Mombasa Salt Works Limited and Another v Ali Madhi Osman t/a Camel Trade Promoters (Civil Appeal No. 30 of 2002) [2003] UGCA 34 (8 May 2003)

Full Case Text

## THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA.

## CORAM: HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE A. E. N MPAGI-BAHIGEINE, JA HON, MR. JUSTICE S. G ENGWAU,JA.

### CIVIL APPEAL NO. 30 OF 2OO2

### ll)

#### BETWEEN

- 1. MOMBASA SALT WORKS L|M|TEDI - 2. GLoBAL DTSTRTBUToRS LTMTTED l APPELLANTS

#### AND

#### ALI MADHI0SMAN T/a CAMEL TRADE PROMOTORS= RESPONDENT

(Appeal from the ruling and Order of the High Court at Kampala (Okumu Wengi, J) dated 30.10.2001 in l\,4iscellaneous Application No 157 of 2001 arising from H,C. C S No. 170 of 2001).

# O JUDGMENT OF S. G. ENGWAU J. A.

The appellants, Mombasa Salt Works Limited and Global Distributors Limited had jointly sued the respondent, Ali N/adhi 0sman who was carrying on business in Uganda under the names of Camel Trade Promoters and Camel Trading Company, He was sued in special and general damages for breach of a contract, lt appears from the pleadings that both parties had a business transaction in which the appellants supplied and the respondent received goods worth United States dollars 43,838 but did not pay for them, The suit was filed in the High Court at Kampala on the 30rh lt/arch, 2001 vide HCCS No 170 of 2001 The respondent filed his written statement of defence on the 1 1th April 2001 .

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The case was fixed for hearing on the 24th April, 2001 but it was not heard. As two key witnesses for the appellants were about to leave Uganda permanently, the learned trial judge ordered that those witness swear and lodge their affidavits in

court. He also ordered that, thereafter, counsel for both partles should file their written submissions in respect of the respondent's N/iscellaneous Application No, 157 of 2001 to have the substantive suit struck out.

The application, in the words of the trial judge, was rejected as follows: " what therefore is clear is that an individual ordered goods either personally or using his trade name or business Camel Trade Promoters from the Plaintiffs". The complaint in that application was that the plaint was defective as the respondent was sued both in his personal and business names, That objection was overruled and the trial judge made an order that the plaint should be amended and the title "Camel Trade Promoters" be deleted and with no reference to a " Limited Company".

Following that ruling and order, the counsel for the appellants amended the plaint but the business name "Camel Trade Promoters" still appeared undeleted. Sticking to his gun, counsel for the respondent again applied to have the plaint struck out for the same reasons as before. This prompted Mr. Mugenyi, counsel for the appellants to respond as follows: "Mugenyi :- I pray that we strike out Camel Traders. ldid not understand the ruling."

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say

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ln his ruling on the preliminary objection, the learned trialjudge had this to

"Looking at the plaint as amended one notices clearly that the amendment as to parties in particular the change in the defendant or the description of the defendant was not effected, as ordered, by Mr. Mugenyi's amended plaint. He possibly refused to effect the amendment for a purpose. Would in the circumstances be compelled to strike out the party described as the defendant in the amended plain, (sic). This means that the plaint is left with the plaintiff without a defendant. I accordingly reject the plaint in terms of Order 7 rule 1 1 (a), (d) and (e) of the Civil Procedure Rule with costs".

As a result of that ruling, the appellants have appealed to this court on the following grounds, namely:-

1. The trial judge erred in law and fact when he struck out the party described as the defendant on the amended plaint on grounds that the appellants' counsel had failed to delete a repeated "Camel Trade Promoters" in the title of the plaint and held as such that the plaint is left without a defendant.

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2. The trial judge erred in law and fact in rejecting the plaint under Order 7 rule 11 (a), (d) and (e) of the Civil Procedure Rules by relying on drafting errors in the title and not on the basis of the pleading.

- 3. The trial judge erred in law and fact when he struck out the defendant without evaluating the evidence on record. - 4. The trial judge erred in law when he held that the amended plaint did not comply with Order 7 Rule 11 (a), (d)and (e)Civil Procedure Rules whereas he had previously ruled that the plaint disclosed a cause of action.

