Wakilii

Owor Kamu &26 Ors v Hajati Namulondo & Anor (Miscellaneous Application No. 0194 of 2019)

High Court · [2019] UGHCLD 328 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend written statement of defence and file a counterclaim in ongoing civil suit
Decision
Application for leave to amend written statement of defence dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that the application for leave to amend the written statement of defence was dismissed on procedural and substantive grounds. The applicants used notice of motion instead of the mandatory summons in chambers procedure under Order 6 rules 18, 19 and 22 of the Civil Procedure Rules. On substance, the proposed amendment sought to introduce new facts grounded in fraud and illegalities which were available when the original defence was filed, would substantially change the cause of action by introducing a counterclaim, and would prejudice the respondents who had already proceeded to submissions ex-parte.

Outcome

Application for leave to amend written statement of defence dismissed with costs to the respondents

Facts

The applicants (27 defendants in Civil Suit No. 772 of 2016) sought leave to amend their written statement of defence to plead fraud and illegalities concerning the respondents' ownership and registration of land, and to file a counterclaim. The applicants claimed this information had not been pleaded in their original defence filed on 1 December 2016. The respondents opposed, stating all information was available to the applicants when they filed their original defence, that no proposed amended defence was attached, and that the application was an afterthought intended to prejudice them. The suit had proceeded ex-parte to the stage of submissions over a two-year period due to the applicants' laxity in defending.

Issues

  1. Whether the application for leave to amend the written statement of defence should be granted.
  2. Whether the applicants followed the correct procedure in bringing the application by notice of motion instead of summons in chambers.
  3. Whether the proposed amendment would substantially change the cause of action and prejudice the respondents.

Orders

  • Application dismissed with costs to the Respondents.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Procedure — Mandatory Use of Summons in Chambers
Applications for amendment of pleadings under Order 6 rules 18, 19 and 22 of the Civil Procedure Rules must be brought by summons in chambers, not by notice of motion under Order 52, and failure to follow the correct procedure is fatal to the application.
Civil Procedure — Amendment of Pleadings — Principles for Grant — Change of Cause of Action
An amendment to pleadings will not be allowed where it will substantially change the cause of action into a different one, deprive a party of an accrued right, or where it is made mala fide.
Civil Procedure — Amendment of Pleadings — Counterclaim — Effect on Original Suit
A counterclaim is a completely new suit which introduces new parameters and substantially changes the anticipated cause of action between parties, and allowing such amendment would prejudice a party who has already prepared for trial on the basis of the original pleadings.

Legislation cited (7)

Cases cited (6)

  • Matico Store Ltd & Ors v James Mbabazi & Ors (1993 HCB 31)
  • Francis Wazarahi Bwengye versus Hak Wabonera
  • Mutesasira Noah & Ors v Nakalema Jane Kayondo (HCM No. 0256 of 2016)
  • Opoka Odwong v Gulu Local Government (High Court Miscellaneous Appeal No. 014 of 1996)
  • Gaso Transport Services (Bus) Ltd v Martin Adala Obene (Supreme Court Civil Appeal No. 4 of 1996)
  • Edward Kabugo Sentongo v Bank of Baroda (HCMA No. 203 of 2007)

Full judgment

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

Owor_Kamu_&26_Ors_Vs_Hajati_Namulondo_&_Anor_(Miscellaneous_Application_No._0194_of_2019)_[2019]_UGHCLD_328_(14_June_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.