Wakilii

Namusisi v Kikaawa (Misc. Application No 1595 of 2018)

High Court · [2019] UGHCLD 16 · 2019 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend written statement of defence and counterclaim arising from civil suit
Decision
Application granted with costs to the respondent; applicant permitted to amend written statement of defence and counterclaim

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court granted leave to amend the counterclaim despite inferring bad faith from the seven-year delay, holding that the amendment was necessary to enable the court to determine the real dispute between the parties. While the application was found to be an afterthought, the amendment would not introduce a new cause of action, would avoid multiplicity of suits, and any prejudice to the respondent could be compensated by costs. Costs were awarded to the respondent.

Outcome

Application granted with costs to the respondent; applicant permitted to amend written statement of defence and counterclaim

Facts

The applicant, who was the 2nd defendant in the underlying land suit filed in 2011, sought leave to amend her written statement of defence and counterclaim. The applicant alleged that her previous counsel mistakenly represented in paragraph 3(a) of the counterclaim that she had sold two acres of land to the respondent, when her true position as stated in the written statement of defence was different regarding the land description and registration. The counterclaim was filed on 3 August 2011 and the reply on 18 August 2011. The respondent opposed the amendment on grounds that the applicant had admitted selling two acres on multiple occasions, that the application was an afterthought after seven years, and that amendment would prejudice his case. A similar application had been filed in 2012 but withdrawn by consent. The instant application was brought after the main suit was fixed for hearing.

Issues

  1. Whether the applicant should be granted leave to amend her written statement of defence and counterclaim.
  2. Whether the intended amendment would cause prejudice to the respondent.
  3. Whether the application was brought in bad faith.

Orders

  • Application granted.
  • Costs of the application awarded to the respondent.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Principles Governing Grant of Leave
Amendments of pleadings should be allowed at any stage of proceedings where the court is satisfied that the amendment will enable the real question in controversy between the parties to be adjudicated upon and no injustice would be occasioned to the opposite party.
Civil Procedure — Amendment of Pleadings — Tests to be Applied
In considering an application to amend pleadings, the court must consider whether: (1) the amendment would work injustice to the other side that cannot be compensated by costs; (2) the amendment would avoid multiplicity of proceedings; (3) the application is made in good faith; and (4) the amendment is prohibited by law, such as where it introduces a new cause of action or is barred by limitation.
Civil Procedure — Amendment of Pleadings — Bad Faith and Delay
Bad faith in applications to amend pleadings is usually inferred from late applications. Where a party waits seven years after filing pleadings and only applies to amend after the suit is fixed for hearing, and where a similar application had been made and withdrawn years earlier, the court may infer bad faith or conclude the application is an afterthought.
Civil Procedure — Amendment of Pleadings — Grant Despite Bad Faith
Even where bad faith is inferred in the presentation of an application to amend pleadings, the court may nevertheless grant the amendment if it is necessary to enable the court to determine the real dispute between the parties, subject to awarding costs to the opposite party to compensate for prejudice.
Civil Procedure — Amendment of Pleadings — Prejudice and Compensation by Costs
Where an amendment to a counterclaim would require the other party to amend their reply to the counterclaim, this constitutes a prejudice, but such prejudice can be compensated by an award of costs.

Legislation cited (4)

Cases cited (6)

  • Gaso Transport Services (Bus) Ltd v Obene [1990-1994] EA 88
  • Sarope Petroleum Ltd v Orient Bank Ltd & 2 Others (Misc. Application No. 72 of 2011)
  • Lubowa Gyaviira & Others v Makerere University (HCMA No. 471 of 2009)
  • Mulowooza & Brothers v N. Shah Ltd (SCCA No. 26 of 2010)
  • Edward Kabugo Sentongo v Bank of Baroda (HCT 00-CC-MA No. 0203 of 2007)
  • Coffee Marketing Board Ltd v Fred Kizito (1992-93) HCB 175

Full judgment

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

Namusisi_v_Kikaawa_(Misc._Application_No_1595_of_2018)_[2019]_UGHCLD_16_(4_March_2019)
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.