## 5, The trial judge erred in law and fact when he refused to rule on an oral application prior to the ruling and allow the counsel for the appellants to delete the repeated " Camel Trade Promoters".

ln arguing this appeal, counsel for both parties filed their written submrssions in the Registry under rule 97 of the Rules of this court, Learned counsel for the appellants, Mr. Yese Mugenyi, argued the above grounds separately whereas Mr. Enoc Mugabe for lhe respondent argued grounds 1,3 and 5 separately and grounds 2 and 4 together, For convenience, I would like to deal with the above grounds as follows: Grounds 1, 3 and 5 together and grounds 2 and 4 also jointly on ground of overlapplng,

The complaint on the 'l.tground is against the striking out of the party described as the defendant from the amended plaint As for the 2nd ground, the complaint is against the striking out of the defendant without evaluation of evidence on the record. On the Sth ground, an oral application to delete "Camel Trade Promoters" was made but the trial judge arbitrarily refused to consider it without any ruling,

On ground 1, Mr, lVugenyi submitted that the 2nd paragraph of the amended plaint specifically pleaded that the defendant was a male adult, carrying on business in Uganda under the names of "Camel Trade Promoters" and or "Camel Trading company", ln his ruling on the matter on the 16th N/ay 2001 the learned trial judge stated thus: 'the plaintiffs are free to proceed against the defendant trading in his business name - that is not a registered or incorporated company and call evidence on all the issues but without reference to a limited company".

According to counsel, it was an enor for the trial judge to make another ruling on the 30th October, 2001 to the effect that failure to delete those business names, resulted into there being no defendant, He argued that failure to delete those business names was not fatal to the pleading and sufficient to vitiate the .10

proceedings, ln his view, thefailure was an omission, which could be conected as a misnomer or a lapse that was not intended to mislead the court. He submitted that had the trial judge perused the reply to the amended plaint, he would have realised that the respondent was a party to the suit. Katuramu vs. Attornev General (1986) HCB 40 was cited as authority where it was held that although a plaint does not include a reply by the plaintiff nevertheless a reply forms part of the plaintiffs pleadings and is therefore part and parcel of his case, Where a reply is filed in answer to a defence, it must be considered together with the plaint with the resull that it may supplement or cure any deficiency in the plaint.

In light of the above decision, lt/r, Mugenyi submitted that in the present cade the learned trial ludge did not consider the respondent's reply to the written statement of defence to the amended plaint Had he done so, he would have found that the respondent was actually the party the appellants had intended to sue. Learned counsel further submitted that if the trial judge had read the plaint together with all its annextures, he would have realised that the defendant in the plaint was Ali It/adhi Osman whom the appellants had intended to sue. Counsel cited and relied on the princip les laid down in Davies Vs. Elsby Brothers Limited (1960) 3 All E. R. 676 and J. B. Kohliand othersVs. BachulalPopatlalll964l E. A.219 ln fact,Mr Mugenyi submitted that the learned trialjudge in his ruling dated 16th May 2001 said that "what therefore is clear is that an individual ordered goods either personally or using his trade or business name Camel Trade Promoters from plaintiffs". ln counsel's view, this ruling recognises the fact that the appellants had intended to sue the respondent. Therefore, failure to delete "Camel Trade Promoters" was not fatal to the pleading as it was a misnomer which could have been corrected even by the court by authority ofsection 103 of the Civil Procedure Act which provides:

"Section 103. The court may at any time, and on such terms as to costs or otherulise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding".

ln counsel's view, the above section does not vest court, with powers to relect documents with errors. lt, instead, empowers a court to rectify errors for the purpose of determining the real question or issue raised by or depending on the proceedings, Thus the ruling under appeal was wrong. The decision was arbitrary without any basis in law, he argued,

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On the other hand, Mr. Enoc Mugabe, learned counsel for the respondent advanced two reasons why he is supporting the striking out of the plaint by the trial

judge. The first reason is that the appellants did not comply with court order which required them to amend the plaint by deleting the repeated " Camel Trade Promoters" in the title to the plaint Secondly, it was not clear from the plaint who the intended defendant was.

