerned at the material time was UCB, the statutory body existing in Act 22 of 1965 and not the 4th Respondent. The 4th Respondent would be handicapped to render the said explanation if the court deems them necessary without the 3rd Respondent being a party. The second Respondent stated to have sold property to the first Respondent is also a necessary party.
If the applicant wishes to retain against the 4th Respondent for general damages, there are no such prayers in the plaint. Save order for costs, the rests of the prayers relate to other respondents. Counsel prayed that the court does find that the remainder of the matter before court is substantially in respect of costs. It is in the interest of justice that the rest of the Respondents against whom the reliefs were achieved, should not be removed until they have proportionately paid the costs of the suit. Otherwise I refer to annexure SBU 5 to the affidavit in reply by Gertrude Wamala Karugaba. Having realised that that this is a letter dated 21st August 2009, that the matter pending against 4th Respondent is about costs, an overture was made to the Applicant’s counsel to negotiate costs of the suit. He proposed 30 million which according to paragraph 23 of Gertrude Wamala, was deemed exaggerated. The 4th Respondent was among the so many defendants against whom the plaintiff was entitled to recover costs of the suit.
In the interest of justice subject to this court accepting to put 4th Respondent on stand to make explanation, counsel prayed that leave to withdraw should be refused with costs.
In rejoinder learned counsel Moses Kugumisiriza submitted that the decision as to who to sue remains with the Applicant/Plaintiff. As to whether to maintain the suit against 4th Respondent only does not require leave of court and none is sought. Though some reliefs sought in the plaint have been achieved, the relief against the 4th Respondent has not been achieved.
Under paragraph 21 of the plaint the plaintiff pleads particulars of fraud against the 4th defendant and under paragraph 23 of the plaint it is averred that the plaintiff suffered damages which were particularised therein. The 4th Respondent is answerable for the damages and not the other defendants who may even be called as witnesses. That is no reason to insist the other Defendants remain parties to the suit. Counsel submitted that when the suit came before Hon. Lady Justice Magezi of the Land Division, she observed that the two titles have been mortgaged by UCB/Stanbic Bank in 1991. In 2005 following a Supreme Court judgment, the bank was ordered to return the property but the two titles went missing. She observed that Messrs Pearl Oil surfaced with the titles and mortgaged them to Stanbic bank. The bank is being sued as a mortgagor and to explain the mess as to the title.
As far as attempted settlement is concerned the applicant proposed to be paid 30 million as fees and damages. Damages arise from the violation of temporary injunction issued by court in 1991. The titles were in custody of UCB as security. The applicant won suits and UCB was ordered to give back the properties affected but the two plots in this suit were not returned. The debt was assigned to NPART and the two properties were not sent to NPART but remained with UCB who have to explain.
As far as costs are concerned, it should follow the event. Costs are borne by the losing party. This is not a reason in itself to retain the other respondents. Counsel reiterated his prayers for the court to allow the application with costs.
I have carefully gone through the pleadings and submissions of counsel. Before I handle the submissions of the parties, it is necessary to first consider the issue of whether there is a requirement for leave of court where parties have consented to an application to withdraw a suit. In effect where leave is not required, there would be no need to seek leave of court. It would also not be necessary to consider any further the rather lengthy arguments for and against the application bearing in mind that the 2nd and 3rd Defendants have consented to the suit being withdrawn against them. An answer to the above question will substantially dispose of the application and will be tried first as a point of law under order 15 rule 2 of the Civil Procedure Rules. The point of law arises from order 25 rules 1 (1), (2) and 2 of the Civil Procedure Rules. Order 25 rules 1 and 2 are reproduced for ease reference:
1. Withdrawal of suit by plaintiff or defendant.
(1) The plaintiff may at any time before the delivery of the defendant’s defence, or after the receipt of that defence before taking any other proceeding in the suit (except any application in chambers) by notice in writing wholly discontinue his or her suit against all or any of the defendants or withdraw any part or parts of his or her alleged cause of complaint, and thereupon he or she shall pay the defendant’s costs of the suit, or if the suit is not wholly discontinued the costs occasioned by the matter so withdrawn. Upon the filing of the notice of discontinuance the costs shall be taxed, but the discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action.
