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Gaso Transport Services (Bus) Ltd v Martin Adala Obene (Civil Appeal No. 4 of 1994; Civil Suit No. 740 of 1991)

Supreme Court · [1994] UGSC 64 · 1994 Appeal Allowed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court ruling refusing the second defendant leave to amend its written statement of defence
Decision
Appeal allowed; the High Court ruling refusing leave to amend was set aside and the matter remitted to the High Court for continuation of the hearing after amendment of the appellant's written statement of defence.

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Holding

The Supreme Court allowed the appeal. Although the application to amend the written statement of defence was belated and the appellant's counsel had erred procedurally, the trial judge failed to address all the principles governing amendment. The overriding object of the court is to decide the real controversy between the parties, not to punish them for the mistakes of counsel. An amendment should be allowed where any injury to the opposing party can be compensated by costs and where the application is neither mala fide nor barred by law. The proposed amendment — that the appellant did not exist when the accident occurred — went to the real question of liability. The ruling was set aside and the matter remitted for continuation after amendment.

Facts

The respondent claimed to have been a passenger injured in a road accident near Masaka on 10 October 1989 involving a bus, registration UXS 106. He sued Akamba (U) Ltd (first defendant) and the appellant (second defendant) for damages. Akamba had earlier sold the bus to Joy Kusiime before re-registration; she resold it to a 'Gaso Transport Service'. During the trial, additional evidence revealed that two companies bore the Gaso name: Gaso Transport Services Ltd, incorporated on 7 December 1981, and the appellant, Gaso Transport Services (Bus) Ltd, incorporated on 22 January 1990 — after the accident. The appellant sought leave to amend its written statement of defence to plead that it did not exist at the time of the accident and had been wrongly sued. The trial judge refused leave, citing the belated application, counsel's failure to attach the proposed amendment, deficient supporting affidavits, and the risk of reopening the closed defence case. The appellant appealed.

Issues

  1. Whether the trial judge erred in refusing the appellant leave to amend its written statement of defence under Order 6 Rule 18 of the Civil Procedure Rules.
  2. Whether an appellate court should interfere with the trial judge's exercise of discretion in refusing leave to amend a pleading.

Orders

  • Appeal allowed.
  • Ruling and order of the trial judge set aside.
  • Case remitted to the High Court for continuation of the hearing after the amendment has been effected.
  • Appellant to amend and file its written statement of defence within fifteen (15) days, and serve the respondent and Akamba (U) Ltd thereafter.
  • Costs of the appeal awarded to the respondent.

Key headnotes

Civil Procedure — Amendment of Pleadings — Object of Amendment
The object of the court in allowing amendment of pleadings is to decide the real questions in controversy between the parties, not to punish them for mistakes made by counsel in the conduct of their case.
Civil Procedure — Amendment of Pleadings — Judicial Discretion under O.6 r.18
Order 6 Rule 18 confers a wide but judicial, not arbitrary, discretion to permit amendment of pleadings at any stage of the proceedings; amendment cannot be claimed as of right, and the guiding principle is to do substantial justice rather than punish a party on technical grounds.
Civil Procedure — Amendment of Pleadings — Belated Applications and Burden on Applicant
The more advanced the progress of the litigation, the heavier the burden on the applicant to satisfy the court that leave to amend ought to be granted, and a belated applicant must explain why the application was not made earlier.
Civil Procedure — Amendment of Pleadings — Injustice Compensable by Costs
An amendment should not be refused where any injury occasioned to the opposing party can be adequately compensated by an award of costs; such an injury is not treated as an injustice that bars the amendment.
Civil Procedure — Amendment of Pleadings — Limits on Discretion (Mala Fides, Prohibition by Law)
Leave to amend should be refused where the application is made mala fide, or where the amendment is expressly or impliedly prohibited by law, such as by the law of limitation, or where it would work irreparable injustice to the other side that costs cannot cure.
Civil Procedure — Appeal — Appellate Interference with Discretion
An appellate court will not interfere with a trial judge's exercise of discretion in allowing or refusing an amendment to a pleading unless it appears that, in reaching the decision, the judge proceeded upon wrong material or upon a wrong principle.

Legislation cited (1)

  • Civil Procedure Rules O.6 r.18

Cases cited (16)

  • Uganda Credit & Savings Bank Vs Yosam Muze (1960) E.A. 660
  • Eastern Bakery Vs Castelino (1958) E.A. 461
  • Tildsley Vs Harper (1878-9) 10 Ch. D. 396
  • McCoy Vs Allibhai (1938) 5 E.A.C.A. 70
  • Jupiter Insurance Vs Hasham (1960) E.A. 462
  • Jami Properties Vs Dar-Es-Salaam (1966) E.A. 281 at page 285
  • British Indian General Insurance Co. Vs Parma (G.M.) & Co. (1966) E.A. 172
  • Kara Vs Makam (1950) 17 E.A.C.A. 16
  • George Vs Prilain Auto Services (1955) 22 E.A.C.A. 233
  • Mbogo Vs Shah (1968) E.A. 93
  • Waljee's (U) Ltd Vs Ramjis Punjambhas Bugerere Tea Estate Ltd (1971) E.A. 188
  • Steward Vs Northern Metropolitan Tramways Ltd (1886) 16 Q.B.D. 558
  • Cheleta Coffee Vs Melhsen (1966) E.A. 203
  • General Manager E.A.R. & H. Vs Thierstein (1968) E.A. 354
  • Steeds Vs Steeds (1889) 22 QBD 537 at page 542
  • Cropper Vs Smith (1883) 26 Ch. D. 700 at page 711
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.