Besides the above reasons, Mr. Mugabe contended that the respondent was a wrong party to be sued because he was not a limited liability company. He argued that the description of the intended defendant was not clear from the plaint, He said that the respondent came to be a defendant to the suit because there was no olher way by which he would present his case outside the pleadings. He then concluded by asserting that all the authorities cited by counsel for the appellants are not relevant to the present case. He said lhat article 126 (2) (e) of the Constitution cannot save the appellants who sat on their rights by not amending the plaint as directed by court in exercise of its discretion under section 35 of the Judicature Statute No 13 of 1996

The arguments advanced by counsel for the respondent are, in my view, untenable. The learned trial judge should have, in the first place, read the plaint together with all the annextures as a whole in order to ascertain the description of the person the appellants had intended to sue. ln my view the question is not whom the appellants had intended to sue but rather whether a reasonable man reading all the documents in the proceedings before court and having regard to all the circumstances of the case, would have no doubt that it was the respondent whom the appellants had intended to sue. lf he would have no doubt as lo the person to be sued it would be a case of misnomer.

30 In the present case, the learned trial ludge after reading the plaint and all the annexlures thereto stated thus: "what therefore is clear is that an individual ordered goods either personally or using his trade or business name "Camel trade Promoters", He then ruled that "the plaintiffs are free to proceed against the defendant trading in his business name i.e is not a registered or incorporated company and call evidence on all issues but without reference to a limited company". In my view, the trial judge had identified the respondent as the person the appellants had intended to sue. However, the mere fact that there was reference to "a limited company", did not vitiate the amended plaint or proceedings. Evidence should have been called and the real defendant would have been identified and the intended defendant who was not a party would have been discharged from the suit.

ln all the circumstances of this case and looking at the documents as whole, it is clear that the appellants had intended to sue the respondent but got his name wrong, " Camel Trade Promoters or Camel Trading Company" with a reference to

a limited company. That, in my view, is a case of mere misnomer which could have been corrected in terms of section 103 of the Civil Procedure Act for the purpose of determining the real question or issue raised by or depending on such proceedings which the trialjudge did not do. Under section 35 of the Judicature Statute, the trial judge was empowered to completely and finally determine all controversial matters in this suit with an objective of avoiding multiplicities of suit, but did not do so, I flnd, therefore, no justification for strlking out the amended plaint in this case. Ground 1 of this appeal has merit,

As regards the 3d ground, Appellants'complaint is that the learned trial judge erred when he ruled that there was no defendant to the proceedings whereas there is evidence on the record, which indicates othenrvise. Learned counsel contended that the trial judge did not evaluate the respondent's affidavit evidence on record in respect of Miscellaneous Application Nos 157 and 459 of 2001, dated 19th April, 2001 and 4tt October, 2001 respectively, arising from the original H,C. C,s No. 170 of 2001. Had he addressed himself on the respondent's affidavit evidence in question, he would have found that the respondent was a party to the suit. He was the defendant in H C . C S No. 170 of 2001

ln reply, counsel for the respondent submitted that the purpose for the respondent filing a defence describing himself as a defendant, was for purpose of locus, I do not agree with this kind of argument because reading the amended plaint as whole and the annextures thereto, it is clear to me that the appellants had intended to sue the respondent for breach of a contracl in respect of a business transaction. Ground 3 also has merit,

l0 As for the 5tt ground, the complaint is that the words "Camel Trade Promoters" were still repeated on the amended plaint in defiance of the court order. Counsel for the appellant conceded that it was an oversight and made an oral application to strike those words out as follows: " Mugenyi:- I pray that we strike out Camel Trades (sic). I did not understand the ruling", He then cited and relied on the case of D. D. Bawa Limited Vs. G. S. Didar Sinqh t19611 EA 282 specifically at page 284 where Sir Audley lVckisak, CJ held: "l do not doubt, therefore that in a proper case, the court can allow a pleading to be amended during the trial on an oral application". In light of that decision, lVr, Mugenyi submitted that the trial judge, in the instant case, should have allowed an amendment by deleting the words "Camel Trade Promoters" from the plaint, but instead made a ruling striking out the plaint altogether.

Mr. lVugabe responded to the above complaint as being misconceived because no oral application was made in terms of Order 6 rule 24 of the Civil Procedure Rules but that instead counsel for the appellants invoked section 102 of -10

the Civil Procedure Act which was not applicable In conclusion, he submitted, therefore, that it is not true that the trial judge, in exercise of his discretion, rejected such an application.

Clearly, according to the record of proceedings, Mr, Mugenyi on 15th October, 2001 made such an oral application before the trial 1udge. Unfortunately, with due respect, that application was ignored and the learned trial judge arbitrarily came up with a ruling striking out the amended plaint for defiance of courl order which required the words " Camel trade Promoters" to be deleted from the plaint. There was no justification to strike out the plaint, The trial judge should have, instead, allowed an amendment of the plaint to correct the misnomer. Ground 5 must also succeed.

