Wakilii

Gill v B.E.A Timber Company (Civil Suit No. 544 of 1955)

East African Court of Appeal · [1956] EACA 10 · 1956 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Motion by defendant seeking disallowance of plaintiff's amended plaint filed without leave
Decision
Amended plaint allowed to stand; defendant's application for disallowance refused

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that Order 6 rule 19 permits amendment of a plaint without leave before the expiration of 21 days from the date specified for appearance, even where no summons has been served. An amendment introducing an allegation of fraud will be allowed where the original pleading contained allegations analogous to fraud and the particulars remain unchanged. Such an amendment is not barred by limitation where it is based entirely on facts already pleaded. The motion to disallow the amendments was dismissed with costs.

Outcome

Amended plaint allowed to stand; defendant's application for disallowance refused

Facts

The plaintiff filed the original plaint on 21 June 1955 alleging misrepresentation and concealment of material facts by the defendant in obtaining a Rent Control Board order, but did not specifically allege fraud. The summons was not served. On 19 June 1956, the plaintiff filed an amended plaint without leave, introducing a specific allegation of fraud and a new prayer for relief that the Board's order be set aside. The particulars of the misrepresentation and concealment remained unchanged. The defendant was served with both plaints on 9 July 1956, entered appearance on 17 July 1956, and moved on 2 August 1956 to have the amendments disallowed on grounds that: (1) the amended plaint was filed out of time without leave; (2) a new allegation of fraud had been introduced; (3) the fraud claim would have been statute-barred when the amended plaint was filed; and (4) new relief was claimed.

Issues

  1. Whether an amended plaint filed without leave was filed within the time allowed by Order 6 rule 19.
  2. Whether the Court has power to extend time for an application to disallow amendments under Order 6 rule 21.
  3. Whether a new allegation of fraud can be introduced by amendment where the original plaint pleaded allegations analogous to fraud.
  4. Whether an amendment introducing a fraud allegation is barred by limitation where the particulars relied on remain unchanged from the original plaint.
  5. Whether a claim for new relief should be disallowed at the interlocutory stage.

Orders

  • Motion dismissed.
  • Costs awarded to the respondent.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Construction of Order 6 Rule 19 — Meaning of 'Within 21 Days'
Order 6 rule 19 is the only provision under which a plaint may be amended without leave. The phrase 'within 21 days' in rule 19 means 'before the expiration of' the specified period and not 'within 21 days on either side of the limit'. Accordingly, even where no summons has been served and no date specified for appearance, an amended plaint filed before the expiration of 21 days from the date specified in the summons falls within the time allowed by rule 19.
Civil Procedure — Amendment of Pleadings — Application to Disallow Amendments — Order 6 Rule 21 and Order 49 Rule 5
Application for disallowance of amendments to a plaint should normally be made by Chamber Summons under Order 6 rule 21 within 15 days from the date of service of the amended plaint. The Court has power under Order 49 rule 5 to extend the time for making such application where the circumstances warrant.
Civil Procedure — Amendment of Pleadings — Introduction of Fraud Allegation — Allegations Analogous to Fraud
Although a Court will not usually allow an amendment to raise an allegation of fraud not made in the original pleading, this rule is not absolute and does not apply where the original pleading made allegations analogous to fraud such as misrepresentation, undue influence, or concealment of material facts.
Civil Procedure — Amendment of Pleadings — Limitation — New Allegation Based on Existing Facts
Although a new cause of action introduced by amendment would normally be disallowed if the action would have been statute-barred on the date the amended plaint was filed, this will not be so if the allegation made is based entirely on facts already alleged in the original plaint. Where the particulars relied upon remain unchanged and were pleaded from the beginning of the suit, the amendment introducing an allegation of fraud does not constitute a new cause of action for limitation purposes.
Civil Procedure — Amendment of Pleadings — New Relief — Discretion to Allow
Where a claim for new relief introduced by amendment is not statute-barred and constitutes proper relief in the circumstances, it should not be disallowed at the interlocutory stage. The question whether the relief is appropriate can be determined at trial.

Legislation cited (3)

Cases cited (2)

  • Riding v Hawkins (1889) 14 PD 56
  • Derry v Peek (1889) 14 App Cas 337

Full judgment

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Gill v B.E.A Timber Company (Civil Suit No. 544 of 1955) [1956] EACA 10 (1 January 1956)
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.