THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
MISCELLANEOUS APPLICATION NO. 500 OF 2020
(ARISING FROM CIVIL SUIT NO.043 OF 2017
BEXUS INTERNATIONAL LIMITED::::::::::::::::::::APPLICANT
1.KIKONYOGO INVESTMENTS LIMITED
2.UGANDA NATIONAL ROADS AUTHORITY
3.COMMISSIONER FOR LAND REGISTRATION::::::::::::::::::::RESPONDENTS
Before: Hon. Lady Justice Olive Kazaarwe Mukwaya
This application is brought against the Respondents under section 33 of the Judicature Act Cap 13, section 98 of the Civil Procedure Act Cap 71, Order 41, Order 52 rule1 &3, Order 6 rule 19 and 31 of the Civil Procedure Rules SI 71-1. The Applicant seeks;
- Leave to amend its pleadings to add the Departed Asians Property Custodian Board as a party to the suit.
- A temporary injunction be issued restraining the 1st Respondent, its agents and assignees or any other person from dealing and/or carrying on any developments on the suit land comprised in Block 270 Plot 2 Volume 135 Folio 17 in Wakiso District until the hearing and the determination of the main suit.
- Costs of this application be provided for.
Grounds of the application
These are contained in the affidavit in support sworn by Mr. Byensi Jameson, the Applicant’s director and briefly are that;
- The Applicant filed a suit in January 2017 seeking orders against the Respondents for cancellation of the 1st Respondent’s land titles and ownership of the disputed land, eviction orders, permanent injunction, damages, interest and costs.
- The Applicant filed the suit as the lawful/equitable owner of the suit land having been allocated to it by the Departed Asian Property Board (DAPB).
- The Applicant only learnt in 2018 that the allocation of the suit land was cancelled by the DAPB.
- The Applicant filed an application for judicial review against the DAPB against its decision of cancellation of the allocation but was advised to have issue handled in this suit.
- These are new matters that arose after the filing of this suit and are important to enable this court effectively determine the issues in controversy and avoid a multiplicity of suits.
- The Applicant is aware that the 1st Respondent is in the process of dealing with the suit land which will frustrate the Applicant’s case.
- The Applicant has a prima facie case with a high probability of success.
- If the 1st Respondent is not restrained the Applicant shall suffer irreparable damage as the 1st Respondent will not be able to give adequate compensation to the Applicant for the loss.
- The balance of convenience is in favour of the Applicant and the Respondents will not be prejudiced if application is granted.
- It is in the interest of justice that this application is granted.
Reply by 1st Respondent
In affidavit in reply affirmed by Mr. Jamada Musisi for the 1st Respondent the application was objected to on grounds that;
- The application is omnibus as it seeks an amendment, to add a party and an injunction in contravention of the section 6 of the Civil Procedure Act.
- The suit land was repossessed under Certificate No. 1295 by Manjulaben w/o Ramanbhai Harmanbhai Patel on the 16th November 1992. Copy of the certificate was attached and marked, ‘A’.
- The parties were summoned before the Criminal Investigations Directorate and it was discovered that information adduced to the Departed Asians Property Custodian Board by the Applicant was false/ contradictory leading to the cancellation of the Temporary Allocation that was granted to the Applicant. Copy of the Temporary allocation dated 16th July 2014 and a copy of a letter of the Cancellation addressed to the Applicant dated 24th March 2017 were attached and marked, ‘B’ and ‘C’ respectively.
- The 1st Respondent maintained that at all material times it has been in lawful possession of the suit land as registered proprietor having acquired the same under a court judgment vide HCCS No. 251 of 2010.
- There is no status quo to be maintained in favour of the Applicant.
- The Applicant has no prima facie case since the suit has never been fixed for hearing since it was filed in 2017.
- It is in the interests of justice that the application be granted.
Reply by the 2nd Respondent
The grounds of the 2nd Respondent’s objection are contained in the affidavit Ms. Joanita Muganga’s affidavit in reply. Several of the objections made by the 1st Respondent were reiterated and additional objections were made as follows;
- The Applicant’s proposed amendments are an attempt to defeat the 2nd Respondent’s defence in Civil Suit No. 234 of 2015 to the effect that the original suit discloses no cause of action against the 2nd Respondent.
- The Applicant’s suit is set out for a different property comprised in Block 270 Plot 2 Volume 135 Folio 17 in Wakiso District and the proposed amendment introduces a new property comprised in Kyadondo Block 573 Plot 102 at Kajjansi under a new set of facts that it extends to the suit land and was acquired fraudulently. This sets out a new cause of action offending the rules pertaining to amendment of pleadings.
- The application is made malafide and if allowed would prejudice the respondent’s defence thereby occasioning injustice to the 2nd respondent.
When the matter came up for mention on the 8th June 2020, the parties agreed by joint consent to have the prayer for temporary injunction withdrawn. I shall therefore dwell on the prayer for amendment to add another party. Counsel for the parties filed written submissions in support and against the application and in rejoinder. Surprisingly, the submissions included arguments around the temporary injunction, which I have ignored.
Whether the amendment to the Plaint to add the Departed Asians Property Custodian Board should be allowed?