On grounds 2 and 4, the complaint is that having struck out the defendant, the trial judge held that the plaint did not disclose a cause of action and that the plaint did not comply with Order 7 rule'11(a) (d) and (e) Civil Procedure Rules which Provides:

" 11. The plaint shall be rejected in the following cases -

- where it does not disclose a cause of action; ) a - ) b - ) c - where the suit appears from the statement in the plaint to be barred by any law; and ) d - where the suit is shown by the plaint to be frivolous or vexatious", (e) a

l0 It was the contention of counsel for the appellants that the question whether a plaint discloses a cause of action or not must be determined upon the perusal of the whole plaint together with all other annextures. In his view, the trial judge did not address himself to the substance of the appellants' claim. lt was the trial ludge himself who arbikarily struck out the respondent's names on ground that a repeated words " Camel Trade Promoters" were still on the amended plaint despite court order to delete the same. He argued that a repeated word in a plaint does not negate a cause of action or vitiate what is pleaded. Accordingly, in his ruling dated 16th May, 2001, the trialjudge disallowed the request to strike out the plaint and instead ruled that the appellants were free to proceed with the suit against the respondent trading in his business name and call evidence on all issues but without reference to a limited company.

Learned counsel further argued that reference to a "limited company" on the amended plaint was a mere misnomer which could have been corrected, He submitted that despite an oral application to have that misnomer deleted, the learned trial ludge refused to invoke the provisions of section 103 of the Civil Procedure Act which empowers him to do so, The trial judge can only reject a plaint if he was of the opinion that the court was incapable of amending the plaint or effecting any other necessary amendments to determine the real questions or issues raised by the proceedings. He argued that if the trial judge was desirous to reject the plaint under Order 7 rule 1 1 of the Civil Procedure Rules, he ought to have applied the principle in S,S. Gupta Vs. lnder Sinq Bharma [19651 E. A. 439 which requires that the plaint must be such that no legitimate amendment can be made which would make it disclose a cause of action.

ln conclusion, Mr. Mugenyi submitted that, except by way of appeal, it is trite law, that no trial judge is empowered to hear, review or vary any judgment or an order after it has been entered. Apparently, counsel was relying on the doctrine of res ludicata as stipulated in section 7 the of Civil Procedure Act. ln his view, the trial judge had earlier made a ruling on the 16th May 2001 in which he refused to strike out the plaint in H. C. C. S N0. 170 of 2001. According to counsel, the trialludge was wrong to strike out the same plaint in his subsequent ruling dated 30th October, 2001 because that would violate section 7 of Civil Procedure Rules on ground of res ludicata.

He further submitted that the trial judge, instead, on his own motion and without an application from the respondent, revisited a matter which he had already made a ruling on. He said that if that was the intention of the trial judge, then he should have proceeded under section 83 of the Civil Procedure Act and Order 42 rr. 1and2 of the Civil Procedure Rules which empower him to review his own decision or order othenruise any clerical or arithmetical errors could have been corrected under section 102 of the Civil Procedure Act,

a"4 Counsel for the respondent argued that the 1sr and 4th grounds of this appeal are misconceived because the appellants did not appeal against the ruling which ordered them lo amend their pleadings, which they in fact omitted to do, Consequently, the appellants cannot now invoke Order 18 rule 4 of the Civil Procedure Rules and section 2 of the Civil Procedure Act. According to counsel, the plaint from the time of filing the suit did not disclose a cause of action against the respondent because it was not clear in which capacity he was being sued, lt was because of that the trial judge ordered for an amendment to exclude a reference to a Limited Company. As the appellants failed to amend the plaint in line with court order, counselsubmitted, the trialjudge was justified to hold that the plaint did not

disclose a cause of action and therefore, struck it out.

ln my view, the arguments advanced by counsel for the respondent are untenable. As I have already mentioned elsewhere in this judgment the trial judge, with due respect, is empowered to allow all the necessary amendments on the plaint under section 103 of the Civil Procedure Act for the purpose of determining all the issues raised in the pleadings to avoid multiplicity of suits. He should have read the whole plaint together with all its annextures flrst, According to the pleadings, the trial judge would have found that the respondent was a party whom the appellants had intended to sue, He was being sued in his business names. Perusal of the plaint and annextures as whole reveals that there was a business transaction between both parties and the respondent was being sued for breach of that contract. He was supplied with some goods which he received but failed to pay for them. There was, therefore, no justiflcation to strike out the plaint in terms of Order 7 Rule 11 (a), (d) and (e) of the Civil Procedure Rules.

