Wakilii

Francis Brake Lubega v Barnabas Taremwa (HCT-00-CC-MA 421 of 2008)

High Court · [2009] UGCOMMC 52 · 2009 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend pleadings arising from Commercial Court civil suit
Decision
Preliminary objection dismissed; application allowed to proceed on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that although the application was brought under the wrong rule (Order 6 rule 18 instead of rule 19), the procedural defect could be cured under Article 126(2)(e) of the Constitution. The application was brought by the correct procedure (Chamber Summons) and allowing it to proceed would cause no injustice. Preliminary objection overruled.

Outcome

Preliminary objection dismissed; application allowed to proceed on merits

Facts

The Applicant sought leave to amend his pleadings by Chamber Summons under Order 6 rules 18 and 30 and Section 98 of the Civil Procedure Act. The Respondent raised three preliminary objections, the first being that the application was wrongly brought under rule 18, which concerns striking out unnecessary matter, rather than under rule 19, which governs amendments to pleadings. The amendment sought was to plead particulars of fraud in the Written Statement of Defence. Counsel for the Applicant conceded the error and requested the court to overlook the technicality under Article 126(2)(e) of the Constitution.

Issues

  1. Whether the application for amendment of pleadings was properly brought under Order 6 rule 18 of the Civil Procedure Rules.
  2. Whether the procedural defect in citing the wrong rule should prevent the court from hearing the application on its merits.

Orders

  • Preliminary objection overruled.
  • Application to proceed on merit.
  • Costs to be costs in the cause of the main application.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Wrong Rule Cited
An application to amend pleadings brought by the correct procedure (Chamber Summons) but citing the wrong rule (Order 6 rule 18 instead of rule 19) may be allowed to proceed on merit if no injustice would result to the opposing party.
Constitutional Law — Article 126(2)(e) — Substantive Justice over Technicalities
Article 126(2)(e) of the Constitution requires courts to administer substantive justice without undue regard to technicalities. Procedural defects may be cured by invocation of this provision where the irregularity would not lead to injustice.
Civil Procedure — Preliminary Objections — Test for Overruling
The test for determining whether a procedural irregularity should prevent an application from being heard on merit is whether the non-observance of the procedural rule would lead to injustice. If it would not, the court will overlook the irregularity.

Legislation cited (6)

Cases cited (2)

  • Alcon International v Kasirye Byaruhanga & Company Advocates (1995) III KALR 91
  • Intraship (U) Ltd v G. M. Combine (U) Ltd (1994) VI KALR 42

Full judgment

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

Francis Brake Lubega v Barnabas Taremwa (HCT-00-CC-MA 421 of 2008) [2009] UGCommC 52 (4 February 2009)
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.