Nakudi v Mukasa (Civil Appeal 2 of 1986)

Court of Appeal · [1987] UGCA 4 · 1987 New Trial Ordered ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from High Court ex parte judgment on quantum of damages for breach of a tenancy agreement

Decision

Judgment and decree of the High Court set aside; matter remitted to the High Court for retrial

The full judgment

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Holding

The Court of Appeal held that an amendment of a plaint without leave under Order 6 r.19 of the Civil Procedure Rules may only be made within the periods prescribed (21 days from the date specified in the summons for appearance, or 14 days after filing of defence). Here the amended plaint was filed about three years after that period without leave, so it was improperly before the court. The trial proceedings, being founded on a defective amended plaint, were incurably defective. The court raised this point of law on its own motion despite no party arguing it. The appeal was dismissed, the High Court judgment and decree set aside, and a new trial ordered with no order as to costs.

Facts

In November 1971 the appellant entered a tenancy agreement, modified by a supplementary agreement in May 1972, under which he would complete construction of the respondent's building at Kansanga, Kampala, treating his expenditure as rent paid in advance at Shs. 300 per month, with the house belonging to both parties until the expenses were recovered. The appellant spent funds completing the floor, walls, ceiling, back stairs, pit-latrine and electricity, and entered the house in March 1973 operating a bar. After City Council closure requirements and disputes over the respondent's wish to sell and repay expenditure, the respondent evicted the appellant in March 1976 while he was hospitalised. The appellant referred the dispute to arbitration, but the respondent declined to attend, and the appellant sued in the High Court. The original plaint was filed in 1978; an amended plaint was filed in December 1981 without leave. The respondent did not appear at trial, which proceeded ex parte, and judgment was given for the appellant on damages, against which he appealed on quantum.

Issues

Whether the second ground of appeal complied with the rules governing the framing of grounds of appeal.
Whether the amended plaint, filed without leave three years after the period prescribed by Order 6 r.19, was properly before the court.
Whether trial proceedings founded on an improperly filed amended plaint can be sustained.

Orders

Appeal dismissed.
Judgment and decree of the lower court set aside.
New trial ordered (case remitted to the High Court for retrial).
No order as to costs of the appeal.

Key headnotes

Pleadings — Amendment of Plaint Without Leave — Time Limits under Order 6 r.19

An amendment of a plaint without leave of court may only be made within twenty-one days from the date specified in the summons for appearance, or within fourteen days after the filing of the written statement of defence; an amendment effected outside those periods without leave is improperly before the court.

Pleadings — Defective Amended Plaint — Effect on Trial Proceedings

Where a trial court determines an action on the basis of an amended plaint that was improperly filed and substantially different from the original, the proceedings are incurably defective and must be set aside.

Appeals — Memorandum of Appeal — Framing of Grounds under Rule 65(2)

A memorandum of appeal must set out concisely, under distinct numbered heads and without argument or narrative, the grounds of objection to the decision appealed against, specifying the points of law or fact alleged to have been wrongly decided; a ground that merely contains argument without identifying the wrong decision is defective.

Ex Parte Proceedings — Duty of Court and Appellate Power to Raise Points of Law

In ex parte proceedings the trial court must ensure its decision accords with the law, and an appellate court may, on its own motion, reconsider a point of law affecting the validity of the proceedings even where no party has raised it; a party may not benefit from a decision wrongly decided merely because no appeal was taken on that ground.

Legislation cited (2)

Civil Procedure Rules Order 6 r.19
Court of Appeal Rules r.65(2)

Cases cited (2)

B.E.A. Timber Co v Inder Singh Gill (1959) EA 465
General Manager E.A.R. & H. v Thierstein (1968) EA 354

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.