> 7- Grounds /and 4 also succeed.

l0 ln the result, I would allow this appeal with costs and with an order for the Registrar to send this case to the High court at Kampala for another ludge to proceed with the hearing of the suit, I so order.

Dated at Kampala this day of rlyl. .. 2003. gk

Justice of Appeal S G. Enlhau

o # THE REPUBLIC OF UGANDA IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

CORAM: HON. MR. JUSTICE G. M. OKELLO, JA. HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA. -HON. MR. JUSTICE S. G. ENGWAU, JA.

## CIVIL APPEAL NO. 30 OF 2002

Between

#### **MOMBASA SALT WORKS LIMITED** 1. <pre>1 :::::::::::: APPELLANTS</pre> $2.$ GLOBAL DISTRIBUTORS LIMITED

AND

ALI MADHI OSMAN T/a CAMEL TRADE PROMOTORS ....................................

> [ Appeal from the ruling and Orders of the High Court (Okumu-Wengi, J.) at Kampala dated 30-10-2001 in **Miscellaneous Application No.157 of 2001 from** HCCS No.190 of 20011

## JUDGMENT OF G. M. OKELLO, JA.

I have had the chance to read in draft the judgment of Engwau, JA, and I agree that the appeal must succeed. I have only one or two remarks to make on the case for emphasis only.

The background facts of the case have been ably set out in the judgment of Engwau. JA. I shall therefore not repeat them.

$\mathbf{1}$

The real issue in this appeal is whether the trial ludge was justrfied to reject the plaint under O.7 rule 11 (a) (d) and (e) of the Civil Procedure Rules. Leamed counsel for the appellant pointed out that the learned trial judge had in his earlier ruling dated 16-5-2001 found that there was a defendant in the surt when he stated in the ruling that.-

# " What therefore is clear is that an individual ordered goods either personally or using his trade or business name Camel trade Promoters from the plaintiffs."

Leamed counsel argued that having made that finding the tnal judge was not justified to rejecl the plaint under the above rules Failure of the appellant to delete the repeated words " Camel Trade Promoters'' rn the plaint was no lustification for relecting the plaint under O 7 r 11 (a) (d) and (e) of the Civil Procedure Rules He could have corrected the defect under section 103 of the Civil Procedure Act "for the purpose of determinrng the real question or issue raised by or pending on such proceeding.'

O Mr Enoc Mugabe. leamed counsel for the respondent. held a contrary view. He contended that the tnal .1udge was right because the appellant did not comply with the murt order to delete the repeated words 'Camel Trade Promoters in the plaint. Without that deletion it was not clear who the appellants intended to sue

O 7 r 11 (a) (d) and (e) of the Civil Procedure Rules enloin courts to reject a plaint.

(a) where it does not disclose a cause of action,

- (b) where the suit appeans from the statement in the plaint to be barred by any law. - (c) Where the suit is shown by the plaint to be frivolous or vexatious.

The impugned Amended Plaint reads:-

- The 1n plaintiff and 2d plaintiff are duly incorporated company (sic) and are carrying on business in Uganda and whose address for services for the purpose of this suit is Mugenyi & Co Advocates, P. O. Box 5600, Kampala. 1 - 2 The defendant is an adult male and carrying on business under the names of Camel Trade Promoters and/Camel Trading company in Uganda upon whom the plaintiffs' advocates will undertake to serve the defendant with court summons. - The plaintiffs claim against the defendant is for special damages of Uganda shillings arising from non-payment of United States dollars 43,838 of goods supplied and for general damages arising thereof. 3 - Facts from which the cause of action arose are as follows: 4.

- (a) That during the period from May to July 2001, the defendant ordered for consignments of goods at a reasonable agreed upon price from the 1"t and 2d plaintiffs' offices at plot 15 William Street Kampala from the plaintiffs. - (b) The plaintiff company on the receipt of those orders dispatched the said goods ordered from Mombasa to tlalaba Go down then to Kampala, Uganda for delivery to the defendant Photocopies of the Export lnvoices, lmport Declaration Forms lnvoice and Delivery Note are hereto annexed and marked annextures A to N11" and Annextures P Q R and annextures I to XXll! andAnnextures S to V.