(2) Except as in this rule otherwise provided, it shall not be competent for the plaintiff to withdraw or discontinue a suit without leave of the court, but the court may, before or at, or after hearing upon such terms as to costs, and as to any other suit, and otherwise as may be just, order the action to be discontinued or any part of the alleged cause of complaint to be struck out.
(3) The court may, in like manner, and with the like discretion as to terms, upon the application of a defendant order the whole or any part of his or her alleged grounds of defence or counterclaim to be withdrawn or struck out, but it shall not be competent for a defendant to withdraw his or her defence or any part of it without such leave.
3. Decree may be issued for costs.
Any defendant may enter judgment for the costs of the suit if it is wholly discontinued against him or her or for the costs occasioned by the matter withdrawn, if the action is not wholly discontinued.
Order 25 rule 1 (1) permits a plaintiff unilaterally and either wholly or partially to withdraw his or her suit as against the defendant or any defendants where there are more than one defendant. The notice of withdrawal has to be filed in court before delivery of the defendant’s defence or after receipt of the defence but before any other proceedings is taken in the suit. This rule is inapplicable to the plaintiff’s application because the withdrawal is not by a unilateral notice of withdrawal of the suit. The material rule for purposes of this controversy is rule 1 (2) which provides that unless otherwise provided in the rule, it is not competent for the plaintiff to withdraw or discontinue a suit without leave of the court. Consequently the question is whether the leave of court is necessary where the parties consent to the withdrawal of the suit.
Rule 2 is the specific rule that deals with withdrawal by consent of the parties. It provides that:
“2. Withdrawal by consent
When a suit has been set down for hearing it may be withdrawn prior to the hearing by either the plaintiff or the defendant upon filing a consent signed by all the parties.”
A suit may be withdrawn prior to the hearing by the filing of consent agreement executed by all the parties. In this case the second Defendant and the Plaintiff filed their consent agreement withdrawing the suit and the 3rd Defendant conceded to the application for withdrawal of the suit against it. The question is whether by use of the phrase “Upon signing a consent by all the parties”, the suit cannot be withdrawn if any of the other parties withholds the consent. After careful consideration of order 25 rule 1 (1) and (2), it is my judgment that the rule deals with unilateral withdrawal of the suit by the plaintiff. It does not deal with consent of the parties at all. It deals with unilateral withdrawal or withdrawal upon application of plaintiff for leave. Consequently sub rule (2) of order 25 rule 1 which forbids the withdrawal of suit without leave of court unless otherwise provided for in the very rule (order 25 rule 1 (1) and (2) ) concerns the action of the plaintiff alone. If this is the true interpretation of the provision, it gives the basis for having a separate rule dealing with withdrawal by consent under Order 25 rule 2.
The conclusion that these rules deal with different case scenarios are simply that in order 25 rule 1 (1) and (2) the rules apply to unilateral withdrawal of suits by a plaintiff alone or with leave of court while order 25 rule 2 is an independent rule that deals with consent withdrawal of a suit or matter by the parties. It follows that order 25 rule 1 (2) which requires leave of court to withdraw a suit in any other case does not apply to order 25 rules 2 of the Civil Procedure Rules. Simply put order 25 rule 2 has to be interpreted on the basis of its own language. It deals with a different matter which is consent withdrawal and not withdrawal by the plaintiff unilaterally or with leave dealt with in the previous rule.
What remains to be established is whether by using the phrase “consent signed all parties”, the withdrawal is invalid if some and not all the parties to the suit have endorsed it. The head note of the provision reads: “Withdrawal by consent”. The rule requires the withdrawal in a written document signed by the parties. Odgers’ Principles of Pleading and Practice In Civil Actions in the High Court of Justice twentieth edition by Giles Francis Harwood at page 251 explains that a withdrawal of a suit by consent of the parties is under order 21 rule 2 (4) of the English Civil Procedure Code. “No order of the court is required if all parties have given their written consent”. In other words where there is consent of the parties there is no need for an order of the court or the leave of court as under order 25 rules 1 (2) of the Civil Procedure Rules. What is left for determination is the use of the words “all parties”.
