Wakilii

George and Company v Pritam's Auto Service (Civil Appeal No. 74 of 1954)

East African Court of Appeal · [1955] EACA 293 · 1955 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Appeal from Supreme Court of Kenya ruling disallowing amendments to plaint
Decision
Matter remitted to Supreme Court for trial on the amended plaint

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that amending a plaint from a trade name to the plaintiff's own name does not constitute a substitution of parties and can be done without leave under Order 6 rule 19. Following Phakey v World Wide Agencies Ltd, the change was merely a correction of misnomer. The Court further held that while appellate courts normally do not interfere with a judge's discretion on amendments, they have power and duty to do so where the exercise of discretion will result in injustice. The trial judge erred in disallowing the amendment where the justice of the case favoured the plaintiff.

Outcome

Matter remitted to Supreme Court for trial on the amended plaint

Facts

The appellant M. P. George filed a plaint against the respondent claiming Sh. 8,000 due on three dishonoured promissory notes, alternatively for goods sold and delivered. He sued under his trade name 'George & Company'. The respondent filed a defence pleading that George & Company was not a legal entity and could not sue in its own name. The appellant's application for summary judgment was rejected on the ground that he must sue in his own name under Order 29 rule 1. Within the prescribed time, the appellant filed an amended plaint under Order 6 rule 19 suing in his own name 'M. P. George trading as George & Company'. He also reversed the order of his claims, making goods sold and delivered the primary claim and the promissory notes the alternative claim, pleading a special agreement that if any one note was dishonoured the whole debt would become immediately due. The respondent applied under Order 6 rules 17 and 21 to disallow the amendments. The trial judge disallowed the amendments, holding that the name change constituted a change of parties requiring leave under Order 1 rule 10, and that the amended plaint was ambiguous and likely to embarrass the fair trial.

Issues

  1. Whether amendment of a plaint from a trade name to the plaintiff's own name constitutes a change of parties requiring leave under Order 1 rule 10.
  2. Whether the Court of Appeal should interfere with a trial judge's discretion to disallow amendments to pleadings under Order 6 rule 21.
  3. Whether the amended plaint was ambiguous or likely to embarrass the fair trial of the suit.

Orders

  • Appeal allowed.
  • Ruling of Cram, Acting J., reversed.
  • Chamber summons taken out by the respondent under Order 6 rules 17 and 21 dismissed.
  • Appellant to have costs of the appeal and costs of the summons.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Change from Trade Name to Own Name — Whether Substitution of Parties
Where a plaintiff sues under a trade name and subsequently amends the plaint to sue in his own name, this does not constitute a substitution of parties but merely a correction of misnomer, and can be effected without leave under Order 6 rule 19 of the Civil Procedure Rules.
Civil Procedure — Amendment of Pleadings — Appellate Interference with Judicial Discretion
While a Court of Appeal will not normally interfere with the exercise of a trial judge's discretion as to whether an amendment should be allowed except on grounds of law, the Court has the power and duty to interfere if on other grounds the trial judge's discretion will result in an injustice.
Civil Procedure — Amendment of Pleadings — Exercise of Discretion under Order 6 Rule 21
Under Order 6 rule 21 of the Civil Procedure Rules, the court's discretionary power to disallow an amendment should not be exercised unless the court is satisfied that the justice of the case requires disallowance.
Civil Procedure — Pleadings — Alternative Claims — Promissory Notes with Acceleration Clause
A pleading claiming alternatively on promissory notes subject to an agreement that if one note is dishonoured the whole debt becomes immediately due and payable is not ambiguous or embarrassing, and represents a common form of commercial practice.

Legislation cited (5)

  • Civil Procedure (Revised) Rules Order 1 rule 10
  • Civil Procedure (Revised) Rules Order 6 rule 17
  • Civil Procedure (Revised) Rules Order 6 rule 19
  • Civil Procedure (Revised) Rules Order 6 rule 21
  • Civil Procedure (Revised) Rules Order 29 rule 1

Cases cited (11)

  • Phakey v World Wide Agencies Ltd (15 EACA 1)
  • Karsan v Raghavjee (10 EACA 10)
  • Evans v Bartlam [1937] AC 473
  • Devji Goa and others v. Tricumji Jiwandas and others (1945) 32 All Ind. Rep. 71
  • Noble Lowndes & Partners v Hadfields Ltd [1939] Ch 569
  • Establissement Baudelot v. Graham (1953) 1 A.E. 149
  • Hunt v. Rice & Son. Ltd. (1937) 3 A.E. 715
  • Wymer v Dodds (1879) 11 Ch 436
  • Tildesley v Harper (1876) 3 Ch 277
  • Mason & Son v Mogridge (1892) 8 TLR 805
  • Bagot v Easton (7 Ch D 8)

Full judgment

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

George and Company v Pritam's Auto Service (Civil Appeal No. 74 of 1954) [1955] EACA 293 (1 January 1955)
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.