Wakilii

Perfect Roses Farm Limited & Another v Bank of Africa (U) Limited (Miscellaneous Application 238 of 2021)

High Court · [2023] UGCOMMC 204 · 2023 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend plaint in existing civil suit challenging sale of security
Decision
Leave to amend plaint granted with specific exclusions; matter to proceed in main suit

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court granted the applicants leave to amend their plaint for a second time, allowing them to add new defendants (transferees of security, the bailiff, and the Commissioner Land Registration) and plead better particulars of fraud. The court held that amendments before hearing should be freely allowed if they can be made without injustice to the other side. All five preliminary objections raised by the respondent were dismissed.

Outcome

Leave to amend plaint granted with specific exclusions; matter to proceed in main suit

Facts

The 1st Applicant obtained credit facilities totalling UGX 460,000,000 from the Respondent bank, secured by four plots of land. The 1st Applicant defaulted and the Respondent sold the security. The Applicants filed the main suit (Civil Suit No. 355 of 2017) challenging the manner of sale. After the main suit was filed, the Respondent allegedly sold the security to third parties who became registered proprietors. The Applicants had previously obtained leave to amend the plaint once by consent (Miscellaneous Application No. 634 of 2018). They now sought a second amendment to add new defendants (the transferees, persons allegedly involved in fraud, the bailiff, and the Commissioner Land Registration) and to plead better particulars of fraud, illegality, and misrepresentation. The Applicants had changed advocates twice during the proceedings.

Issues

  1. Whether the applicants should be granted leave to amend their plaint for a second time.
  2. Whether the preliminary objections raised by the respondent should be sustained.
  3. Whether the proposed amendments would introduce substantially new causes of action.
  4. Whether new defendants could properly be joined to the main suit.

Orders

  • The Applicant shall file and serve its amended Plaint as proposed in the draft 2nd amended plaint, save for the addition of M/S ENS Africa, Robert Kayira, Magidu Kintu and Bukenya Elly as defendants, within 7 (seven) days from the date of this ruling.
  • The costs of this Application shall abide by the outcome of the main suit.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Principles — Liberal Approach Before Hearing
Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side, and courts have discretion to allow amendments necessary for determining the real questions in controversy between the parties.
Civil Procedure — Defective Affidavits — Curable Defects — Liberal Approach to Form
Courts should take a liberal approach to defective affidavits to ensure substantive justice is delivered without undue regard to technicalities. Curable defects in the form of an affidavit, as opposed to defects in substance, cannot vitiate its validity, and filing a subsequent affidavit before hearing can cure such defects.
Civil Procedure — Joinder of Parties — Addition of Defendants — Transferees of Disputed Property
Under Order 1 rule 3 of the Civil Procedure Rules, all persons against whom any right to relief in respect of the same act or transaction is alleged to exist may be joined as defendants, including transferees of security whose addition will help the court satisfy itself as to the propriety of the transfers.
Civil Procedure — Supplementary Affidavits — Leave Not Required Before Pleadings Closed
Under Order 8 rule 18(2) of the Civil Procedure Rules, leave to file subsequent proceedings is only required when pleadings are closed. A supplementary affidavit filed before pleadings are closed and before the opposing party files its affidavit in reply does not require leave of court.
Civil Procedure — Bailiffs — Statutory Protection Limited to Lawful Execution of Court Orders
Section 46(2) of the Judicature Act protects bailiffs from civil liability only while they lawfully execute court orders and warrants. The provision does not protect bailiffs hired to execute instructions from private entities, and such bailiffs may be joined as defendants in civil proceedings.

Legislation cited (10)

Cases cited (3)

  • Male H. Mabirizi K. Kiwanuka v Attorney General (Supreme Court Miscellaneous Application No. 7 of 2018)
  • Mulowooza Brothers Ltd v N. Shah & Co. Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Eastern Bakery v Castelino (1958) EA 461

Full judgment

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

Perfect Roses Farm Limited & Another v Bank of Africa (U) Limited (Miscellaneous Application 238 of 2021) [2023] UGCommC 204 (28 September 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.