The use of the words “all parties” must mean parties to a controversy. It means that one party asserts a position and another disputes it as either plaintiff or defendant. The term “all parties” includes where there is one plaintiff and one defendant but it is drafted in such a way that it covers situations of several plaintiffs and defendants as well. In this case there is one plaintiff and the question of consent of the other plaintiffs does not arise and need not be considered. The plaint of the suit sought to be withdrawn is attached at page 148 of the affidavit of Hajj Haruna Semakula filed in support of the application. The suit as revealed by the plaint is clearly between the Plaintiff/Applicant solely and 5 defendants who are the Respondents to this application.
The rule for “all parties” to sign the consent withdrawal applies only to joint plaintiffs and not defendants. In Halsbury’s Laws of England 4th Edition Vol. 37 at Paragraph 802, it is provided that where there are more than one claimant, a claimant may not discontinue all or any part of the claim unless every other claimant consents in writing or the court gives permission. However where there is more than one defendant the claimant may discontinue all or part of the claim against all or any of the defendants as provided for under the English CPR 38 2(3). In paragraph 803 Halsbury’s Laws of England (supra) it is explained that where the claimant needs consent of some other parties, a copy of the necessary consent must be attached to the notice of discontinuance and where there is more than one defendant, the notice of discontinuance must specify against which defendant the claim is discontinued.
The issue of consent to withdraw a suit under Order 25 r 2 of the Civil Procedure Rules was considered in the case of Uganda Oxygen & 2ors V. Salim Jamal & 2 Ors  KALR 540. In the case there was an appeal against a consent entered by the registrar under O. 22 r 2 of the CPR (now O. 25 r 2). The 1st and 2nd appellants appealed against the consent order by the Registrar, withdrawing the suit. The consent to withdraw the suit was signed only by some of the parties and opposed by the others. The appellants contended that they were not bound by the order resulting from the consent to withdraw the suit because they had not been party let alone signatories to the consent. The court found that the consent to withdraw under O. 22 r 2 (now O. 25 r 2) of the Civil Procedure Rules must be given by all the parties thus, the respondent could not commit the plaintiffs who were not signatory to the consent order.
“Moreover O.22 r 2 of the CPR under which the parties purportedly withdrew the suit of the 1st and 2nd appellants requires that the consent has to be signed by all the parties to the suit, I agree. It is the correct interpretation of r2 of O.22 of the CPR.”
As far as the term “consent agreement” is concerned my understanding is that an agreement is a contract between two or more parties and is binding to the parties who are privy to it. The term consent is defined by BLACK”S LAW DICTIONARY 7th Ed at page 300 and means:
“Agreement, approval or permission as to some act or purpose especially given voluntarily by a competent person”
According to Words and Phrases Legally Defined Vol. 1 between pages 313-314 the words “consent and agreement” are explained to mean:
“I think it could be disputed that although in the strict technical etymology of the word, “Consent” as well as “agreement” the term implies two parties, yet consent used in the ordinary way in which that term is used , is satisfied when it is found that one person has given what is popularly known as consent. BEWLY V. ATKINSON (1879) 13 CHD 283 at 298, 299 CA per THESIGER LJ.”
The contractual effect of a consent order was also explained in Purcell vs. F. C. Trigell Ltd (CA)  1 Q.B. page 358 Per Buckley L.J at page 366:
“On the question of the contractual effect of an agreed order relating to some procedural matter in an action, I can see no valid distinction in principle between a Consent Order of that nature and a Consent Order of a final nature.”
It follows from the above definitions that a consent agreement is voluntarily entered into by a legally competent person (someone with the legal capacity to enter into a binding contract). Unless there is a ground to vitiate a contract between the parties, such a contract is binding on the parties who are privy to it and the court will not interfere with it. There are a string of authorities which hold that a consent order is a contract between the parties and can only be impeached on any ground on which a contract may be impeached. In the case of Huddersfield Banking Co. Ltd –Vs- Henry Lister & Son Ltd (1895) 2 Ch D. P. 273 Lindley L. J. At 280 that:
“To my mind the only question is whether the agreement upon which the Consent Order was based can be invalidated or not. Of course if that agreement cannot be invalidated the Consent Order is good. If it can be the Consent Order it is bad”
In Hassanali vs. City Motor Accessories Ltd and Others  EA 423 the Court of appeal sitting at Nairobi held that a court cannot interfere with a Consent Judgment except in circumstances that would provide a good ground for varying or rescinding a contract between the parties. In Hirani v. Kassam (EACA), 19 E.A.C.A. 131, The East African Court of Appeal approved a passage from Seton on judgements and orders, 7th Edition vol. 1 page 124 where it is noted that a consent order cannot be impeached or varied unless it was obtained by fraud or collusion, or by an agreement contrary to the policy of court or in general for any reason which would enable a court to set aside an agreement between the parties.
