THE REPUBLIC OF UGANDA IN THE CHIEF MGISTRATES COURT OF NABWERU AT KASANGATI MISCELLANEOUS APPLICATION NO__________OF 2011 (Arising out

of Civil Suit No. 09 of 2011)

1. YUSUF GOMBE
2. SOFIA NAKAWUKA

APPLICANTS/ PLAINTIFFS

VERSUS

1. BRAIMU NSUBUGA & OTHERS 2. SWAMADU NJUKI

3. HASSAN GOMBE

RESPONDENTS/ CHAMBER SUMMONS

DEFENDANTS

(Under O.1 r.13, O.6, r.19 C.P.R. Sec. 98 C.P.A)

GENERAL OBSERVATION NOTES

1. There is no properly instituted application for an amendment of

pleadings and addition of parties in respect of the main Civil Suit No. 09 of 2011. This is because the copy of the application served upon us, does not indicate any endorsement by the Court as to the fact of payment of the relevant court fees. This is further explained by the absence of a number in respect of the Miscellaneous Application. We submit that it is perhaps the non- payment of fees that the application has no number. As such, this application is improperly before court should be struck off. The case of Eridadi Nsubuga and Another =Vs= Attorney General [1999] KALR 610 (Court of Appeal): It was held in this case making reference to an earlier decision of the Court of Appeal for Eastern Africa in UNTA Export =Vs= Customs [1970] EA 648 that a document

is not properly before Court until the fees for the same have been paid or the advocate has a general deposit in Court for payment of filing fees. [RAISE AS A P.O)

2. The title of the pleadings in the application include parties who are

not party to the main suit (Civil Suit N. 09 of 2011). Parties who have been added on the Plaintiffs own accord. In the absence of leave of Court to so add them, as is being sought in the present application, their inclusion in this application is an irregularity. This application is different from the one supposed to be entertained by the Court for the orders sought or desired by the Plaintiff. This is not the correct application. This application cannot continue in its current form. [RAISE AS A P.O]

3. The 1st Applicant/ Plaintiff has locus to present the main suit and the

current application and as such the application ought to be dismissed. In the Plaint in Civil Suit No. 09 of 2011, the 1st Applicant alleges that he is the administrator of the Late Asan Mutaganyika. He further pleads that he has carried out the division of the estate amongst the intended beneficiaries, including the land which is the subject of the main Civil Suit No. 09 of 2011 and the present Miscellaneous Application.

Having exercised his powers as an Administrator and purportedly given the contested land to a one Sofia Nakawuka, he lost all rights to sue in respect of that land, in his capacity as the administrator of the estate of the late Asan Mutaganyika or in any other capacity for that matter. This fact is further buttressed in the defective affidavit that accompanies the application. In paragraph 7 of the same, it is stated that the owner of the disputed land is a one Sofia Nakawuka, who is clearly not a party (atleast as yet!!) to the main suit giving rise to this application. Because he has no locus to present the main suit, it necessarily follows that he has no right to present the current application. [RAISE AS P.O]

4. The intended amendment will have the effect of introducing a new

cause of action and should be disallowed. In the Plaint, the action is for interpretation of letters of administration and for vacant

possession. Counsel, rightly in my view, agrees that the action for interpretation of letters of administration is unknown to law. Vacant possession does cannot by itself constitute a cause of action but a prayer based on some legal wrong.

Counsel has indicated that he intends to introduce particulars of trespass to back up vacant possession and complete his cause of action. But a prayer for vacant possession does not mean that there should have been an action in trespass. The prayer or order may be sought for any other action and not necessarily trespass. It certainly doesnt follow that whenever the prayer is for vacant possession, the underlying action is trespass for Counsel to argue that what is missing are simply particulars of trespass. The Plaintiff did not mention any thing to do with trespass and any attempt to do so would be to introduce a new action on amendment; which is not allowed in law. The case of Kolodia Nambi =Vs= Bunyoro General Merchants (1974) HCB 124 is an old authority which has been followed to date that it is a cardinal principle of law that a Plaintiff should not be permitted to amend his Plaint if the amendment would disclose a new cause of action.

In any event, trespass, even if introduced shall not serve the purpose for which Counsel would love it to serve. It is an action for disturbance of possession and not ownership yet the central question in the main suit is ownership of the suit land. The case of _________________is authority for this position.

Having dropped the prayer for interpretation of letters of administration, the Plaint falls flat and would not disclose any cause of action. There is simply nothing to amend. But even if there was such cause of action disclosed by the Plaint; which there isnt, the intended amendment will introduce a new action which is not permitted at law and which action even if introduced shall not serve the purpose for which it is intended to serve.[REPLY]

5. There is a discrepancy in the chamber summons and the affidavit in

support of the chamber summons. While the application specifies

Wetaka Andrew as the Counsel deponing the affidavit in support of the application, the affidavit is on the contrary deponed to by a one Gilbert Nuwagaba. This affidavit is not supposed to be the affidavit in support of the current application and should be expunged from the record. Or in the alternative, this summons is not supposed to be the summons in this application. If this is the summons, then its missing its affidavit in support and the application fails on that ground only. If this is the affidavit, then it has no summons and we cant proceed where there is no summons.

It is not a typing error as these are two completely different names and persons. Neither can it be amended orally. The application is fatally defective. It also would not reflect well on the Courts record if an oral amendment were to be allowed. The record would look disorganized, atleast to a neutral party perusing through it. It is not a technicality first, because of the importance of an affidavit and its probative value which requires it to be succinctly clear in all its particulars and secondly, Article 126 (2) (e) was not intended by the framers of the Constitution to encourage sloppy drafting by advocates. (Consider this as a reply to objection of this P.O). [RAISE AS P.O]

6. The application for leave of court to amend pleadings does not the

proposed amended pleadings. It is not proper for the application or any supporting affidavit to simply list the proposed changes without filing the proposed amended plaint clearly underlining or clearly highlighting the proposed amendments for clarity.

Otherwise Your Worship, how do we know whether the facts introduced will introduce a new action or not for a proper decision to be made? How do we know in an application like this whether on the proposed amendments, the parties sought to be added are necessary to the suit? There is authority in the case of ________________________ [1992] V KALR 90 to the effect that an amendment which does not disclose a cause of action against the Defendant is unjust and should not be allowed. How does this application assist Court to arrive at a proper decision on whether to allow the amendment or not?

Your Worship, my submission on this point is that this application is incomplete. It will inevitably misguide Court. It ought to be struck out.

7. The Affidavit that is intended to be used is incurably defective, as it

was not commissioned by a Commissioner for oaths and as such cannot be and should not be used before the Honourable Court for any purpose. The affidavit was not sworn. As a result, it means that the whole application is not supported by any affidavit in support ad should accordingly be dismissed.

Your Worship, the Supreme Court has had occasion to offer guidance on this aspect in the case of Attorney General =Vs= A.K.P.M Lutaaya in Supreme Court Civil Appeal No. 1 of 2007 (reported in (2007) I HCB 51. The affidavit in that case was not commissioned as is in this case. Court held that failure to swear an affidavit is not just a matter of procedural anomaly but a matter of substantive law. Court expunged the affidavit and refused to exercise its discretion to extend time within which to file a memorandum of appeal on the body of the application only.

For the reasons above mentioned, we should pray that the Court dismisses the Application for amendment.