Wakilii

Ask Without Shame v Nabembezi (MISCELLANEOUS APPLICATION NO. 801 OF 2019)

High Court · [2020] UGHCCD 78 · 2020 Preliminary Objections Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend pleadings arising from civil suit for breach of director's duties
Decision
Both preliminary objections dismissed; main application to proceed on its merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court overruled two preliminary objections raised against an application to amend pleadings. The Court held that Order 12 rule 3(2) CPR, which prescribes 15-day timelines for filing affidavits, did not apply where no Alternative Dispute Resolution or scheduling conference had occurred. The Court also held that a dispute existed as to whether the deponent had been validly removed as director, and insufficient evidence was before the Court to determine his status. Both preliminary objections failed; costs stayed in the cause.

Outcome

Both preliminary objections dismissed; main application to proceed on its merits

Facts

Ask Without Shame, a company with three directors (Ruth Nabembezi, Ettienne Salborn, and Chandi Tome), filed Civil Suit No. 354 of 2019 alleging that Nabembezi, the principal bank signatory, breached her duties by withdrawing USD 40,000 from the company account. During the pendency of the suit, the Applicant alleged Nabembezi withdrew additional funds (USD 51,000 and UGX 20,000,000). The company applied to amend the plaint to increase the refund claim to USD 91,000 and UGX 45,000,000. The Respondent filed an affidavit in reply opposing the application and raised two preliminary objections: that the Applicant's affidavit in re-joinder was filed out of time, and that Ettienne Salborn (who swore the supporting affidavit) was no longer a director, having been removed by board resolution.

Issues

  1. Whether the affidavit in re-joinder was filed out of time contrary to Order 12 rule 3(2) of the Civil Procedure Rules.
  2. Whether Mr. Ettienne Salborn was competent to swear the affidavit in support of the application having allegedly ceased to be a director of the Applicant company.

Orders

  • Preliminary objection No. 1 overruled.
  • Preliminary objection No. 2 overruled.
  • Costs stay in the cause.

Rules and key headnotes

Civil Procedure — Interlocutory Applications — Time Limits for Filing Affidavits — Order 12 rule 3(2) CPR
Order 12 rule 3(2) of the Civil Procedure Rules, which prescribes a 15-day period for filing affidavits in reply or re-joinder, applies only after completion of Alternative Dispute Resolution or a scheduling conference; it does not apply where neither ADR nor a scheduling conference has taken place.
Civil Procedure — Substantive Justice — Article 126(2)(e) Constitution — Technicalities
Where adherence to a procedural technicality may deny a party substantive justice, and no miscarriage of justice arises, the Court should invoke Article 126(2)(e) of the Constitution to allow the matter to proceed on its merits rather than dismiss it on technical grounds.
Company Law — Directors — Removal from Office — Sufficiency of Evidence on Preliminary Objection
Where a preliminary objection challenges the competence of a deponent on the ground that he has been removed as a company director, but a dispute exists as to the validity of the removal resolution and insufficient evidence is before the Court to determine the matter, the preliminary objection must fail.

Legislation cited (12)

Cases cited (2)

  • Dr. Lam Lagoro James v Muni University (Miscellaneous Cause No. 7 of 2016)
  • Makula International Ltd v His Eminence Cardinal Nsubuga & Another (Civil Appeal No. 4 of 1981)

Full judgment

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

Ask Without Shame v Nabembezi (MISCELLANEOUS APPLICATION NO. 801 OF 2019) [2020] UGHCCD 78 (5 February 2020)
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.