Wakilii

Joyce Grace Katende v Sulaiman Simagamaga (Civil Appeal No.44 of 1990)

High Court · [1993] UGHC 6 · 1993 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application by Chamber Summons for leave to amend a Notice of Motion filed under Order 6 Rule 18 of the Civil Procedure Rules, following dismissal of an appeal in the High Court
Decision
Application granted with leave to amend the Notice of Motion

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court held that leave to amend a Notice of Motion should be freely allowed under Order 6 Rule 18 of the Civil Procedure Rules where no injustice is caused to the other party and the amendment does not substitute one distinct cause of action for another. The court found no falsity in the supporting affidavit and no prejudice to the respondent. The application to amend was granted with costs in the cause.

Outcome

Application granted with leave to amend the Notice of Motion

Facts

The appellant was the plaintiff in a land trespass suit at the Magistrates Grade II Court, Mpigi. Judgment was entered in her favour ordering the respondent to vacate the disputed land at Namagoma. The respondent appealed to the Chief Magistrate Court, Mpigi, which allowed the appeal. The appellant sought leave to appeal to the High Court under section 232(1)(c)(4) of the Magistrates Court Act 1970, but the Chief Magistrate dismissed the application. Leave was later granted by Kityo J. in the High Court on 13 November 1990. When the matter came before Kalanda J. on 9 May 1991, the appeal was dismissed as incompetent on the ground that it was a provisional Memorandum of Appeal. The appellant's counsel discovered that the Judge had been given the wrong file (Civil Appeal No. 7/90 instead of Civil Appeal No. 44/90) and filed a Notice of Motion to set aside the dismissal order. Counsel then sought leave to amend the Notice of Motion to include mention of the wrong file number and reasons for arriving late to court. The respondent opposed the application on grounds that the original Notice of Motion already covered the grounds, that the applicant was introducing new evidence that should have been adduced earlier, and that too much time had elapsed.

Issues

  1. Whether the court should grant leave to amend the Notice of Motion filed under Order 6 Rule 18 of the Civil Procedure Rules.
  2. Whether the proposed amendment would prejudice the rights of the respondent.
  3. Whether the affidavit in support of the application contained false statements that would defeat the application.

Orders

  • Application to amend the original notice of motion allowed.
  • Costs in the cause.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Notice of Motion — Whether Notice of Motion is a pleading
A Notice of Motion is a kind of petition and falls within the definition of 'pleading' under section 2 of the Civil Procedure Act, Cap 65, such that an application to amend a Notice of Motion is properly brought under Order 6 Rule 18 of the Civil Procedure Rules.
Civil Procedure — Amendment of Pleadings — Principles — Exercise of discretion
Under Order 6 Rule 18 of the Civil Procedure Rules, amendments to pleadings 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 — Limitations — New cause of action
The court will not refuse to allow an amendment simply because it introduces a new cause of action, but there is no power to enable one distinct cause of action to be substituted for another or to change the subject matter by means of amendment.
Civil Procedure — Amendment of Pleadings — Grounds for refusal — Prejudice to opposite party
The court will refuse leave to amend where the amendment would prejudice the rights of the opposite party existing at the date of the proposed amendment.
Civil Procedure — Affidavits — False affidavits — Effect on application
An application supported by a false affidavit is bound to fail because the applicant in such case does not go to the court with clean hands to tell the truth. However, where the facts sworn in the affidavit are correct and the affidavit is not controverted by an affidavit in reply, it remains unchallenged.
Civil Procedure — Administration of justice — Substance over form — Merits of dispute
The administration of justice normally requires that the substance of all disputes should be investigated and decided upon on their merits, and errors and lapses should not bar an applicant from pursuing his rights.

Legislation cited (3)

Cases cited (7)

  • Eastern Bakery v Costellino [1958] EA 461
  • Tidlasly v Harper (1878) 10 Ch D 373
  • Clarapeds Vs. Commercial Union Association 1883 VLR 262
  • Budding v Murdoch (1875) 1 Ch D 42
  • Welshot v Noel (1878) 19 QBD 399
  • Essaji v Solanki [1968] EA
  • Baritatan Kananura (Civil Appeal No. 47 of 1976)

Full judgment

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Joyce Grace Katende v Sulaiman Simagamaga (Civil Appeal No.44 of 1990) [1993] UGHC 6 (2 December 1993)
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.