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of Civil Suit No. 09 of 2011)
1. YUSUF GOMBE
2. SOFIA NAKAWUKA
1. BRAIMU NSUBUGA & OTHERS 2. SWAMADU NJUKI
3. HASSAN GOMBE
RESPONDENTS/ CHAMBER SUMMONS
(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  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  EA 648 that a document
he lost all rights to sue in respect of that land.O] 4. it is stated that the owner of the disputed land is a one Sofia Nakawuka. This is not the correct application. 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. The intended amendment will have the effect of introducing a new cause of action and should be disallowed.O] 3. their inclusion in this application is an irregularity. Because he has no locus to present the main suit. as is being sought in the present application. the 1st Applicant alleges that he is the administrator of the Late Asan Mutaganyika. This application is different from the one supposed to be entertained by the Court for the orders sought or desired by the Plaintiff. In the Plaint. 09 of 2011 and the present Miscellaneous Application. 09 of 2011. This application cannot continue in its current form. 09 of 2011). [RAISE AS P. who is clearly not a party (atleast as yet!!) to the main suit giving rise to this application. [RAISE AS A P. In the Plaint in Civil Suit No. Parties who have been added on the Plaintiff’s own accord. [RAISE AS A P. Having exercised his powers as an Administrator and purportedly given the contested land to a one Sofia Nakawuka. it necessarily follows that he has no right to present the current application.O) 2. This fact is further buttressed in the defective affidavit that accompanies the application. the action is ‘’for interpretation of letters of administration and for vacant . The title of the pleadings in the application include parties who are not party to the main suit (Civil Suit N. In the absence of leave of Court to so add them. 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 his capacity as the administrator of the estate of the late Asan Mutaganyika or in any other capacity for that matter.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. In paragraph 7 of the same.
The prayer or order may be sought for any other action and not necessarily trespass. Vacant possession does cannot by itself constitute a cause of action but a prayer based on some legal wrong. which there isn’t. In any event. the underlying action is trespass for Counsel to argue that what is missing are simply particulars of trespass. There is a discrepancy in the chamber summons and the affidavit in support of the chamber summons. rightly in my view. But even if there was such cause of action disclosed by the Plaint. 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. the Plaint falls flat and would not disclose any cause of action. 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. Having dropped the prayer for interpretation of letters of administration. The case of _________________is authority for this position. which is not allowed in law. There is simply nothing to amend.possession’’. But a prayer for vacant possession does not mean that there should have been an action in trespass. While the application specifies . 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.[REPLY] 5. 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. It certainly doesn’t follow that whenever the prayer is for vacant possession. trespass. even if introduced shall not serve the purpose for which Counsel would love it to serve. Counsel has indicated that he intends to introduce particulars of trespass to back up vacant possession and complete his cause of action. Counsel. agrees that the action for interpretation of letters of administration is unknown to law.
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. Article 126 (2) (e) was not intended by the framers of the Constitution to encourage sloppy drafting by advocates.Wetaka Andrew as the Counsel deponing the affidavit in support of the application. the parties sought to be added are necessary to the suit? There is authority in the case of ________________________  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.O).O] 6. atleast to a neutral party perusing through it. It is not a technicality first. Otherwise Your Worship. this summons is not supposed to be the summons in this application. It is not a typing error as these are two completely different names and persons. The application for leave of court to amend pleadings does not the proposed amended pleadings. How does this application assist Court to arrive at a proper decision on whether to allow the amendment or not? . then it has no summons and we can’t proceed where there is no summons. [RAISE AS P. The record would look disorganized. If this is the affidavit. then its missing its affidavit in support and the application fails on that ground only. 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. It also would not reflect well on the Court’s record if an oral amendment were to be allowed. If this is the summons. This affidavit is not supposed to be the affidavit in support of the current application and should be expunged from the record. Neither can it be amended orally. The application is fatally defective. because of the importance of an affidavit and its probative value which requires it to be succinctly clear in all its particulars and secondly. (Consider this as a reply to objection of this P. Or in the alternative. the affidavit is on the contrary deponed to by a one Gilbert Nuwagaba.
Court held that failure to swear an affidavit is not just a matter of procedural anomaly but a matter of substantive law. It will inevitably misguide Court. Your Worship. It ought to be struck out. we should pray that the Court dismisses the Application for amendment. the Supreme Court has had occasion to offer guidance on this aspect in the case of Attorney General =Vs= A. For the reasons above mentioned. As a result. The affidavit in that case was not commissioned as is in this case.M Lutaaya in Supreme Court Civil Appeal No. 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. 1 of 2007 (reported in (2007) I HCB 51. 7.Your Worship. my submission on this point is that this application is incomplete. The Affidavit that is intended to be used is incurably defective. . 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.K. The affidavit was not sworn. it means that the whole application is not supported by any affidavit in support ad should accordingly be dismissed.P.
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