Wakilii

Kiwanuka v Centenary Rural Development Bank Limited and Others (Miscellaneous Application 232 of 2022)

High Court · [2023] UGHCCD 344 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application arising from civil suit seeking orders to add defendants and amend plaint
Decision
Application allowed. 2nd and 3rd Respondents joined as defendants and applicant granted leave to amend plaint.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court allowed the application. Held that affidavits in reply, being evidence rather than pleadings, should be filed within reasonable time before the hearing date and the late filing occasioned no substantial prejudice. The 2nd and 3rd Respondents, having purchased the mortgaged properties from the 1st Respondent, have interests that will be directly affected by any orders concerning those properties and must be joined as defendants. The proposed amendments including correcting the misnomer in the 1st Respondent's name and properly structuring particulars of fraud do not introduce a new cause of action and are necessary to determine the real questions in controversy.

Outcome

Application allowed. 2nd and 3rd Respondents joined as defendants and applicant granted leave to amend plaint.

Facts

The applicant, a self-represented litigant who filed Civil Suit No. 291 of 2018 from Luzira prison, sought to add the 2nd and 3rd Respondents as defendants and amend his plaint. The applicant had mortgaged properties to the 1st Respondent bank. Upon the applicant's default, the 1st Respondent exercised its right as mortgagee and sold the properties: one to the 2nd Respondent for UGX 90,000,000 and another to the 3rd Respondent for UGX 32,000,000. Both purchasers became registered proprietors. The applicant's original plaint contained errors including misspelling the 1st Respondent's name as 'Centenary Bank' instead of 'Centenary Rural Development Bank Ltd' and failing to properly structure particulars of fraud. The 1st Respondent had obtained leave to defend and filed a written statement of defence but never served it on the applicant.

Issues

  1. Whether the Respondents' affidavits in reply are properly before Court?
  2. Whether the 2nd and 3rd Respondents should be added as Defendants to Civil Suit No. 291 of 2018?
  3. Whether the Applicant should be granted leave to file an amended plaint?

Orders

  • The 2nd and 3rd Respondents shall be joined as defendants in Civil Suit No. 291 of 2018.
  • The Applicant is allowed to amend the plaint in Civil Suit No. 291 of 2018 in the terms and upon the matters highlighted in this application.
  • The amended plaint shall be served onto the defendants within 15 days from the date of this order together with fresh summons to file a defence.
  • The costs of this application shall abide the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Interlocutory Applications — Time Limits — Filing of Affidavits in Reply
In an interlocutory application to be determined on the basis of affidavits, where the rules do not provide specific timelines, an affidavit in reply, being evidence rather than a pleading in the strict sense, should be filed and served on the adverse party within reasonable time before the date fixed for hearing, sufficient to allow the adverse party a fair opportunity to respond.
Civil Procedure — Joinder of Parties — Necessary Parties — Test for Addition of Defendants
A person may be joined as a party to a suit where that person has a high interest in the case, or where the orders sought in the main suit would directly or legally affect the person sought to be added, or where it is desirable to avoid multiplicity of suits, or where the defendant could not effectually set up a desired defence unless that person was joined, or where the order that may be made in the suit would bind that person.
Land & Property — Mortgages — Sale by Mortgagee — Purchasers as Necessary Parties
Where a mortgagee has exercised its right to sell mortgaged properties upon default and sold those properties to third parties who became registered proprietors, those purchasers must be joined as defendants in any suit challenging the sale, as their interests will be directly legally affected by any orders the court may make concerning the properties.
Civil Procedure — Amendment of Pleadings — Correction of Misnomer — Trading Name
Where a party is sued under a name by which it commonly trades, even if that is not its full legal name, this constitutes a misnomer that may be rectified by way of amendment without occasioning any miscarriage of justice, particularly where there is no doubt in the mind of the defendant or any third party as to the identity of the party intended.
Civil Procedure — Amendment of Pleadings — Purpose and Principles — Determining Real Questions in Controversy
The court may at any stage allow amendment of pleadings where the facts sought to be introduced are sequential to material facts already before the court and are necessary for a fair and complete determination of the real issues in controversy between the parties, even where the original pleading failed to meet technical requirements such as proper particularization.

Legislation cited (8)

Cases cited (16)

  • Stop and See (U) Ltd v Tropical Africa Bank Ltd (Miscellaneous Application No. 333 of 2010)
  • Dr. Lam Lagoro v Muni University (Miscellaneous Cause No. 007 of 2016)
  • Samson Sempasa v P.K Sengendo (High Court Miscellaneous Application No. 577 of 2013)
  • Kololo Curing Co. Ltd v West Mengo Co-operative Union [1980] HCB 60
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd (Supreme Court Civil Appeal No. 9 of 1998)
  • Amon v Raphael Tuck & Sons Ltd (1956) 1 ALLER p. 273
  • Alley Route Ltd v Uganda Development Bank (High Court Miscellaneous Application No. 459 of 2007)
  • Lea Associates Limited v Bunga Hill House Ltd (High Court Civil Miscellaneous Application No. 348 of 2008)
  • Kampala Bottlers v Domanico (U) Ltd (Court of Appeal Civil Appeal No. 22 of 1992)
  • Lubega v Barclays Bank (1990-94) EA 294
  • Okello v UNEB (Court of Appeal No. 12 of 1987)
  • Iddi Ouma and Another v UNEB (High Court Civil Suit No. 159 of 2018)
  • Trustees of Rubaga Miracle Centre v Mulangira Simbwa (High Court Miscellaneous Application No. 576 of 2006)
  • Gaso Transport Services (Bus) Ltd v Obene (1990-1994) EA 88
  • Mulowooza & Brothers Ltd v Shah & Co. Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Nicholas Serunkuma Ssewagudde and 2 Others v Namasole Namusoke Namatovu Veronica (High Court Miscellaneous Application No. 1307 of 2016)

Full judgment

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Kiwanuka v Centenary Rural Development Bank Limited and Others (Miscellaneous Application 232 of 2022) [2023] UGHCCD 344 (7 November 2023)
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.