- (c) The defendant took delivery of the said goods and part paid for some of the goods but has since refused, neglected and/or failed to pay USD /8838 outstanding on the said invoices- A statement of account showing the outstanding amount are hereto annexed and marked annexturesXYandZ. - The plaintiff shall contend that as a result of the defendant's non-payment it has suffered a great financial loss and 5

special damages of United States dollars 43838 as exhibited in the statement of account hereto annexed.

- 6 The plaintiffs shall aver that the defendant does acknowledge the debt inclusive of all outstanding arreani and has paid partial deposits in settlement of ttose arrears although it never cleared all of them. - 7. The cause of action arose within the jurisdiction of this honourable Court and notice of intention was duly served.

Wherefore

It was stated by the Former Court of Appeal for Eastern Africa in Auto Garaqe and others vs ilotokoi (1971) EA 574 that for a plaint to disclose a cause of action it must show -

- (a) that the plaintiff enjoyed a right. - (b) that the right has been violated and - (c) that the defendant violated it.

Further that in determining whether or not a plaint discloses a cause of action only the plaint and its annextures must be looked at Once those ingredients are included then. the plaint discloses a cause of action and any other defects rn it may be put rrght by amendment.

ln the instant case. paragraphs 3 - 5 above disclose all the ingredients necessary for a plaint to disclose a cause of action The plaint therefore could not have been re1ected under O 7 r 11 (d) because there is nothrng in the statements an the plaint to show that the claim is time barred Similarly the plaint could not have been rejected under O 7 r 11 (e) because the claim is neither frivolous nor vexatious The appellants are claiming for unpaid large sum of money under a contract of sale That is not a fnvolous or vexatious action.

Any other defect like failure to delete the repeated words "Camel Trade Promoters" could have been put right by amendment ln any case the record shows that counsel for the appellant informally applied for that deletion to be made This could have been effected under O 6 r 18 of the Civil Procedure Rules The learned trial .;udge gave no reason why that application was relected Counsel for the appellants explained that his failure to delete those words was due to his misunderstanding of the court order. That was an honest explanation but still the learned trial judge gave no reason why he rejected it

ln my view. the relection of the plaint was improper and it occasioned a miscamage of justice to the appellants

ln the result. I would allow the appeal with costs to the appellants As Mpagr-Bahigeine. JA. also agrees the appeal stands allowed on that term with an order that the original file of the suit be returned to High Court Kampala for the re-allocation to another,;udge to hear and dispose of the dispute.

Dated at Kampala this 3 day of Mory 2003. $\mathbf{0}$ G. M. Okello JUSTICE OF APPEAL

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## THE REPUBLIC OF UGANDA

## IN THE COURT OF APPEAL OF UGANDA AT KAMPALA

#### HON MR JUSTICE G. M. OKELLO, JA CORAM: HON. LADY JUSTICE A. E. N. MPAGI-BAHIGEINE, JA HON. MR JUSTICE S. G. ENGWAU, JA.

### CIVIL APPEAL NO.30 OF 2002

### **BETWEEN**

#### **MOMBASA SALT WORKS LIMITED** $1.$ GLOBAL DISTRIBUTORS LIMITED:::::::::::::::::::::: APPLELLANTS $2.$

#### AND

## ALI MADHI OSMAN T/a <table> CAMEL TRADE PROMOTORS RESPONDENT

[Appeal from the ruling and Order of the High Court at Kampala (Okumu Wengi, J) dated 30.10.2001 in Miscellaneous Application No.157 of 2001 arising from H. C. C. S No.170 of 2001].

## JUDGMENT OF A. E. N. MPAGI-BAHIGEINE, J. A.

I have read the judgment of Engwau, JA. I entirely agree that the appeal should succeed.

The learned Judge seems to have proceeded on wrong principles. It is a cardinal principle that before striking out a party from a suit or the pleadings for non disclosure of a cause of action, the Court ought to peruse all the pleadings together with the annextures thereto – Davis Vs Elsby Brothers Limited (3) (1960) 3 AER 676. Had the learned Judge done this, he would have found that mere repetition of the defendant/appellant's trade name was a misnomer and a purely careless mistake on part of his counsel, which he had acknowledged. He would also have clearly found that the cause of action had been disclosed.

For the reasons stated in the judgment of Engwau, J. A the appeal should succeed. I have nothing useful to add.

$8A$ Day of May 2003 aw Prend Dated at Kampala this ..... . E. N. MPAGI-BAHIGEINE JUSTICE OF APPEAL