Wakilii

Kilembe Mines Ltd v Uganda Gold Mines Ltd (HCT-00-CC-MA 312 of 2012)

High Court · [2012] UGCOMMC 71 · 2012 Application Granted — Plaint Struck Out AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to strike out plaint arising from High Court Civil Suit 83 of 2009
Decision
Plaint struck out; temporary injunction lifted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A company stated in the plaint to be incorporated in Uganda but which is not actually incorporated in Uganda does not legally exist as a Ugandan entity and cannot maintain an action. The misstatement as to place of incorporation and company name is a matter of substance not form. Such an error cannot be cured by amendment under Order 1 rule 10 because the plaintiff as pleaded is a non-existent legal person. The plaint must be struck out as bad in law.

Outcome

Plaint struck out; temporary injunction lifted

Facts

The respondent Uganda Gold Mines Limited filed Civil Suit 83 of 2009 against Kilembe Mines Limited. The applicant defendant moved to strike out the plaint on grounds that the plaintiff company was not registered and therefore incapable of suing. The plaint stated that Uganda Gold Mines Limited was a limited liability company incorporated in Uganda. Upon inquiry, the Uganda Registration Services Bureau confirmed that no such company was registered. The respondent argued this was a mere misnomer, producing incorporation documents showing the company was actually incorporated in the Province of British Columbia and Alberta, Canada under the name Uganda Gold Mining Limited (later renamed). The respondent stated it intended to register in Uganda under Part X of the Companies Act as a foreign company once litigation concluded. The underlying dispute involved a Mineral Exploration and Feasibility Study Agreement between the parties which had proceeded through arbitration and an arbitral award had been registered as a decree of the High Court.

Issues

  1. Whether a company not incorporated in Uganda can maintain an action in Ugandan courts.
  2. Whether the misstatement in the plaint as to the place of incorporation and name of the plaintiff company constitutes a curable misnomer or is a matter of substance requiring the plaint to be struck out.
  3. Whether amendments under Order 1 rule 10 of the Civil Procedure Rules can cure a situation where the plaintiff as described in the plaint does not exist.

Orders

  • Plaint in High Court Civil Suit 83 of 2009 struck out as being bad in law and disclosing no cause of action.
  • Temporary injunction granted in M.A. 125 of 2009 lifted.
  • All other interlocutory applications under the head suit to abide outcome of this ruling.
  • No order as to costs since the plaintiff is non-existent.

Rules and key headnotes

Civil Procedure — Parties to Suit — Legal Capacity — Non-existent Plaintiff
An unregistered company or a company that does not exist legally in Uganda cannot be recognized as having any legal existence and is incapable of maintaining an action in Ugandan courts. Once the court becomes aware that a plaintiff is non-existent, it cannot allow the action to proceed.
Civil Procedure — Amendment of Pleadings — Limits on Amendment — Non-existent Party
A suit in the names of a wrong plaintiff cannot be cured by amendment where the plaintiff as described does not exist in law. Amendments under Order 1 rule 10 of the Civil Procedure Rules can only be made if they are minor matters of form not affecting the substance of the identities of the parties to the suit.
Civil Procedure — Misnomer — Distinction from Non-existent Party
A misnomer occurs where a party is improperly or imperfectly named but no change of identity is involved. Where a plaintiff is described as a company incorporated in Uganda when it is actually a Canadian company, this is a matter of substance not mere form. A reasonable person would not mistake a Canadian company for a Ugandan company, and such a misstatement amounts to an embarrassment requiring the plaint to be struck out.
Company Law — Legal Capacity to Sue — Foreign Companies — Registration Requirements
Under section 15 of the Companies Act (Cap 110), a company must be incorporated or registered as a body corporate to have capacity to sue or be sued in Uganda. A foreign company that intends to register under Part X of the Companies Act but has not yet done so lacks legal capacity to sue in Uganda.
Civil Procedure — Striking Out — Effect on Related Orders
Where a plaint is struck out as being bad in law due to the non-existence of the plaintiff, any temporary injunction granted in connection with the suit becomes untenable and must be lifted.

Legislation cited (10)

Cases cited (8)

  • The Fort Hall Bakery Supply Co. v Fredrick Muigai Wangoe [1959] EA 474
  • Bangue Internationale De Commerce De Petrograd v Goukassow [1923] KB 682
  • The Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa (Miscellaneous Application No. 576 of 2006)
  • Uganda Freight Forwarders Association & Anor v Attorney General & Anor (Constitutional Petition No. 22 of 2009)
  • Davies v Elsby Brothers Ltd [1960] 3 All ER 672 (CA)
  • Reliable African Insurance Agencies v National Insurance Corporation [1979] HCB 59
  • Hedlund v Ford Marketing Corp 629 P. 2d 1012 (Ariz ct. App 1981)
  • The Thoubai District Farmers Association for Natural Calamities v The State of Manipur & 2 ors (Writ No. 978 of 2004)

Full judgment

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

Kilembe Mines Ltd v Uganda Gold Mines Ltd (HCT-00-CC-MA 312 of 2012) [2012] UGCommC 71 (27 June 2012)
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.