Wakilii

Ssenkubuge & 2 Ors v Nassali & Anor (Miscellaneous Application No. 1124 of 2015) 2017 UGHCLD 7 (2017-01-31)

High Court · [2017] UGHCLD 7 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for amendment of pleadings arising from civil suit for land recovery
Decision
Application granted; applicants permitted to amend pleadings and add new defendants

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The High Court Land Division held that an application to amend pleadings to add defendants and particularize fraud allegations should be granted where the amendments do not change the fundamental cause of action, no mala fides is shown, proceedings have not advanced far, and any prejudice can be compensated in costs. Underlining proposed amendments is good practice but not mandatory, and substantive justice prevails over technicalities.

Outcome

Application granted; applicants permitted to amend pleadings and add new defendants

Facts

The applicants filed a civil suit seeking recovery of land formerly comprised in Kibuga Block 10, Plot 88, which had been subdivided. Without the applicants' knowledge, the suit land was transferred into the names of the first respondent, who subsequently sold parts of it to third parties including Joseph Kiyimba. Kiyimba was registered as proprietor of part of the suit land and occupied it. The applicants sought to amend their pleaints to add Kiyimba and his advocate Geoffrey Nangumya as defendants, and to plead new facts particularizing fraud and illegalities with orders for cancellation of Kiyimba's name from the title. The respondents opposed, arguing the amendments introduced new facts that fundamentally changed the claim and subject matter.

Issues

  1. Whether the application meets the criteria for the amendment of pleadings.
  2. What remedies are available to the parties?

Orders

  • Application allowed in the terms sought.
  • The Applicants are permitted to amend the plaint.
  • Joseph Kiyimba to be added as the 3rd defendant.
  • Geoffrey Nangumya to be added as the 4th defendant.
  • Costs of this application are in the cause.

Rules and key headnotes

Civil Procedure — Amendment of Pleadings — Test for Grant of Leave
Under Order 6 rule 19 of the Civil Procedure Rules, the court has wide discretion to allow amendment of pleadings at any stage of proceedings on such terms as may be just, and such amendments shall be made as may be necessary for the purpose of determining the real question in controversy between the parties and to avoid multiplicity of proceedings.
Civil Procedure — Amendment of Pleadings — Guiding Principles
An amendment to pleadings should be granted where: (a) it does not occasion injustice to the opposite party; (b) it is in the interest of justice and to avoid multiplicity of suits; (c) it is made in good faith; and (d) it is not expressly or impliedly prohibited by law.
Civil Procedure — Amendment of Pleadings — Prejudice Compensable in Costs
Prejudice to the opposite party occasioned by an amendment is not considered as occasioning injustice if it is of such a nature that it can be atoned for with costs, and the onus of proving that the prejudice cannot be so atoned lies on the party seeking to block the amendment.
Civil Procedure — Amendment of Pleadings — Addition of Parties and Particularization of Fraud
An amendment seeking to add parties and plead additional facts particularizing an existing cause of action in fraud does not constitute a substitution of one distinct cause of action for another and should be allowed, as the law does not prohibit an amendment that adds parties and pleads additional facts giving rise to the same cause of action in the same pleadings.
Civil Procedure — Amendment of Pleadings — Underlining Not Mandatory
Underlining of proposed amendments in pleadings is good practice but is by no means a law whose non-observance renders the pleadings fatal; such technicality must be read in the context of Article 126(2)(e) of the Constitution and the quest for substantive justice prevails over placing undue regard to technicalities.

Legislation cited (5)

Cases cited (9)

  • Gaso Transporter Services Ltd v Martin Adala Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Mulowoza & Brothers Ltd v N. Shah & Co. Ltd (Supreme Court Civil Appeal No. 26 of 2010)
  • Eastern Bakery vs. Castelino [1958] EA 461
  • Abdu Karim Khan vs. Muhammed Roshan [1965] EA 289
  • General Manager E.A R & H vs. Theirstein [1968] EA 354
  • Mohan Musisi Kiwanuka v Asha Claud (Supreme Court Civil Appeal No. 14 of 2002)
  • Wamanyi vs. Interfreight Forwarders (U) Ltd [1990] II KALR 67
  • Copper vs. Smith [1884] 26 CHD 700
  • JAS Progressive Investments (U) Ltd v Tropical Africa Bank Ltd (High Court Civil Suit No. 78 of 2011)

Full judgment

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

Ssenkubuge & 2 Ors v Nassali & Anor (Miscellaneous Application No. 1124 of 2015) 2017 UGHCLD 7 (2017-01-31)
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.