Wakilii

Sabric International Limited v Attorney General (Civil Appeal 30 of 2020)

Supreme Court · [2023] UGSC 75 · 2023 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal to the Supreme Court from a Court of Appeal decision upholding the striking out of a plaint
Decision
Appeal allowed; majority judgment of the Court of Appeal set aside; plaint reinstated and amended; matter remitted to the High Court for determination on the merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Supreme Court allowed the appeal, holding that naming the plaintiff as 'Sabric Building and Decorating Contractors Limited' instead of the duly incorporated 'Sabric International Limited' was a mere misnomer, not the institution of a suit by a non-existent party. Applying the reasonable-reader test from Davies v Elsby Brothers, the Court found that the respondent dealt with and was paid by Sabric International Limited throughout, so a reasonable reader would understand the suit to mean that company. Such a misnomer is curable by amendment under Section 100 of the Civil Procedure Act, and Article 126(2)(e) requires substantive justice without undue regard to technicalities. The matter was remitted to the High Court.

Outcome

Appeal allowed; majority judgment of the Court of Appeal set aside; plaint reinstated and amended; matter remitted to the High Court for determination on the merits

Facts

The appellant, Sabric International Limited, a company incorporated in Uganda, carried out renovation works on Masaka Army Barracks under a contract with the Ministry of Defence. Throughout the contractual relationship the respondent dealt with, and made partial payment to, Sabric International Limited, though some of the company's communications used letterhead bearing the name 'Sabric Building and Decorating Contractors Limited' while being signed off for Sabric International Limited. When suing in the High Court (HCCS No. 173 of 2010) to recover the balance due, the plaint named the plaintiff as 'Sabric Building and Decorating Contractors Limited', an entity that does not legally exist. The respondent filed a defence and counterclaim, then raised an objection that the plaintiff was non-existent. The High Court struck out the plaint, and the Court of Appeal dismissed the appeal by majority, holding that a suit by a non-existent party is a nullity that cannot be cured by amendment.

Issues

  1. Whether the appellant's variation in name can be regarded as a mere misnomer.
  2. Whether the misnomer is a curable defect, or whether it affected the appellant's locus to initiate the suit in the trial court.

Orders

  • The plaint instituted by the appellant in the names of Sabric Building and Decorating Contractors Limited be reinstated and amended to reflect the correct entity, Sabric International Limited.
  • The matter be remitted to the High Court to be determined on the merits.
  • The costs of this appeal as well as those in the courts below be granted to the appellant.

Rules and key headnotes

Civil Procedure — Misnomer — Distinction between a misnamed existing party and a non-existent party
Where a duly incorporated and existing legal entity is erroneously described in a plaint by a name that does not exist, the defect is a mere misnomer rather than the institution of a suit by a non-existent party, and it can be cured by amendment under Section 100 of the Civil Procedure Act.
Civil Procedure — Misnomer — Reasonable-reader test
Whether a misdescription is a curable misnomer is determined not by the intention of the document's framer but by how a reasonable person receiving the document, reading it as a whole and in all the circumstances, would understand it; if such a reader would conclude it must refer to the existing party despite the wrong name, the defect is a mere misnomer.
Civil Procedure — Amendment — Section 100 Civil Procedure Act and Article 126(2)(e)
Section 100 of the Civil Procedure Act empowers a court at any time to amend any defect or error in a proceeding to determine the real question in issue, and Article 126(2)(e) of the Constitution requires courts to administer substantive justice without undue regard to technicalities such as a curable misnomer.
Civil Procedure — Estoppel — Doctrine of approbation and reprobation
A party who has taken the benefit of a contract, including defending the suit and lodging a counterclaim, cannot later rely on a misnomer in the claimant's name to deny payment for work done, as this would offend the doctrine that one cannot approbate and reprobate.

Legislation cited (4)

Cases cited (11)

  • A.N. Fhake v World Wide Agencies Ltd (trading as Traders) (1948) 15 EACA 1
  • Shamshetali Zaver Virji v F.L. Kadibhai & Others (Civil Appeal No. 81 of 2004)
  • Salt Works Limited & Another v Nimadi Osman (Civil Appeal No. 3 of 2002)
  • Fort Hall Bakery Supply Co. Ltd v Frederick Muigai Wangoe [1959] EA 474
  • Banque Internationale de Commerce de Petrograd v Goukassow [1923] 2 KB 582
  • Sheikh Senyonga & 7 Others v Sheikh Kakooza (Supreme Court Civil Appeal No. 9 of 1990)
  • Davies v Elsby Brothers Limited [1960] 3 All ER 672
  • Auburn Court Limited v Jamaica Citizens Bank Limited (Supreme Court Civil Appeal No. 69 of 1990)
  • Trustees of Rubaga Miracle Centre v Mulangira Ssimbwa (Miscellaneous Application No. 576 of 2006)
  • Uganda Freight Forwarders Association (Constitutional Petition No. 22 of 2009)
  • Kilembe Mines Limited v Uganda Gold Mines Limited (HCT Civil Suit No. 31.2 of 2012)

Full judgment

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

Sabric International Limited v Attorney General (Civil Appeal 30 of 2020) [2023] UGSC 75 (13 October 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.