To conclude this point order 25 rule 2 allows a plaintiff to agree with a defendant to withdraw the suit against that particular defendant. This is in contrast to the Indian Civil Procedure Act discussed by MULLA which deals with withdrawal by consent of all plaintiffs where there are more than one plaintiff. Where there is one plaintiff having distinct and severable causes of action against each of the defendants, he or she can agree with any or several of the defendants to withdraw the suit against that particular defendant without seeking the leave of court.
What is material is that they have to agree voluntarily and in writing and the agreement entered into is only binding to the party’s privy to it. Moreover a plaintiff is free to sue any person against whom he or she thinks he or she has a cause of action against (See Batemuka v. Anywar & Anor.  HCB 77 and Animal Feeds v. AG  HCB 117). The right to sue includes the right not to pursue the claim subject to the rights of other claimants.
In the premises the consent agreement between the Applicant and the second Respondent to withdraw the suit is a binding agreement between the plaintiff and the second Defendant. There is no valid basis for interfering with it and the agreement will be entered as an order of the court. As far as the 3rd defendant is concerned, it has conceded to the application and the suit will be withdrawn against the 3rd defendant. The 5th defendant did not put in a defence and the plaintiff is at liberty to withdraw the suit against it without leave of court under order 25 rule 1 (1) of the Civil Procedure Rules. Consequently the suit against the fifth defendant stands withdrawn with no order as to costs.
As far as the first Defendant is concerned I see no prejudice to the estate if the suit is withdrawn against the estate of the deceased without a hearing. What is material is that the question of whether costs should be awarded and how should be left to the Administrator of the estate of the first Defendant/Respondent to be appointed by court in future. As opposed to withdrawal by consent, withdrawal against the first Respondent is made under order 25 rules 1 (2) with leave of court. Order 25 rule 3 leaves it to the discretion of a defendant to enter judgment for costs for a suit withdrawn against it. The Administrator to be appointed may be heard on this question and no prejudice would be occasioned to the estate. The suit stands withdrawn against the first Respondent and the question of costs of the first Respondent is stayed pending the appointment of an administrator to the estate of the deceased.
For the above reasons the remainder of the application is whether the suit should be maintained against the 4th Respondent. As I have observed, the plaintiff is at liberty to sue whomsoever he chooses. The question of whether the remainder of the suit can be maintained is a matter on the merits and should be handled when the suit is heard. As to whether the other Respondents should contribute costs, the 4th Respondent is not liable to pay the costs of the other Respondents against whom the suit has been withdrawn. In any case the question of whether costs will be awarded and against who has yet to be determined and should not be considered at this stage.
In the premises there will be no order as against the 4th Respondent. The suit survives against the 4th Respondent without prejudice to any objection or any point of law which may be raised against continuation of the suit against the 4th Respondent when the matter comes for hearing. As far as amendment of pleadings is concerned, pleadings will only be amended to the extent affected by the order of withdrawal of the suit. In other words the plaint will be amended to only contain averments made as against the 4th defendant and drop those against the other defendants against whom the suit has been withdrawn without amending the plaint as it was against the 4th defendant. Any other amendment sought will have to be with further leave of court. Costs of this application as between the 4th Respondent and the Applicant shall be borne by each party.
Ruling delivered in court this 28th of October 2011 at Commercial Division of the High Court at Kampala.
Hon. Mr. Justice Christopher Madrama
In the presence of:
Irina Kyomugisha holding brief for John Fisher Kanyemibwa for the 4th Respondent,
Moses Kugumisiriza for the Applicant,
Ojambo Makoha court clerk
Hon. Mr. Justice Christopher Madrama