Wakilii

Mukasa v Baife & Anor (CIVIL APPEAL NO. MM 40 1988.)

High Court · [1990] UGHCCD 1 · 1990 Preliminary Objection Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to amend Memorandum of Appeal under sections 101 and 102 of Civil Procedure Act and Order 48 r 3, opposed by preliminary objection
Decision
Preliminary objection dismissed; application to amend Memorandum of Appeal may proceed to be argued on its merits

Observed later treatment

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Holding

The court held that section 102 of the Civil Procedure Act should be interpreted broadly to include errors, omissions, and slips made by counsel in preparing a Memorandum of Appeal, not limited to errors in judgments or decrees made by courts. In the interest of justice, the court may invoke its inherent powers under section 101 to allow amendment of a Memorandum of Appeal to add an omitted party and additional grounds, even where procedural rules exist, provided those rules do not offer an alternative remedy and are not exclusive. The Civil Procedure Rules cannot override or preclude the inherent jurisdiction conferred by the parent Act.

Outcome

Preliminary objection dismissed; application to amend Memorandum of Appeal may proceed to be argued on its merits

Facts

The appellant brought a Notice of Motion under sections 101 and 102 of the Civil Procedure Act and Order 48 r.3 to amend the Memorandum of Appeal by adding the Trustees of Tororo Diocese as second respondent and adding two additional grounds of appeal. The Trustees of Tororo Diocese had been a party to the suit from inception and appeared in the lower court's decree, but counsel omitted them when preparing the Memorandum of Appeal. The first respondent raised a preliminary objection contending that the application was misconceived because sections 101 and 102 do not cover omissions by counsel in preparing appeal documents and that the application should have been brought under Order 39 r.2, which deals with arguing grounds not set out in the Memorandum of Appeal.

Issues

  1. Whether an application to amend a Memorandum of Appeal to add a party and additional grounds can be brought under sections 101 and 102 of the Civil Procedure Act.
  2. Whether section 102 applies to correct omissions made by counsel in preparing a Memorandum of Appeal or only to correct errors in judgments and decrees made by courts.
  3. Whether the inherent powers under section 101 can be invoked where a specific procedural rule (Order 39 r.2) exists.

Orders

  • Preliminary objection disallowed.
  • Costs to the appellant.

Rules and key headnotes

Civil Procedure — Amendment of Memorandum of Appeal — Section 102 of Civil Procedure Act — Whether applies to omissions by counsel
Section 102 of the Civil Procedure Act, which permits correction of clerical or arithmetical mistakes in judgments, decrees, or orders, or errors arising from accidental slip or omission, should be interpreted to include errors, mistakes, accidental slips, and omissions committed by counsel in drawing out decrees, orders, or preparing a Memorandum of Appeal, in the interest of justice.
Civil Procedure — Inherent Powers — Section 101 of Civil Procedure Act — Relationship with Civil Procedure Rules
The inherent powers of the court under section 101 of the Civil Procedure Act may be invoked to prevent injustice even where Civil Procedure Rules exist, provided the Rules do not offer an alternative remedy and do not purport to be exclusive. The Civil Procedure Rules cannot override or preclude the inherent jurisdiction conferred by the parent Act.
Civil Procedure — Amendment of Memorandum of Appeal — Adding a party omitted through oversight
Where a party was a party to the suit from inception and appears in the lower court's decree, but was omitted from the Memorandum of Appeal through counsel's oversight, the court may permit amendment to add that party as a respondent in the interest of justice, particularly where the appeal, if allowed, may bind that party.
Civil Procedure — Order 39 r.2 — Scope — Amendment of Memorandum of Appeal to add grounds
Order 39 r.2 of the Civil Procedure Rules, which provides that an appellant shall not argue grounds not set forth in the Memorandum of Appeal except by leave, does not cover a situation where an appellant seeks to entirely amend the Memorandum of Appeal to add grounds before the appeal is argued. An application for such amendment may be brought under section 101 of the Civil Procedure Act.

Legislation cited (6)

Cases cited (4)

  • Vallabhdas Karsandas v Marisuklal & others [1965] EA 700
  • Re Nakivubo Chemist [1979] HCB 12
  • Kasule v Kasujja [1979] HCB 99
  • Mukisa Biscuit Co. Ltd. v West End Distributors Ltd. [1969] EA 696

Full judgment

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Mukasa v Baife & Anor (CIVIL APPEAL NO. MM 40_1988.) [1990] UGHCCD 1 (8 May 1990)
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.