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Zurah & Another v Frizola & Others (Miscellaneous Application 373 of 2017)

High Court · [2019] UGHC 83 · 2019 Application Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Interlocutory application for leave to amend plaint in pending civil suit founded on fraud and illegalities, brought under section 38 of the Judicature Act, section 98 of the Civil Procedure Act, Order 1 Rule 13, Order 6 Rules 19 and 31 of the Civil Procedure Rules
Decision
Application dismissed with costs to the respondents

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The court dismissed the application for leave to amend the plaint. The affidavit in support was struck out as defective because the first applicant lacked written authority from the second applicant to swear on her behalf. The respondent's affidavit in reply was also struck out for being filed four months late without leave. The proposed amendment was found to be an attempt to defeat the respondents' defence of limitation by changing the date when fraud was discovered from 2000 to 2012. The application to add Jagdish Parsotam Jadavwere as a fourth defendant failed because no cause of action against him was established.

Outcome

Application dismissed with costs to the respondents

Facts

The applicants filed Civil Suit No. 14 of 2015 against the respondents claiming fraud and illegalities in the acquisition of property LRV 352 Folio 1, Plot 11 Ormsby Avenue, Mbale. The suit alleged that upon the death of the late Trikam Mulji Ladwa in 2000, the first respondent claimed ownership of the suit property and demanded rent. The applicants sought leave to amend the plaint to include additional facts and add Jagdish Parsotam Jadavwere as a fourth defendant. They claimed their new advocates at M/S Okurut & Co. Advocates discovered omissions after studying the file. The respondents opposed, arguing the amendment was filed late after the suit was set down for hearing, lacked proper authority from the second applicant, sought to defeat their limitation defence by changing the date of discovery of fraud from 2000 to 2012, and failed to establish a cause of action against the proposed fourth defendant.

Issues

  1. Whether the first respondent's affidavit in reply was filed out of time
  2. Whether the affidavit in support of the application is defective for lack of written authority from the second applicant
  3. Whether the application for amendment offends the principles of amendment of pleadings by attempting to defeat the defence of limitation
  4. Whether Jagdish Parsotam Jadavwere can be added as a party to the suit
  5. Whether there was a change of advocates warranting the belated amendment application

Orders

  • The first respondent's affidavit in reply filed on 10 May 2018 is struck out for being filed out of time without leave of court.
  • The first applicant's affidavit in support of the application is struck off the record for being fundamentally defective in contravention of Order 1 Rule 12 of the Civil Procedure Rules.
  • The application for leave to amend the plaint is dismissed.
  • Costs of the application are awarded to the respondents.

Rules and key headnotes

Affidavits — Time Limits for Filing Replies in Interlocutory Applications
Order 12 Rule 3(2) of the Civil Procedure Rules requires that a reply to an interlocutory application must be filed within fifteen days from the date of service of the application. An affidavit in reply filed out of time without leave of court is liable to be struck out.
Affidavits — Authority to Swear on Behalf of Co-party
Where there are multiple plaintiffs or applicants, Order 1 Rule 12 of the Civil Procedure Rules requires that any authority for one party to appear, plead or act for another must be in writing, signed by the party giving it, and filed in the case. An affidavit sworn on behalf of a co-party without such written authority is fundamentally defective and must be struck off the record.
Interlocutory Applications — Effect of Striking Out Supporting Affidavit
Where an application raises questions of fact that require proof by affidavit evidence, the application cannot stand once the supporting affidavit is struck out. The determinative question is whether the application raises a question of law that does not require affidavit evidence or a question of fact which must be supported by affidavit evidence.
Amendment of Pleadings — Prohibition Where Amendment Defeats Limitation Defence
A court will refuse an amendment of pleadings where it is expressly or impliedly prohibited by law, including the law on limitation. An amendment that changes the date when fraud was discovered solely to bring the claim within the limitation period amounts to an attempt to defeat the defence of limitation and will occasion a miscarriage of justice to the respondent.
Joinder of Parties — Test for Adding a Party to Existing Suit
Before a person can be joined as a party under Order 1 Rule 10(2) of the Civil Procedure Rules, it must be established that the party has a direct interest in the case and that the orders sought would directly and legally affect that person. The applicant must clearly demonstrate a cause of action against the proposed party.

Legislation cited (11)

Cases cited (11)

  • Senkubuge Denis and 2 Others v Hajjati Madina Nassali and Another (Miscellaneous Application No. 1124 of 2014)
  • Great Lakes Ports Ltd v Tom Mugenga (Miscellaneous Application No. 374 of 2012)
  • SOT Enterprises Limited v Agatha Rukeribuga Doii (Miscellaneous Application No. 157 of 2016)
  • Lena Nakalema and 3 Others v Mucunguzi Myers (Miscellaneous Application No. 460 of 2013)
  • Gaso Transport Services Ltd v Martin Adala Obene (Supreme Court Civil Appeal No. 4 of 1994)
  • Kasirye Byaruhanga & Co. Advocates v Uganda Development Bank (Supreme Court Civil Appeal No. 2 of 1997)
  • Uganda Health Marketing Group v Katinvuma Broadcasting and General Ltd t/a Signal FM (Miscellaneous Application No. 270 of 2012)
  • Mohammad B. Kasasa v Jasphar Buyonga Sirasi (Court of Appeal Civil Appeal No. 42 of 2008)
  • Departed Asians Property Custodian Board v Jaffer Brothers Ltd [1999] 1 EA 55
  • Gokaldas Laximidas Tanna v Store Rose Muyinza (Civil Suit No. 7076 of 1987)
  • Stop & See (U) Ltd v Tropical Africa Bank Ltd (Miscellaneous Application No. 333 of 2010)

Full judgment

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Zurah & Another v Frizola & Others (Miscellaneous Application 373 of 2017) [2019] UGHC 83 (8 May 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.