Wakilii

Lubega Ahmed Kasumba and Others v Badda Elaisha Grace and Nankya Justine (Miscellaneous Application No. 141 of 2024)

High Court · [2025] UGHC 477 · 2025 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend defence, counterclaim and witness statements in ongoing civil suit
Decision
Application for leave to amend pleadings dismissed with costs

Observed later treatment

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Holding

The court dismissed an application to amend defence and counterclaim filed four years after suit commencement and after the plaintiffs had closed their case. The proposed amendment sought to change the defendants' claim from adverse possession to lawful purchase. The court held that the amendment would prejudice the respondents by denying them an opportunity to rebut the new fact, amounting to trial by ambush contrary to Article 28(1) of the Constitution. The application was not brought in good faith given the timing and the applicants' prior knowledge of the facts.

Outcome

Application for leave to amend pleadings dismissed with costs

Facts

The applicants/defendants in Civil Suit No. 968 of 2020 sought to amend their written statement of defence, counterclaim and witness statements. The main suit was instituted in 2020 and by the time of this application in 2024, the plaintiffs had presented all their evidence and closed their case. The applicants initially pleaded that they were in adverse possession of the suit land for over 41 years. They now sought to amend their pleadings to state that they lawfully purchased the suit land rather than being adverse possessors. The respondents opposed the application on grounds that it was brought with inordinate delay, was malafide, and intended to delay the conclusion of the case. A preliminary objection was raised that the affidavit in support was defective for lacking proper written authorisation from the 2nd-5th applicants.

Issues

  1. Whether the affidavit in support of the application is defective for being deponed by the 1st Applicant on behalf of the 2nd-5th Applicants without written authorisation.
  2. Whether the Applicants have grounds to warrant the grant of leave to amend their defence, counterclaim and witness statements.

Orders

  • Application dismissed.
  • Costs awarded to the Respondents.

Rules and key headnotes

Civil Procedure — Affidavits — Written Authorisation — Modern Approach
An affidavit in support of an application is evidence and does not require written authorisation but rather knowledge of the deponent. The act of rendering affidavits without authority defective has no basis in the rules of evidence and procedure under modern precedent.
Civil Procedure — Amendment of Pleadings — Timing and Prejudice
An amendment to pleadings that introduces a new fact after the opposing party has closed their case will be refused where it denies the opposing party an opportunity to rebut that fact, as this amounts to trial by ambush contrary to Article 28(1) of the Constitution which guarantees equality and fairness in proceedings.
Civil Procedure — Amendment of Pleadings — Good Faith and Timing
An application to amend pleadings filed four years after suit commencement and only after the opposing party has closed their case will not be considered to have been brought in good faith, particularly where the applicant had knowledge of the facts from the outset and offers no satisfactory explanation for the delay.
Civil Procedure — Amendment of Pleadings — Best Practice
While not a mandatory requirement of law, it is good and desirable practice for an applicant seeking to amend pleadings to file a proposed amended pleading showing the amendments in red ink or by underlining the intended changes, as this makes it easier for the court to contextualise the desired amendment and make an appropriate order.

Legislation cited (7)

Cases cited (8)

  • Taremwa Kamishana Tomas V Attorney General, Vincent Kafero & 11 others V Attorney General Miscellaneous Application No. 48 of 2012
  • Namutebi Matilda v Ssemanda Simon and 2 Others (Miscellaneous Application No. 430 of 2021)
  • Dr. Lam Lagoro James v Muni University (HCMC No. 07 of 2016)
  • Gaso Transport Services (Bus) Ltd v Martin Adala Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Hasham Meralli vs Javer Kassam & Sons Ltd [1957] EA 503
  • Meru Farmers' Co-operative Union vs Abdu Aziz Suleman (No. 1) [1966] EA 436
  • Amos Byamukama and Another v Kompaire (Civil Appeal No. 42 of 2021)
  • Soon Yeon Kong Kim and Another v Attorney General (Constitutional Reference No. 6 of 2007)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Lubega Ahmed Kasumba and Others v Badda Elaisha Grace and Nankya Justine (Miscellaneous Application No. 141 of 2024) [2025] UGHC 477 (4 July 2025)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.