A brief background to the application is appropriate. The Applicant, Bexus International Limited, sued the Respondents, in Civil Suit No. 043 of 2017 seeking declarations that Bexus International Limited is the equitable/legal owner of land located at Kajjansi and comprised in Block 270 Plot 2 Volume 135 Folio 17 in Wakiso district and that Kikonyongo Investments Ltd’s land title and alleged ownership of the land was acquired by fraud and that the Respondents are trespassers on the suit land.
Paragraph 7(a) of the Plaint filed on the 27th January 2017 states;
‘7. The facts constituting the cause of action arose as follows:
- Upon successful application, the Plaintiff was allocated the suit land by the Departed Asians Property Custodian Board; vide a letter dated 16th July 2014 from the Executive Secretary Departed Asians Property Custodian Board. A copy of the said letter is herein attached and marked, Annexure ‘A’.’
According to, The Uganda Civil Justice Bench Book, 1st Edition, January 2016, at page 78;
‘The amendment of pleadings is to enable the parties alter their pleadings so as to ensure that litigation between them is conducted, not on the false hypothesis of the facts already pleaded or the relief already claimed, but rather on the basis of the true state of facts or the true relief or remedy which the parties really and finally intend to rely on or to claim.’
When this suit was filed in January 2017, Bexus International Limited had a cause of action before this court under the main suit for recovery of land on the basis that it was the holder of a Temporary Allocation issued by the Departed Asians Property Custodian Board for Plot 2 Kajjansi Block 270, Volume 135 Folio 17, Wakiso District, the suit land.
Kikonyongo Investments Ltd, the 1st Respondent, maintains that this allocation was cancelled on the 24th March 2017 and therefore the Applicant ceased to have any rights in the suit land. It is the Applicant’s contention that they were unaware of this cancellation until 2018. When they learned of it, the Applicant filed Miscellaneous Cause No. 293 of 2018 against the Departed Asian Property Custodian Board and the 1st Respondent, Kikonyogo Investments Limited for judicial review to set aside the cancellation. The application was dismissed and in the ruling of the court, the Applicant was advised that it could pursue its interests under Civil Suit 043 of 2017.
Counsel for the 1st Respondent objected to the proposed amendment arguing that the Applicant does not demonstrate that Departed Asians Property Custodian Board has any interest in the suit or that its interests will be affected by this suit. Counsel for the 1st Respondent relied on the Supreme Court decision of Departed Asians Property Custodian Board V Jaffer Brothers Ltd Civil Appeal No. 9 of 1998, where Justice Mulenga held;
‘for a person to be joined on the ground that his presence in the suit is necessary for effectual and complete settlement of all questions involved in the suit, one of two things must be shown. Either it has to be shown that the orders, which the plaintiff seeks in the suit, would legally affect the interests of that person, and that it is desirable, for avoidance of multiplicity of suits to have such person joined so that he is bound by the decision of the court in that suit…’
Counsel for the 2nd Respondent’s objection was that the amendment sought to introduce a new cause of action in particular, a different property comprised in Kyadondo Block 573 Plot 102. This submission is denied by the Applicant. Both Counsel for the 1st and 2nd Respondent argued that the proposed amendment, coming three years after this suit was filed, was malafide, would work an injustice against the Respondents by depriving them of a defence to the original suit.
In Muloowoza & Brothers vs N. Shah Ltd SCCA No.26 of 2010(unreported), Tumwesigye, JSC, stated that the test is whether the proposed amendment introduces a distinct new cause of action instead of the original or whether and in what way it would prejudice the rights of the respondent if allowed.
I have appraised myself of the original plaint alongside the proposed amended plaint. I find that the original cause of action, trespass, has been maintained. Regarding the land comprised in Kyadondo Block 573 Plot 102, the Applicant does not claim ownership as suggested by Counsel for the 2nd Respondent. Rather, the Applicant seeks a declaration that that land is distinct from the suit land. And secondly that this particular land was acquired as a result of the cancellation of the temporary allocation to the Applicant. The amendment seeks to challenge the cancellation of the Applicant’s temporary allocation by the proposed 4th Defendant. Both the Respondents are aware of this cancellation and make reference to it in their pleadings. I am not persuaded by the arguments that the Respondents would suffer an injustice if this amendment were granted. The Applicant has demonstrated in the proposed plaint, that the reference to Kyadondo Block 573 Plot 102, is a natural consequence of the cancellation of the temporary allocation and this court finds that it does not constitute a new and distinct cause of action being introduced by the Applicant.
Certainly, as my learned brother, Justice Ssekaana, rightly pointed out in Miscellaneous Cause No. 293 of 2018, there is a big land issue between the parties. This court is enjoined to entertain it and decide the rights of the parties with finality. I am satisfied that the Applicant has sufficiently demonstrated the purpose for having the Departed Asians Property Custodian Board as a Defendant in this suit. It is necessary to add them as a party to have all the matters in controversy between the parties adjudicated upon.
In conclusion, I allow the prayer for amendment and order as follows;
- The Applicant is allowed to amend the Plaint and add the Departed Asians Property Custodian Board as a Defendant to Civil Suit No. 43 of 2017.
- Costs shall be in the cause.
Olive Kazaarwe Mukwaya
4th Februarya 2021
Delivered by email to Counsel for the parties.
M/S Katirikawe & Company Advocates for the Applicant
M/S Obed Mwebesa & Associated Advocates for the 1st Respondent
Directorate of Legal Services, Uganda National Roads Authority for the 2nd Respondent