Wakilii

Ndawula v Afroque Technical Services Ltd (Miscellaneous Application No. 1043 of 2014)

High Court · [2016] UGCOMMC 20 · 2016 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for leave to amend written statement of defence and counter claim in pending civil suit
Decision
Application granted with directions for filing and service of amended pleadings

Observed later treatment

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Holding

The High Court allowed the application to amend the written statement of defence and counter claim. The court held that amendments should be permitted where they enable the determination of the real questions in controversy and do not cause injustice to the other party. The court found that the applicant's omission of material facts by former counsel should not prejudice the client, and the respondent would have an opportunity to respond to the amended pleadings. Failure to underline proposed amendments, while undesirable, could not deny the applicant's constitutional right to be heard.

Outcome

Application granted with directions for filing and service of amended pleadings

Facts

The applicant had been subcontracted by the respondent to construct a section of Nalulungo-Lwabyata road in Nakasongola District. A dispute arose out of an alleged breach of contract. The applicant filed a written statement of defence and counter claim in the underlying civil suit but claimed that his former advocates omitted material facts, specifically that he had completed all the work rather than 90% as originally pleaded. The applicant sought leave to amend the pleadings before trial to include these facts. The respondent opposed the application, arguing that the proposed amendments constituted an overhaul of the original defence, demonstrated dishonesty, and would prejudice the plaintiff's case.

Issues

  1. Whether the proposed amendments to the written statement of defence and counter claim should be allowed.

Orders

  • The applicant is granted leave to amend the written statement of defence and counter claim within 1 week from the date of this ruling and serve it on the Respondent within 1 week from the date of filing.
  • The Respondent shall file a reply to the defence and counter claim within 15 days from the date of being served with the amended defence and counter claim.
  • Costs of the Application shall abide the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Amendments to Pleadings — Principles Governing Exercise of Discretion
Under Order 6 rule 19 of the Civil Procedure Rules, the court is empowered to allow amendments at any stage of proceedings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for determining the real question in controversy between the parties. In exercising discretion to allow amendments, the court considers whether the amendment would cause injustice to the other side that cannot be compensated by costs, whether it would avoid multiplicity of proceedings, whether the application is made malafide, whether the amendment is prohibited by law, and the timing and purpose of the amendment.
Civil Procedure — Amendments to Pleadings — Omissions by Counsel
Mistakes or omissions of counsel should not be visited upon the client, and a party cannot be denied relief merely because of some mistake, negligence, inadvertence or even infraction which occurred not out of the client's will. Where a party seeks to include information that was omitted by former advocates, the amendment should be allowed if it enables the court to determine the real issues in controversy and does not cause irreparable prejudice to the opposing party.
Civil Procedure — Amendments to Pleadings — Failure to Underline Proposed Changes
While failure to underline proposed amendments or strike out deletions is poor practice that can mislead the court, it cannot be relied upon to deny a party the constitutional right to be heard under Article 28(1) of the Constitution. To do so would amount to administering justice with undue regard to technicalities, contrary to Article 126(2)(e) of the Constitution. Where the court can ascertain the nature of the proposed amendments by comparing the original and proposed pleadings, and no injustice results, the failure to underline changes is not fatal to the application.

Legislation cited (5)

Cases cited (9)

  • Motorcare (U) Ltd v Attorney General (High Court Civil Suit No. 638 of 2005)
  • Gaso Transport Services Ltd v Martin Adale Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Lea Association Ltd v Bunga Hill House Ltd (High Court Miscellaneous Application No. 348 of 2008)
  • Laitu Advani Vs AAR Hegit Services Ltd
  • Kentteman v Hansel Properties Ltd [1987] AC 189
  • Henderson v Henderson [1843] 3 Hare 100
  • Plessey (PTY) Ltd v Mutoni Construction Ltd (Miscellaneous Application No. 178 of 2011)
  • Dhanji Ramji v Malde Timber Company [1970] EA 422
  • Ngege Ltd v David Wamala (Court of Appeal Civil Appeal No. 30 of 2005)

Full judgment

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Ndawula v Afroque Technical Services Ltd (Miscellaneous Application No. 1043 of 2014) [2016] UGCommC 20 (7 March 2016)
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.