Musisi v Kampala City Council (Civil Suit 60 of 1993) [1994] UGHC 46 (18 November 1994)

Full Case Text

## THE REFUBLIC OF UGANDA

## IN THE HIGH COURT OF UGANDA AT KAMPALA

## CIVIL SUIT NO. 60 OF 1993

DONOZIO MUSISI SEKYALA ::::::::::::::::::::::: PLAINTIFF $V E R S U S =$

KANPAIA CLTY COUNCIL ::::::::::::::::::::::::::::: DEFENDANT BEFORE: THE HONOURABLE MR. JUSTICE I. MUKANZA

RULING:-

This is a chamber summons by the Applicant/Plaintiff brought under order 6 rule 18 of the civil procedure rules seeking for an order from this court that leave be granted to the plaintiff/ applicant to amend his plaint. The application is supported by an affidavit deponed to by one John P. Kityo.

In his address to this court the learned counsel appearing for the applicant almost rehearsed what was depend to in the affidavit in support of the application. He submitted that the application was to amend the name of the defendant to read City Council of Kampala. He discovered that the defendant was sued as Kampala City Council whereas the title with court it is called City Council of Kampala and his learned friend in their defence pleaded that Kampala City Council does not exist. That was just a mistake. The amendment should be allowed since they were not introducing a new cause of action.

Mr. Mutyaba opposed the application. He submitted that in his written statement of defence para 2 stated that the defendant is non existent. He argued that the defendant being non existent you could not sue a non existent body and as such the pleadings can not be amended.

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On the second claim for loss of earnings which claim he submitted was not included in the plaint taking into account that the City Council is one of the scheduled bodies he submitteit should have been given the statutory notice. The statutory notice is meant to show the nature of the claim and the person liable. Mr. Nutyaba further submitted that the cause of action took place in 1992 and the clair was to be made within a year. He contended that the claim is time barred and an amendment in that respect could not be permitted.

In reply Mr. Kityo referred the court to paragraph 4 of the affidavit and submitted that the name of the defendant had been misstated as Kaipela City Council instead of City Council of Kampala. A close study of the written statement of defence the pleadings show that the defendant was in existence. And as regarded the statutory notice that the defendant were not issued with one that could be his defence. He argued that the Town Clerk was served with the statutory notice as far back as 13th November 1992.

Order 6 rule 18 of the civil procedure rules provides that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may/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.

Ordgers "Principles of pleading and practice in civil Action in the High Court of Justice 19th Edition at p 164 particularly at p 166 had this to say about the amendment of pleadings.

> The general rule is that a plaintiff will not be allowed to amend by setting up fresh claims in respect of causes of action which since the

> > . . . . . . /3. .

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issue of the writ have become barred by the limitation Act Weldon $\nu$ Meal $1887\,$ 19QBD page 394 Hall v Mayrick 1957 2 QBD 455.

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But exceptions may be in three cases if justice so requires.

- (i) The name of a party may be corrected even if the effect is to substitute a new party, provided that the wrong was given through a genuine mistake which was not misleading or such as to cause any reasonable doubt as to the identity of the intended plaintiff or defendant. - (ii) The capacity in which a party sues or counterclaims may be altered to one in which he might have sued at the date of the writ or counterclain. - (iii) A new cause of action may be added or substituted if it arises in the facts or arise out of the same facts or substantially the same effects as gives rise to cause of action already.

As could be deduced from the provisions of the law enunciated in the authorities cited above the plaintiff is free to amend the pleadings by amending Kampala City Council to read City Council of Kampala because it is obvious that was a genuine mistake which was in no way misleading. Such amendment will not cause any reasonable doubt to the identity of the intended defendant. I am in the circumstances not agreeable with the submissions of the learned counsel appearing for the defendant that the plaintiff was non existent and therefore that being a non existing party could not suc. The name of a party could be corrected even if the effect was to substitute a new party which was not the case here.

In addition this amendment will substantially in no way change the action into one of substantially different character

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Ralcigh vs Gosahan 1891 EAC 81 ch 73. 81. Also amendment would not cause injustice to the defendant prejudice the rights of the defendant existing at the date of the proposed amendment Woldon V. Neal 1887 9QBD at page 394.

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Then in Cooper vs. Smith 1884 26 ch DF 700 at p 711 Boween J had this to say briefly about amendments.

> "All such amendments shall be made as may be necessary for the purpose of determining the necessary for the purpose of determining the real questions in controversy. I have found in my experience that there is one panacea which heals every sore in litigation and that is costs. I have very solden if ever been unfortunate enough to come across an instance where a person has made a mistake in his pleadings which has put the other side to such a disadvantage as that it can not be cured by the application of that healing modicine".

I agree with the proposition of the law given by the learned Judge in that the amblication for amendment if granted the defendant could be awarded costs for the same.

It was argued on behalf of the Respondent that no statutory notice was served on the Defendant in accordance with Act 20 of 1969 and that the suit was also time barred. It was submitted on behalf of the plaintiff that in fact such notice was served. All this was evidence emanating from the bar. I am of the view that if either party had sworn affidavits to that effect that could have gone along way in resolving the dispute.

In regard to the submission by Mr. Mudyaba that suit was time barred. To begin with in his written statement of defence the defendant did not allege that the action was time barred. It would appear the defence wants to raise some new matters which were not raised in their pleadings. This is not acceptable. Moreover given the fact that this court was merely entertaining the application for amendments I do not think this is the right moment to consider the nerits of the case.

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Finally Mr. T-.utyaba touched in his submission about the loss of earnings by the plaintiff which claim was not included in the plaint, In his submissions Mr. Kityo did not mention anything about the referred to loss of earnings, I do not have this on record. All the same the said loss earnings did not merit consideration by the court.

In the end the sum total of all this is that' the plaintiff is granted Icavo to amend the plaint with costs in the cause Amendment to bo made out within 14 days from delivery of this ruling,

I. MUWTZA ] J U D G E 13/11/94

Mr. Kityo for the plaintiff - present Mr. Kutyaba for the defendant - present • Court Clerk Mr. liusokc - present Ruling is road and signed. A

I. MUICAITZA JUD G E 18.11,1994