Wakilii

Royal Institute Njeru Limited v Post Bank Uganda Limited (Miscellaneous Application 1035 of 2023)

High Court · [2024] UGCOMMC 63 · 2024 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for leave to amend defence in Civil Suit No. 506 of 2022
Decision
Application allowed with costs to the Respondent. Applicant granted leave to amend defence with strict timelines for compliance.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that leave to amend a defence will be granted where the amendment does not constitute a departure from the original pleadings, adds detail to grounds of defence, assists comprehensive adjudication, and any prejudice to the opposite party can be cured by an award of costs. The proposed amendment was allowed despite allegations of falsehood, as pleadings are averments to be proved at trial, not evidence to be assessed at the interlocutory stage. The application succeeded but costs were awarded to the Respondent as the litigation arose from the Applicant's former lawyers' omissions rather than the Respondent's conduct.

Outcome

Application allowed with costs to the Respondent. Applicant granted leave to amend defence with strict timelines for compliance.

Facts

The Respondent/Plaintiff brought Civil Suit No. 506 of 2022 against the Applicant/Defendant for specific performance of a contract of sale relating to a property, claiming the Applicant breached by not completing payment of UGX 143,000,000/= and remained in possession. The Applicant brought this interlocutory application seeking leave to amend its defence, alleging that its former lawyers (M/S Ayebare Makorogo & Co. Advocates) had omitted material facts, mistakenly admitted that the Applicant made a bid to purchase the property when it had not, and failed to address how the Applicant came to occupy the property and controversies over ownership and a loan. The Applicant claimed it gained possession from James Baguma, the registered proprietor, and was unaware of any mortgage until threatened with eviction. The Respondent opposed, alleging the application was made in bad faith to delay trial and that the proposed amendments contained deliberate falsehoods contradicting earlier affidavits filed by the Applicant in prior proceedings.

Issues

  1. Whether leave should be granted to the Applicant to amend its defence in Civil Suit No. 506 of 2022.
  2. Whether the proposed amendment constitutes a departure from the original pleadings.
  3. Whether the proposed amendment is aimed at defeating the Respondent's claim.
  4. Whether the proposed amendment would cause prejudice to the Respondent that cannot be remedied by costs.

Orders

  • Leave granted to the Applicant to amend its defence by filing the draft amended defence annexed to its affidavit in support.
  • Applicant to file and serve its amended defence within ten (10) days from the date of this ruling.
  • Respondent may file an amended reply to the written statement of defence within ten (10) days from service of the amended defence.
  • Parties to observe necessary pre-trial processes with a view to having the suit heard and determined.
  • Costs of this application awarded to the Respondent.

Rules and key headnotes

Amendment of Pleadings — Principles for Grant of Leave
Under Order 6 rule 19 of the Civil Procedure Rules, the court may at any stage of proceedings allow a party to amend pleadings in such manner and on such terms as may be just, and amendments shall be made as necessary for determining the real questions in controversy between the parties. Leave should be freely granted before trial if it can be made without injustice to the other side and any injustice can be compensated by costs.
Amendment of Pleadings — Departure from Original Pleadings
Where a party alleges that a proposed amendment constitutes a departure from original pleadings, that party bears the burden of showing how and where such departure occurred. It is not sufficient to make unsubstantiated allegations and expect the court to speculate or separate the hay from the chaff. Courts base decisions on evidence, not assumptions or innuendos. Additional averments that clarify a party's position and provide detailed defence do not constitute a departure if the thread of the case remains consistent.
Amendment of Pleadings — Introduction of New Grounds of Defence
The introduction of a new ground of defence through amendment may be allowed for as long as it does not substantially change the character of the suit. An amendment that adds detail to grounds of defence and assists in identifying all issues between parties to enable comprehensive adjudication and determination will generally be permitted.
Amendment of Pleadings — Allegations of Falsehood Distinguished from Variance in Pleadings
Pleadings are averments which must be proved through evidence at trial, not evidence in themselves. Where a proposed amendment is alleged to contain falsehoods because it contradicts affidavits filed in earlier proceedings, the court has no precedent to reject the proposed amendment on that basis at the interlocutory stage. The truthfulness of averments should be dealt with at trial during presentation of evidence rather than determined pre-emptively without evidence. This principle distinguishes falsehoods in affidavits (which are evidence subject to immediate assessment) from averments in pleadings (which await proof at trial).
Amendment of Pleadings — Prejudice and Remedies
Where an amendment of pleadings causes prejudice to the opposing party and such prejudice is curable by an award of costs, the court may allow the amendment. The court may impose shorter compliance deadlines for effecting the amendment to ensure that the trial is delayed as little as possible. Prejudice alone is not a bar to amendment if it can be adequately compensated.
Costs — Successful Party Not Guilty of Misconduct
Costs ordinarily follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. However, where the successful party has been guilty of misconduct, costs may not be awarded to them. Where litigation is necessitated by the actions of a successful party's former lawyers rather than any fault of the opposing party, costs may be awarded to the opposing party even where the application succeeds, as they have been dragged into litigation through no fault of their own.

Legislation cited (3)

Cases cited (13)

  • Molowoza Brothers Ltd v N. Shah & Co. Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Gaso Transport Services (Bus) Ltd v Obene (1990-1994) EA 88
  • Eastern Bakery v Castelinov (1958) EA 451
  • Night Nagujja v Namuwonge Agnes & Ors (High Court Miscellaneous Application No. 1878 of 2021)
  • Oscar Ssemawere v African Express Airways (High Court Miscellaneous Application No. 259 of 2023)
  • Byaruhanga Mahmood v Top Finance Bank (High Court Miscellaneous Application No. 250 of 2023)
  • Plessly (Pty) Ltd v Mutoni Construction Limited (High Court Miscellaneous Application No. 178 of 2021)
  • DFCU Bank v Meera Investments Limited (High Court Miscellaneous Application No. 1087 of 2022)
  • Sibamanyo Estates Limited v Equity Bank Uganda Limited & Ors (High Court Miscellaneous Application No. 414 of 2022)
  • Francis Rutuku & Ors v Eliphas Ndamagye (Court of Appeal Civil Appeal No. 111 of 2017)
  • Mugume v Akankwasa (High Court Miscellaneous Application No. 4 of 2008)
  • Harry Ssempa v Kambagambire David (High Court Civil Suit No. 408 of 2014)
  • Iyamuleme David v Attorney General (Supreme Court Civil Appeal No. 4 of 2013)

Full judgment

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Royal Institute Njeru Limited v Post Bank Uganda Limited (Miscellaneous Application 1035 of 2023) [2024] UGCommC 63 (28 March 2024)
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.