Kate Trading & Supplies Limited v Emadu & 4 Others (Miscellaneous Application 165 of 2024) [2024] UGCommC 190 (21 June 2024)

Full Case Text

## THE REPUBLIC OF UGANDA

# IN THE HIGH COURT OF UGANDA AT KAMPALA

### [COMMERCIAL DIVISION]

**MISCELLANEOUS APPLICATION NO. 0165 OF 2024**

# ARISING FROM CIVIL SUIT NO. 568 OF 2023

KATE TRADING AND SUPPLIES LTD===========APPLICANT

#### **VERSUS**

| 1. EMADU FELIX | | | |----------------------------------------------------|--|--| | 2. ABONGIRE MICHAEL | | | | 3. OMARA ANDY | | | | 4. ELAMIFY LTD | | | | 5. GOLDMINE FINANCE LTD $ ========= ==RESPONDENTS$ | | | | Before Hon. Lady Justice Patricia Kahigi Asiimwe | | |

## **Ruling**

#### Introduction

- The Applicant brought this Application seeking orders that the $1.$ Applicant be granted leave to amend her Plaint in Civil Suit No.0568 of 2023 and add Aggrey Kanyomozi as the 6th Defendant to the suit and costs of the application be provided for. - The grounds of the Application stated in the Affidavit deponed $2.$ by Acan Christine, Applicant's Director are: - That the Applicant is the lawful owner and was the $\overline{a}$ registered proprietor of motor vehicle Toyota Hilux Registration No UBK 635J which was fraudulently mortgaged and transferred to the 2nd, 4th and 5th Respondents.

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- That the Applicant sued the Respondents for illegal $b)$ and fraudulent mortgaging and selling of the said vehicle. - That at time of filing suit, the said motor vehicle was $c)$ registered in the names of the 5th Respondent. - That new facts have surfaced showing that the 5th $d$ Respondent transferred ownership of the said motor vehicle into names of Aggrey Kanyomozi. - That it is imperative that Aggrey Kanyomozi being the $e)$ current registered proprietor of the vehicle be added to the suit to avoid a multiplicity of suits. - The 5th Respondent opposed the application through an 3. Affidavit in Reply deponed by Alex Kisolo Herbert, Legal Manager of the 5th Respondent. He stated as follows: - That he was advised by his advocates $M/S$ Walusimbi $a)$ & Co Advocates that Civil Suit No.0568 of 2023 is non-existent and the application is procedurally and materially defective. - That the pleadings in Civil Suit No. 0568 of 2023 have $\mathbf{b}$ been closed and the said amendment will prejudice the 5th Respondent since it introduces a new of cause of action. - That the 5th Respondent got to know about the suit in $c)$ July 2023 and yet it had transferred the vehicle in June 2023. - That the Applicant is guilty of inordinate delay. $d$

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- 4. In Rejoinder, the Applicant through an Affidavit deponed by Acan Christine stated as follows: - a) That Civil Suit No. 568 of 2023 does exist and the amendment to a suit can be made at any time before judgement is given. - b) That there was no inordinate delay because as soon as the Applicant found out about transfer of vehicle, she immediately instructed her lawyers to file an application to amend pleadings.

#### Representation

The Applicant was represented by M/S F. Aogon & Company Advocates and the Sth Respondent was represented by M/S Walusimbi & Co Advocates. The other parties did not make an appearance despite being served. 5

#### Resolution

- The 5th Respondent raised a preliminary objection that the main suit is nonexistent. Counsel for the Sth Respondent submitted that ever since the close of pleadings in September 2023, the Applicants have not taken out summons for directions and therefore the suit abated under Order 11 A Rule 6 of the Civil Procedure Rules. 6 - 7. Under Order 11 A Rule 6 of the Civil Procedure Rules it is provided that if the plaintiff does not take out a summons for directions within 28 days from the date of the last reply the suit shall abate.

- In the case of Seruwu Jude Vs. Swangz Avenue Limited Civil 8. Appeal No. 39 of 2021 Mubiru J held that Order 11 A Rule 6 is directory and not mandatory and that court must satisfy itself that the decision to abate a suit is necessary before it is abated. - The fact that the Applicant filed this application shows that the 9. Applicant/Plaintiff is interested in the main suit. I also note that there is no court order dismissing the main suit. The preliminary objection is therefore overruled. - The issue for resolution is whether the Applicant should be 10. granted leave to amend the Plaint in Civil Suit No. 568 of 2023. - Under Order 6 Rule 19 of the Civil Procedure Rules it is provided 11. as follows:

The court may, at any stage of the proceedings, allow either party to alter or amend his or her pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy *between the parties.*

- The principles for granting leave to amend proceedings as stated 12. in the cases of Gaso Transport Services (Bus) Ltd V. Obene SCCA No.4 of 1994 [1990-1994] 1 EA 88 and Mulowooza & Brothers Ltd vs Shah & Co. Ltd, SCCA No. 26 of 2010 are as follows: - There is no injustice caused to the other party and if $\overline{a}$ there is it can be compensated by costs. - Amendments are allowed by courts so that the real $\mathbf{b})$ question in controversy between the parties is

determined and justice is administered without undue regard to technicalities.

- The amendment would not prejudice the rights of the $\mathbf{c})$ opposite party. - The application should not be malafide. $d$ - Multiplicity of proceedings should be avoided. $e)$ - In the case of Eastern Bakery Versus Castelino Sir Kenneth 13. O'Connor (1958) E. A 461 held that: "Amendments to pleadings sought before the hearing should be freely allowed if they can be made without injustice to the other side and there is no injustice if the other side can be compensated by." - The Applicant submitted that at the time she filed the suit, the $14.$ suit vehicle was registered in the names of the 5th Respondent and that new facts surfaced which show that the vehicle was transferred to Aggrey Kanyomozi. The Applicant seeks to add Aggrey Kanyomozi to the suit as the 6th Defendant. - The Respondent argued that the amendment introduces a new cause of action which is barred by law. I have perused the 15. proposed amended plaint and the applicant seeks to include a new claim that "the 5th Respondent fraudulently with intent to defraud and or defeat the plaintiff's legally justified interest, sold/transferred the suit vehicle to the 6th defendant." I agree that the Applicant does indeed introduce a new cause of action. - However, in the case of Mulowooza & Brothers Ltd Vers N. 16. Shah & Co. Ltd, supra the Supreme Court held that "... moreover, learned counsel for the Respondent is right to state as he does in his submission that the Civil Procedure Rules do

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not bar introducing a new cause or causes of action through an amendment to a plaint."

17. The amendment is therefore not barred by law. In addition, I note that the amendment was sought before the hearing of the case. In the absence of evidence to the contrary I hnd that the amendment will not cause an injustice to the Sth Respondent and neither will it prejudice the 5'h Respondent. Furthermore, the amendment will prevent a multiplicity of suits. The Application is therefore allowed. The costs shall be in the cause.

# Dated this 21"t of June 2ol24

&-\. .........6'.

# Patricia Kahigi Asiimwe

Judge

Delivered on ECCMIS