Mombasa Salt Works Limited and Another v Ali Madhi Osman t a Camel Trade Promoters (Civil Appeal No. 30 of 2002)

Court of Appeal · [2003] UGCA 34 · 2003 Appeal Allowed ✦ AI-generated summary ↓ Download

Jurisdiction

Uganda

Case Type

Civil appeal from a ruling of the High Court rejecting and striking out an amended plaint under Order 7 rule 11 of the Civil Procedure Rules

Decision

Appeal allowed; suit remitted to the High Court at Kampala for hearing by another judge

The full judgment

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Holding

The Court of Appeal held that the trial judge erred in rejecting the amended plaint under Order 7 rule 11 of the Civil Procedure Rules merely because counsel failed to delete the repeated business name 'Camel Trade Promoters'. Reading the plaint together with its annextures, it was clear the appellants intended to sue the respondent for breach of contract, and the defect was a mere misnomer curable by amendment under section 103 of the Civil Procedure Act. The plaint disclosed a cause of action and was neither time-barred, frivolous nor vexatious. The appeal was allowed with costs and the suit remitted to the High Court for hearing by another judge.

Facts

The appellants, Mombasa Salt Works Limited and Global Distributors Limited, jointly sued the respondent, Ali Madhi Osman, who carried on business under the names Camel Trade Promoters and Camel Trading Company, for special and general damages for breach of contract. The parties had a business transaction in which the appellants supplied and the respondent received goods worth USD 43,838 but did not pay. After the respondent objected that the plaint was defective, the trial judge ordered amendment to delete the title 'Camel Trade Promoters' and remove reference to a limited company. Counsel for the appellants amended the plaint but the business name 'Camel Trade Promoters' remained undeleted. The respondent again applied to strike out the plaint. Counsel for the appellants made an oral application to delete the repeated words, which the trial judge ignored. The trial judge subsequently struck out the defendant and rejected the plaint under Order 7 rule 11(a), (d) and (e) of the Civil Procedure Rules, holding the plaint was left without a defendant.

Issues

Whether the trial judge was justified in rejecting and striking out the amended plaint under Order 7 rule 11(a), (d) and (e) of the Civil Procedure Rules.
Whether the failure to delete the repeated business name 'Camel Trade Promoters' was a fatal defect or a curable misnomer.
Whether the trial judge ought to have allowed amendment of the plaint to correct the misnomer under section 103 of the Civil Procedure Act.

Orders

Appeal allowed with costs to the appellants.
Order that the original file of the suit be returned to the High Court at Kampala for re-allocation to another judge to hear and dispose of the dispute.

Key headnotes

Pleadings — Misnomer of Party — Correction by Amendment

Where, reading the plaint and all its annextures as a whole, a reasonable person would have no doubt as to the identity of the party intended to be sued, an error in describing that party is a mere misnomer which may be corrected by amendment rather than a ground for striking out the plaint.

Pleadings — Rejection of Plaint — Order 7 rule 11 Civil Procedure Rules

A plaint should not be rejected under Order 7 rule 11 of the Civil Procedure Rules for drafting defects such as a repeated party name where the plaint discloses a cause of action and is not time-barred, frivolous or vexatious; the court must consider only the plaint and its annextures and any other defect may be cured by amendment.

Amendment of Pleadings — Power of Court under s.103 Civil Procedure Act

Section 103 of the Civil Procedure Act empowers a court to amend any defect or error in proceedings for the purpose of determining the real question or issue; it does not vest the court with power to reject documents merely because they contain errors.

Cause of Action — Ingredients — Auto Garage v Motokoi Test

A plaint discloses a cause of action where it shows that the plaintiff enjoyed a right, that the right was violated, and that the defendant violated it; in determining this only the plaint and its annextures are to be examined and other defects may be put right by amendment.

Amendment of Pleadings — Oral Application during Proceedings

A court may in a proper case allow a pleading to be amended during the trial on an oral application, and a trial judge who ignores or rejects such an application without giving any reason errs.

Legislation cited (12)

Civil Procedure Rules Order 7 rule 11(a), (d) and (e)
Civil Procedure Rules Order 6 rule 18
Civil Procedure Rules Order 6 rule 24
Civil Procedure Rules Order 18 rule 4
Civil Procedure Rules Order 42 rr.1 and 2
Civil Procedure Act s.7
Civil Procedure Act s.83
Civil Procedure Act s.102
Civil Procedure Act s.103
Civil Procedure Act s.2
Judicature Statute No. 13 of 1996 s.35
Constitution of Uganda article 126(2)(e)

Cases cited (6)

Katuramu vs. Attorney General (1986) HCB 40
Davies Vs. Elsby Brothers Limited (1960) 3 All E.R. 676
J.B. Kohli and others Vs. Bachulal Popatlal [1964] E.A. 219
D.D. Bawa Limited Vs. G.S. Didar Singh [1961] EA 282
S.S. Gupta Vs. Inder Sing Bharma [1965] E.A. 439
Auto Garage and others vs Motokoi (1971) EA 574

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