Wakilii

Gonget v Tuhairwe & Another (Miscellaneous Application 2898 of 2023)

High Court · [2024] UGCOMMC 160 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend plaint in pending civil suit
Decision
Application granted with directions for filing amended plaint and further pre-trial processes

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Court granted leave to amend plaint, holding that additional particulars of fraud do not introduce a new cause of action but rather determine real questions in controversy. The limitation period does not bar fraud claims once brought to the court's attention. Amendment made eight years after suit filing does not prejudice respondents where hearing has not commenced and prejudice is curable by costs. Applicant ordered to bear costs.

Outcome

Application granted with directions for filing amended plaint and further pre-trial processes

Facts

The applicant obtained a loan of UGX 5,000,000 from the 2nd respondent and deposited the certificate of title to her land as security. When she failed to pay the loan, she attempted to communicate with the 2nd respondent to settle the outstanding balance but the 2nd respondent allegedly concealed the balance and declined to acknowledge payments. The applicant later discovered that her title had been fraudulently transferred to the 1st respondent. She filed a civil suit in 2016 claiming fraud and seeking cancellation of the transfer. Eight years later, through new counsel, she applied to amend the plaint to include particulars that the loan transaction was illegal due to absence of a valid money lending license and to request the court to reopen the transaction to determine the actual amount owed.

Issues

  1. Whether leave should be granted to the applicant to amend her plaint in Civil Suit No. 0666 of 2023.
  2. Whether the proposed amendment introduces a new cause of action.
  3. Whether the proposed amendment is barred by the law of limitation.
  4. Whether the amendment will prejudice the respondents.

Orders

  • The Applicant is granted leave to amend her plaint.
  • The Applicant should file and serve its amended plaint within ten (10) working days from the date of this ruling.
  • The Respondents, if they so wish, should file a reply to the amended plaint and serve the same within ten (10) days from the date of service of the amended plaint.
  • Once the directions above are complied with, the parties should observe the necessary pre-trial processes with the view of having the suit heard and determined.
  • The Applicant shall bear the costs of this application.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Principles for Grant of Leave
Amendments to pleadings are allowed by the courts so that the real question in controversy between the parties is determined and justice is administered without undue regard to technicalities. Amendments sought before the hearing should be freely allowed if they can be made without injustice to the other side and there is no injustice if the other side can be compensated by costs.
Civil Procedure — Amendment of Pleadings — New Cause of Action
The court will not refuse to allow an amendment simply because it introduces a new cause of action provided it would not change the suit into one of a substantially different character. Where additional material facts are pleaded that arise from the same transaction and do not change the character of the suit, no new cause of action is introduced.
Civil Procedure — Amendment of Pleadings — Limitation Period
Order 6 Rule 19 of the Civil Procedure Rules does not provide a time limit within which to make an amendment. Where the claim is based on fraud, allegations of fraud cannot be ignored by the court the moment they are brought to the court's attention, and such claims withstand the limitation period.
Civil Procedure — Illegality — Raising at Any Stage
Illegality can be raised at any time before a court of law and the court is bound to investigate it. A court of law cannot sanction what is illegal and an illegality once brought to the attention of court overrides all questions of pleadings, including any admission.
Civil Procedure — Amendment of Pleadings — Prejudice
Where an amendment of pleadings causes prejudice to the adverse party and such prejudice is curable by an award of costs, the court may allow the amendment. The court may impose short deadlines for effecting the amendment to ensure that the trial is not derailed. Where no hearing has commenced, an award of costs and imposition of shorter compliance deadlines will negate any prejudice.

Legislation cited (5)

Cases cited (10)

  • Molowoza Brothers Ltd v N. Shah & Co. Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Gaso Transport Services (Bus) Ltd v Obene (1990-1994) EA 88
  • Eastern Bakery v Castelinov (1958) EA 451
  • Musoke Mike v Kalumba James (Revision Cause No. 09 of 2019)
  • Harrison C. Kariuki v Blue Shield Insurance Co. Ltd (no citation provided) [2006] eKLR
  • Sibamanyo Estates Limited v Equity Bank Uganda Limited & Others (High Court Miscellaneous Application No. 414 of 2022)
  • Sarah Nyakato v Lin Jeng Liang & 5 Others (Miscellaneous Application No. 316 of 2022)
  • Makula International v His Eminence Cardinal Emmanuel Nsubuga (1982) HCB 11
  • Harry Ssempa v Kambagambire David (High Court Civil Suit No. 408 of 2014)
  • Lyamuleme David v Attorney General (Supreme Court Civil Appeal No. 4 of 2013)

Full judgment

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

Gonget v Tuhairwe & Another (Miscellaneous Application 2898 of 2023) [2024] UGCommC 160 (27 May 2024)
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.