THE REPUBLIC OF UGANDA
IN THE HIGH COURT OF UGANDA AT KAMPALA
(COMMERCIAL DIVISION)
MISC. APPLICATION NO. 889 OF 2013
(ARISING OUT OF CIVIL SUIT NO. 503 OF 2013)
HAG SOLUTIONS LTD & 2 OTHERS::::::::::::::::::::::::::::::::::::::APPLICANTS
VERSUS
RIVIERA INTERNATIONAL LTD:::::::::::::::::::::::::::::::::::::::::RESPONDENT
BEFORE THE HON. JUSTICE HENRY PETER ADONYO
RULING
This application was filed on 10th October, 2013, it was on
signed and sealed by Court on 30th April, 2014 and fixed for
hearing on 14th May, 2014 which was the only available date
convenient to Court to entertain this matter.
The Applicant seeks leave to amend that Written Statement of
Defence and costs for the same. The application is brought
under Order 6 rule 19 and 31 of the Civil Procedure Rule
and Section 98 of the Civil Procedure Rule. It is also
supported by the affidavits of Henry Gashumba 2nd Applicant
and Alex Kabango 3rd Applicant and the grounds is briefly
that;
(a) The amendment is necessary for purposes of determining
the real questions in controversy between the parties
(b) The amendment isf allowed will not prejudice the
Respondent in any way but just let justice not only to be
done but be seen to prevail.
Order 6 rule 19 of the Civil Procedure Rule provides that
“The Court may at any stage of the proceeding allow either
party to alter or amend her pleadings in such manner and on
such terms as may be just and all such amendments shall be
made as may necessary for the purposes of determining the
real questions in controversy between the parties”.
The Applicant avers that the real controversy between the
parties here arises from the product supply agreement which
was signed on 14th January, 2013, particularly the letter dated
15th August, 2013 of which had not been availed to the
Advocate who prepared and filed the Written Statement of
Defence while the Defendnat had travelled to South Sudan to
obtain the necessary documents as per parargraphs 6,7,8,9,
and 10 of the affidavit in support deponed by Henry
Gashumba.
Section 33 of the Judicature Act provides that:
“The High Court shall in the exercise of the jurisdiction vested
in it by the constitution, this Act or any written Law granted
absolutely or on such terms and conditions as it thinks just all
such remedies as any of the parties to a cause or matter is
entitled to in repect of any legal or equitable claim properly
brought before it, so that in so far as possible all matters in
contoversy between the parties may be completely and finally
determined
and
all
multiplications
of
legal
proceedings
concerning any of thses matters avoided”
Section 98 of the Civil Procedure Act further provides that;
“Nothing in this Act shall be deemed to limit or otherwise affect
the inhernt power of the Court to make such orders as may be
necesaary for the ends of justice or prevent abuse of Court
process”.
It is trite Law that amendments will freely be allowed provided
they do not prejudice the adverse party e.g. by introducing a
new cause of action. In the instance case, the pleading sought
to be amended is a written statement of Defence. It certainly
cannot introduce a cuse of action but answers to the plaint.
The Applicant strongly submits that such an amendment if
allowed shall not in any way prejudice the Respondent but
simply answers the claim with the aim of determining the real
controversy between the parties as laid down in paragraphs 6,
7,8,9,10,11 and 12 of the supporting affidavit of HENRY
GASHUMBA, and in paragraphs 9, 10,11,12,13, 14 and 18 of
the draft amendment attached thereto and marked annexture
“B”
Article126 (2) (e) of the Constitution of Uganda enjoins this
Honourable Court in the adjudiction of cases to administer
substantive justice without undue regard to technicalities. It is
therfore our humble submision that any case is curable under
the foregoing provision of the law and it is the prayers of the
Applicant that the Applicant be granted leave to amend the
Written Statement of Defence.
The second order being sought from this Honourable Court is
that provision be made for the costs of this application section
27(1) of the Civil Procedure Act provides that; “Subject to such
conditions limitations as may be prescribed, and to the
provisions of any law for the time being in force, the costs of ans
incident to all suits shall be in the discretion of the court or
judge, and the court or judge shall have full power to determine
by whom and out of what property and to what extent those
costs are to be paid and to give all necessary directions for the
purposes aforesaid”
Thus was the position in the case M/S Pago (U) Ltd versus
Fort Portal Municipal Council Civil Appeal No. 28 of 2006
[2008] ULR 345.
It is trite Law that costs follows on the event and it is our
submission that in the event that this application is allowed
that an award for the costs be made to the Applicant.
Resolution of this Matter
Having considered the submission of the Applicant and the
Affidavit in support, this court finds that the Applicant has
made a case for the grant of the orders sought and it is the
view of this court that the orders sought would not prejudice
the interest of the Respondent such that the real issues in
controversy are tried inter parties. This court exercises its
discretion as stated above and grants the orders sought.
Orders
1. The Applicant is granted leave to amend the Written
Statement of defence within ten (10) days from today.
2. Costs of the Application to be in the cause
Henry Peter Adonyo
Judge
13th June 2014